When defendants have been properly joined under Rule 8(b), a district court should grant severance only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants or prevent the jury from making a reliable judgment about guilt. See Zafiro
- U.S., 113 S. Ct. 933, 939 (1993).
The general rule is that “persons indicted together are tried together, especially in conspiracy cases.” See U.S. v. Pofahl. 990 F.2d 1456, 1483 (5th Cir. 1993).
But see In U.S. v. Neal, the defendants alleged that they were entitled to severance because their involvement was extremely limited and, therefore, a spillover effect would occur. U.S. v. Neal, 27 F.3d 1035, 1045 (5th Cir. 1994).
In Neal, the Court held that the defendant’s convictions vacated and remanded for a new trial given that the undisputed leader of the conspiracy would have testified on their behalf had severance been granted. U.S. v. Neal, 27 F.2d at 1047.
The defendants established a bona fide need for the leader’s testimony as the substance of that testimony was exculpatory in nature. U.S. v. Neal, 27 F.3d at 1047.