United States v. Shuford

• Decision Date: 23 December 1971
• Docket Number: 71-1425.,No. 71-1424,71-1424
• Citation: 454 F.2d 772
• Parties: UNITED STATES of America, Appellee, v. E. Graydon SHUFORD, Appellant. United States of America, Appellee, v. Herman S. JORDAN, Jr., Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

454 F.2d 772 (1971)

UNITED STATES of America, Appellee, v. E. Graydon SHUFORD, Appellant.

United States of America, Appellee, v. Herman S. JORDAN, Jr., Appellant.

Nos. 71-1424, 71-1425.

United States Court of Appeals, Fourth Circuit.

Argued August 23, 1971.

Decided December 23, 1971.

COPYRIGHT MATERIAL OMITTED

F. Lee Bailey, Boston, Mass. (N. Welch Morrisette, Jr., Columbia, S. C., Gerald Alch, Boston, Mass., Ralph C. Robinson, Jr., Columbia, S. C., on brief), for E. Graydon Shuford.

C. D. Hopkins, Jr., Hanahan, S. C. (Malcolm M. Crosland, Charleston, S. C., on brief), for Herman S. Jordan, Jr.

Marvin L. Smith and Robert G. Clawson, Jr., Asst. U. S. Attys. (John K. Grisso, U. S. Atty., on brief), for United States.

Before HAYNSWORTH, Chief Judge, SOBELOFF, Senior Circuit Judge, and WINTER, Circuit Judge.

SOBELOFF, Senior Circuit Judge:

This case raises one of the problems sometimes encountered when two criminal defendants, each surrounded by a multitude of procedural protections, are tried jointly and the effectuation of one defendant's rights necessarily works an infringement of the rights of the other.

E. Graydon Shuford and Herman S. Jordan, Jr., appeal from their convictions under 18 U.S.C. §§ 371 and 1001, for (1) the knowing submission of a false document with reference to a matter within the jurisdiction of the Department of Justice and (2) conspiracy. Each defendant was sentenced to 18 months imprisonment on each count, sentences to run concurrently.

I

The events leading to these convictions began in the fall of 1969 when Shuford, an attorney specializing in personal injury cases, helped establish the West Ashley Physical Therapy Laboratory ("Laboratory") in conjunction with one Gene H. Long. The latter, named in the indictment as a co-conspirator but never brought to trial, was an experienced physical therapist who ran the Laboratory and was responsible for billing patients and general record keeping. The Laboratory was formed in order to provide physical therapy for those of Shuford's clients who required such treatment.

Two weeks after the Laboratory opened, Long approached Shuford and told him that some of the physical therapy patients were not keeping their appointments. Shuford instructed Long to bill these patients for their unkept appointments anyway. Several days later, Long had occasion to speak with Jordan, a legal investigator employed in Shuford's office, about the unkept appointments. Jordan, when informed by Long of Shuford's earlier instructions, told Long to do as he had previously been directed.

Meanwhile, on November 17, 1969, Mack C. Wheat was involved in an automobile accident with an agent of the Federal Bureau of Investigation. Wheat retained Shuford as his attorney and was ultimately referred to the Laboratory for physical therapy. In January of 1970, Shuford filed on behalf of Wheat an administrative claim for settlement under the Federal Tort Claims Act. Appended to the claim was a bill for Wheat's physical therapy treatments at the Laboratory—a bill which included $45 in charges for three unkept appointments. No indication appeared on the face of the bill that these appointments were not kept. However, a hospital bill, also submitted with the claim, indicated that Wheat was in the hospital on the dates of the three appointments in question. The claim was therefore rejected and a criminal investigation was begun, resulting in the instant prosecution.

Before the trial began and again after the prosecution submitted its evidence, Shuford moved that Jordan's case be severed from his own so that he might have the benefit of Jordan's testimony.¹ Jordan likewise moved to have his case severed and joined in Shuford's motion. Although Shuford testified in his own behalf, Jordan ultimately decided not to take the stand. According to Jordan's statement to the court in support of Shuford's second motion for severance, two considerations prompted his decision not to testify: First, he wanted to avoid cross-examination that would bring to light certain prior convictions of his, and second, he planned to stand on the insufficiency of the Government's evidence and feared that if he took the stand in his own trial, he might strengthen the case against him by placing his credibility and demeanor before the jury. Shuford's attorney, arguing the motion for severance, further asserted, apparently without dissent by Jordan, that Jordan was not averse to testifying in Shuford's behalf at a separate trial, since his own defense would not thereby be jeopardized.

