70 F.3d 850 (6th Cir. 1995), 94-1292, United States v. Breinig

Docket Nº:94-1292.
Citation:70 F.3d 850
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Norbert BREINIG, Defendant-Appellant.
Case Date:December 01, 1995
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 850

70 F.3d 850 (6th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

Norbert BREINIG, Defendant-Appellant.

No. 94-1292.

United States Court of Appeals, Sixth Circuit

December 1, 1995

Argued Oct. 6, 1995.

Page 851

Karen L. Reynolds, Blondell Morey, Asst. U.S. Atty., Office of U.S. Atty., Detroit, MI, for plaintiff-appellee.

Richard M. Lustig (argued and briefed), Richard M. Lustig, P.C., Birmingham, MI, for defendant-appellant.

Before: LIVELY, RYAN, and SILER, Circuit Judges.

RYAN, Circuit Judge.

Defendant, Norbert Breinig, together with his former wife, Joan Moore, was charged with violating 26 U.S.C. Sec. 7201 by wilfully attempting to evade and defeat federal income taxes for the years 1986 and 1987. The district court ordered a joint trial of the defendants. Because he anticipated that there would be antagonistic defenses, Breinig moved for severance and a separate trial under Fed.R.Crim.P. 14, which the district court denied.

Moore presented a defense of diminished capacity to negate her mens rea, which required the introduction of highly prejudicial evidence of Breinig's bad character; evidence that would not have been admissible against Breinig had he been tried alone. At the conclusion of a jury trial, Breinig was convicted and Moore was acquitted.

For the reasons we explain below, we REVERSE the defendant's conviction and sentence, and REMAND for further proceedings consistent with this opinion.

I.

On April 8, 1993, a federal grand jury indicted the defendant and his former wife, Joan Moore, on two counts of willfully attempting to evade and defeat their federal income taxes for the tax years 1986 and 1987, in violation of 26 U.S.C. Sec. 7201. The indictment alleged that both parties wilfully underreported income they had earned through their family-run lawn-mowing and snowplowing business.

The district court decided to try both defendants together pursuant to Fed.R.Crim.P. 8(b). Prior to trial, Breinig moved for severance and a separate trial under Fed.R.Crim.P. 14, a motion in which Moore joined. Breinig claimed his proposed defense would be "violently antagonistic" to that of his former wife; Moore, in turn,

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claimed that she could not endure sitting through a joint trial with Breinig "without breaking down." The trial court denied both motions and their joint trial proceeded as scheduled. The facts relating to the tax evasion charges are not important for purposes of this appeal. The only issue on appeal is the denial of severance and a separate trial for defendant Breinig.

The trial took place against a backdrop of severe antagonism between the defendants; their relationship was hostile since before...

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