Cross v. United States, No. 17596-17597.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: BAZELON, , and BASTIAN and WRIGHT, Circuit
• Citation: 335 F.2d 987,118 US App. DC 324
• Parties: Harold S. CROSS, Appellant, v. UNITED STATES of America, Appellee. John L. JACKSON, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 17596-17597.
• Decision Date: 26 March 1964

118 US App. DC 324, 335 F.2d 987 (1964)

Harold S. CROSS, Appellant,
v.
UNITED STATES of America, Appellee.
John L. JACKSON, Appellant,
v.
UNITED STATES of America, Appellee.

Nos. 17596-17597.

United States Court of Appeals District of Columbia Circuit.

Argued October 30, 1963.

Decided March 26, 1964.

335 F.2d 988

Mr. Leonard Braman, Washington, D. C. (appointed by this court) for appellant in No. 17596.

Mr. James R. Stoner, Washington, D. C. (appointed by this court) for appellant in No. 17597.

Mr. William H. Willcox, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee. Mr. Barry Sidman, Asst. U. S. Atty., also entered an appearance for appellee.

Before BAZELON, Chief Judge, and BASTIAN and WRIGHT, Circuit Judges.

BAZELON, Chief Judge.

In a joint indictment, appellants were charged in Count I with robbery of a church rectory on February 23, 1962, and in Count II with robbery of a tourist home on May 2, 1962. Both appellants filed pretrial motions for severance of the counts.¹ The motions were denied.² The jury returned verdicts of guilty on Count I and not guilty on Count II. Appellants' chief contention on these appeals is that the District Court erred in refusing to sever the counts for trial.

We need not decide whether the joinder here of two offenses and two defendants was proper under Rule 8 of the Federal Rules of Criminal Procedure, because we think that, in any event, severance of the counts for trial was required by Rule 14.

335 F.2d 989

Rule 14 provides:

"If it appears that a defendant * * * is prejudiced by a joinder of offenses * * * for trial together, the court may order an election or separate trials of counts * * * or provide whatever other relief justice requires."

"Therefore, if because of the * * * joinder prejudice developed and was not cured by requiring an election or by other relief, material error afflicted the trial. Prejudice has consistently been held to occur when * * * joinder embarrasses or confounds an accused in making his defense. Pointer v. United States, 1894, 151 U.S. 396, 403 14 S.Ct. 410, 38 L.Ed. 208; Kidwell v. United States, 1912, 38 App.D.C. 566, 570. See, also, McElroy v. United States, 1896, 164 U.S. 76, 78 17 S.Ct. 31, 41 L.Ed. 355." Dunaway v. United States, 92 U.S.App. D.C. 299, 300-01, 205 F.2d 23, 24 (1953). See also Drew v. United States, 118 U.S. App.D.C. ___, 331 F.2d 85.

Prejudice may develop when an accused wishes to testify on one but not the other of two joined offenses which are clearly distinct in time, place and evidence. His decision whether to testify will reflect a balancing of several factors with respect to each count: the evidence against him, the availability of defense evidence other than his testimony, the plausibility and substantiality of his testimony, the possible effects of demeanor, impeachment, and cross-examination.³ But if the two charges are joined for trial, it is not possible for him to weigh these factors separately as to each count.⁴ If he testifies on one count, he runs the risk that any adverse effects will influence the jury's consideration of the other count. Thus he bears the risk on both counts, although he may benefit on only one. Moreover, a defendant's silence on one count would be damaging in the face of his express denial of the other. Thus he may be coerced into testifying on the count upon which he wished to remain silent.⁵ It is not necessary to decide whether this invades his constitutional right to remain silent, since we think it constitutes prejudice within the meaning of Rule 14.

In the present case the appellants did not specify at trial the counts upon which they wished to remain silent and why.