Before ruling on the motions for severance, the trial judge, in an endeavor to meet Jordan's objections to taking the stand in the joint trial, offered to forbid the Government from raising Jordan's prior criminal record on cross-examination. Jordan, however, still remained unwilling to testify, preferring to challenge the sufficiency of the Government's case without exposing himself as a witness in his own behalf. The trial judge denied the severance motions.

Shuford argues that only if severance were granted and Jordan were not before the court as a defendant could he have called Jordan to testify in his behalf. Since Jordan was the only witness Shuford could present to controvert the testimony of Long, the Government's chief witness, Shuford contends that denial of the severance so prejudiced his defense as to destroy the fairness of his trial.

II

Primarily for reasons of economy of time in judicial administration, the general rule has evolved that persons jointly indicted should be tried together. Hall v. United States, 83 U.S. App.D.C. 166, 168 F.2d 161 (1948); Dykes v. United States, 114 U.S.App.D. C. 189, 313 F.2d 580 (1962). This rule has particular strength where, as here, one crime may be proved against two or more defendants on a single set of facts or from the same evidence. United States v. Lebron, 222 F.2d 531 (2d Cir. 1955), cert. denied, 350 U.S. 876, 76 S.Ct. 121, 100 L.Ed. 774 (1955). Notwithstanding the need for efficiency in judicial administration, a joint trial is inappropriate if it sacrifices a defendant's right to a fundamentally fair trial. Baker v. United States, 329 F.2d 786 (10th Cir. 1964), cert. dismissed, 379 U. S. 853, 85 S.Ct. 101, 13 L.Ed.2d 56 (1964); Barton v. United States, 263 F. 2d 894 (5th Cir. 1959).

For these reasons, although Rule 14 of the Federal Rules of Criminal Procedure places the grant or denial of a severance in the sound discretion of the trial judge, Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954); United States v. Frazier, 394 F.2d 258 (4th Cir. 1968), if a "substantial degree of prejudice" springs from a joint trial, a severance is mandated. United States v. Morgan, 394 F.2d 973 (6th Cir. 1968); United States v. Burgio, 279 F.Supp. 843 (S.D.N.Y.1968). Not surprisingly, the facts peculiar to each case will determine whether sufficient prejudice exists to make the denial of a severance reversible error. Schaffer v. United States, 221 F.2d 17, 19 (5th Cir. 1955).

The reported decisions support the proposition that a severance is obligatory where one defendant's case rests heavily on the exculpatory testimony of his co-defendant, willing to give such testimony but for the fear that by taking the stand in the joint trial he would jeopardize his own defense.

The leading exposition of this proposition is United States v. Echeles, 352 F.2d 892 (7th Cir. 1965). Echeles, a member of the Illinois bar, was charged, together with two others, with suborning perjury, impeding the administration of justice and conspiracy. During the joint trial, it appeared that admissions previously made by Echeles' co-defendants would be introduced into evidence against them. Echeles contended that these admissions reflected unfairly on the question of his own guilt. Moreover, he asserted, other statements previously made by his co-defendants— absolving him from any part in the wrongdoing—would be admissible only if the co-defendants repeated them on the witness stand. Echeles moved for a severance on the ground that, since the Fifth Amendment prohibited him from calling his co-defendants to testify in his behalf, his only possible protection was through the grant of a severance. The trial court denied the motion. The Seventh Circuit reversed, holding on these facts that denial of the severance so prejudiced Echeles' defense that a new trial was required.²

The denial of a severance prejudiced Echeles by preventing him from effectively countering one important element of the prosecution's case. Similarly, in the instant case, rejection of the severance motion prejudicially denied Shuford the opportunity to present testimony highly relevant in the resolution of the issue of guilt or innocence.

III

At the trial, Jordan's testimony was sought by Shuford in regard to a crucial fact on which the Government and Shuford were in sharp disagreement, namely the precise nature of Shuford's instructions to Long regarding billing practices. Shuford testified that he advised Long that the Laboratory could bill patients for missed appointments, but he added the admonition that these items should be handled in a manner as not to appear in later litigation or settlement negotiations.³ Long, in contrast, testified to a version that was significantly different. He strongly suggested that Shuford was intending to use the misleading bills to enhance his clients' recoveries.⁴

Thus the situation presented to the jury was that if they credited Long, then they could find that Shuford intended to falsify the therapy bill submitted to the Government. On the other hand, if they believed Shuford, they could see him as the innocent victim of Long's failure to follow instructions. Plainly, the guilt or innocence of Shuford hinged, in large measure, on the outcome of this credibility dispute.

No other witness testified regarding Shuford's instructions to Long. Indeed the only other potential...