335 F.2d 990

It does appear that, when the trial court asked Cross whether he wished to testify in his own behalf, Cross answered: "Which case, Your Honor?" During the extended colloquy which followed,⁶ Cross repeatedly tried, without his counsel's assistance,⁷ to elaborate upon his objections to the joinder. But the court seems to have precluded this by insisting that the issue of joinder had been determined in the pre-trial denial of severance and by demanding a categorical answer to its original query.⁸ Thereafter the court applied the same ruling to Jackson.⁹

An examination of Cross' testimony on both counts supports his claim in this court that he wished to testify on Count II and remain silent on Count I. His testimony on Count II was that he was a victim and not a cohort of the armed robbers who entered the tourist home behind him. This testimony, which met the Government's case directly, was so convincing that the jury believed it despite the prosecutor's efforts at cross-examination and impeachment. On Count I, however, his denial was plainly evasive and unconvincing. He testified that he had been drinking heavily and did not know his whereabouts at the time of the church robbery. On cross-examination he was open to questioning concerning his generally tawdry way of life and his prior convictions.

Thus it would appear that Cross had ample reason not to testify on Count I and would not have done so if that count had been tried separately. In a separate trial of that count the jury would not have heard his admissions of prior convictions and unsavory activities;

335 F.2d 991

nor would he have been under duress to offer dubious testimony on that count in order to avoid the damaging implication of testifying on only one of the two joined counts.¹⁰ Since the joinder embarrassed and confounded Cross in making his defense, the joinder was prejudicial within the meaning of Rule 14

We do not agree with the Government that under Dunaway v. United States, 92 U.S.App.D.C. 299, 205 F.2d 23 (1953), this prejudice must be deemed cured by the acquittal on Count II. In that case three counts of housebreaking and two counts of larceny had been tried together. The trial court directed acquittals on the larceny counts, and the jury acquitted the defendant of one of the housebreaking counts. On appeal, we questioned whether "the jury acquittal, considered either alone or with the directed acquittals of larceny, disposes of the claim of prejudice due to the consolidation."¹¹ But since it appeared that Dunaway "had a fair choice to take the stand or not uninfluenced to any significant degree by the consolidation,"¹² we affirmed the conviction on the ground that no prejudice could be shown. In the present case we think our discussion of the proceedings below shows that Cross had no such "fair choice" and that the resulting prejudice on Count I was not cured by the acquittal on Count II.

The record does not provide so much substantiation for Jackson's claim in this court that he, too, was confounded in his defense by the joinder of counts. But, like Cross, he had no opportunity below to establish his claim.¹³ We cannot say that it is meritless. And the record does not foreclose the view that Jackson may have been prejudiced because Cross was coerced by the joinder to testify on Count I. If that count had been severed for trial, the jury would not have heard Cross' self-defeating testimony. It might therefore have given greater credence to Jackson's strong alibi defense.¹⁴ Cross' testimony was offered as a result of the trial court's error in refusing his request for severance of the offenses. Thus the prejudice to Jackson must be deemed to have resulted from the same error. "It would be unjust and illogical to separate the two cases and uphold the judgment as to one defendant and reverse it as to the other."¹⁵

335 F.2d 992

We find it unnecessary to discuss the other issues raised on this appeal. The judgments on Count I are vacated and the cases are remanded to the District Court for a new trial on that count.

So ordered.

BASTIAN, Circuit Judge (dissenting).

I would affirm the judgments of the District Court. The evidence as to appellants' guilt under Count 1 of the indictment was overwhelming. The majority require a new trial, however, because they feel that the appellants were confounded in making their defenses by the joinder of the two counts, and thus were prejudiced within the meaning of Rule 14, Federal Rules of Criminal Procedure. I disagree.

Rule 14 provides:

"If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires."

As a general rule, acquittal on one of several counts in an indictment cures any defect of misjoinder under Rule 14, Gornick v. United States, 320 F.2d 325 (10th Cir. 1963), thereby precluding any successful claim of prejudice on appeal. United States v. O'Brien, 319 F.2d 437 (7th Cir. 1963); United States v. Rabin, 316 F.2d 564, 568 (7th Cir. 1963).

Similarly, in Dunaway v. United States, 92 U.S.App.D.C. 299, 205 F.2d 23 (1953), this court rejected a claim of prejudice resulting from consolidation of three indictments in a single trial. The jury there had acquitted the defendant on one charge of housebreaking and convicted him on two others. On appeal, we said 92 U.S.App.D.C. at 302, 205 F.2d at 26:

"Acquittal on one of several consolidated indictments disposes pro tanto of the claim of prejudice. There are cases which indicate it disposes of such claim in toto. Beaux Arts Dresses v. United States, 2 Cir., 1925, 9 F.2d 531;

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