U.S. v. Becker, s. 77-1653

• Decision Date: 31 October 1978
• Docket Number: Nos. 77-1653,s. 77-1653
• Citation: 585 F.2d 703
• Parties: UNITED STATES of America, Appellee, v. William J. BECKER, Appellant. UNITED STATES of America, Appellee, v. Albert J. BRUNO, Appellant. UNITED STATES of America, Appellee, v. James E. ELSKOE, Appellant. to 77-1655.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 703

585 F.2d 703

UNITED STATES of America, Appellee, v. William J. BECKER, Appellant.

UNITED STATES of America, Appellee, v. Albert J. BRUNO, Appellant.

UNITED STATES of America, Appellee, v. James E. ELSKOE, Appellant.

Nos. 77-1653 to 77-1655.

United States Court of Appeals, Fourth Circuit.

Argued July 18, 1978.

Decided Oct. 31, 1978.

Leslie L. Gladstone, Baltimore, Md., for appellant in 77-1653.

Andrew Jay Graham, Baltimore, Md., for appellant in 77-1655.

Michael E. Marr, Susan S. Myerberg, Baltimore, Md., on brief, for appellant in 77-1654.

Catherine Blake, Asst. U. S. Atty., Baltimore, Md. (Jervis S. Finney, U. S. Atty., and Thomas L. Crowe, Asst. U. S. Atty., Baltimore, Md., on brief), for appellee.

Before BOREMAN, Senior Circuit Judge, and WINTER and HALL, Circuit Judges.

BOREMAN, Senior Circuit Judge:

William Becker, Albert Bruno, and James Elskoe were indicted jointly on a charge of conspiring to effect Becker's escape from federal custody, 18 U.S.C. §§ 371, 751(a). The defendants were tried together and the jury failed to agree upon a verdict whereupon a mistrial was declared. Seventy-nine days later the case came on for trial before a second jury which returned a guilty verdict as to each defendant. Becker and one George Gutridge had been in federal custody in Florida and were transported together to Maryland by U. S. Marshals. Gutridge was being held on a federal probation violation warrant and Becker was brought to Maryland to face counterfeiting and stolen securities charges. At the time of his removal to Maryland Becker was serving a sentence in Florida for violations of the Dyer Act.

Gutridge testified at trial that he was confined with Becker in the Baltimore City Jail when Becker told him about his plans to escape. Briefly stated, the plans were that Elskoe, a Correctional Officer at the jail, was to be paid $10,000 to supply false and forged papers and to arrange for the services of two men to pose as United States Marshals to effectuate Becker's release from jail. Gutridge further testified that Becker told him that after his escape he, Becker, would go to Venezuela and negotiate with Venezuelan terrorists for the release of an American corporate official, William Neilhouse.

Subsequently, Becker introduced Gutridge to Elskoe and, in Gutridge's presence, Elskoe asked Becker for an advance of $1,000. Becker told Elskoe that Bruno, a close associate of Becker's, would furnish the $1,000.00. Gutridge was released on bail and met with Elskoe and Bruno while they plotted the escape. Bruno purchased a boat at Becker's request and rented an automobile similar to the type used by Marshals in transporting prisoners. Elskoe obtained an official U. S. Marshal's remand form which was used officially by Marshals in removing prisoners from jail; he obtained handcuffs, chains, and guns and hired two men, "Mike" and "Jose," to pose as U. S. Marshals.

Gutridge became concerned about his role in the escape conspiracy and contacted an agent of the FBI to warn him of the impending escape attempt. The two men who were to pose as Marshals drove the rented auto to the vicinity of the jail and Elskoe, driving in another automobile with Gutridge and a third man, stopped at the jail and entered the facility for the ostensible purpose of using the restroom. Upon leaving the jail, Elskoe appeared apprehensive because there were two men in the guard-tower and he abandoned the escape attempt. Upon concluding that there probably would be no further attempt to effectuate Becker's escape, the FBI agents arrested Elskoe and Bruno.

On appeal the major issue concerns the court's denial of defendants' various motions for severance. Becker and Elskoe contend that their trial should have been severed from Bruno's trial. In addition, Becker contends that his trial should have been severed from that of Elskoe.

On the second day of the second trial defense counsel, for the first time, stated that Bruno could give exculpatory testimony in regard to Becker and Elskoe. Bruno had allegedly told his attorney that he would testify if his trial were severed from the trial of his codefendants and his testimony would be that he and Elskoe never intended to help Becker escape, that their preparations were nothing more than an elaborate attempt to extort money from Becker under false pretenses.

The judge attempted to determine if Bruno would indeed testify at a separate trial. Bruno's counsel stated that his client would testify in favor of Elskoe and Becker "(i)f he were tried first. . . . " (Tr. 597) The judge indicated that if the cases were severed, he would proceed with the trial of Becker and Elskoe first. As a condition precedent to severance, the judge required that Bruno state under oath, out of the presence of the jury, the substance of his testimony. Bruno refused to testify under oath to the matters proffered before the court and the judge thereafter denied the motion for severance.

Appellants argue that the trial court erred in (1) declaring that if the cases were severed, Becker and Elskoe would be tried first and (2) requiring that Bruno proffer his testimony under oath prior to severance. They contend that the court's actions confronted Bruno with a substantial "Fifth Amendment problem" and, in effect, kept him from testifying in favor of his codefendants through fear of self-incrimination.

The grant or denial of a motion for severance lies within the sound discretion of the trial court and its action on such motion will be overturned only when there has been a clear abuse of such discretion. United States v. Jamar, 561 F.2d 1103, 1106 (4 Cir. 1977); United States v. Truslow, 530 F.2d 257, 261 (4 Cir. 1975). The trial court must weigh the inconvenience and expense to the government and witnesses of separate trials against the prejudice to the defendants inherent in a joint trial, and its determination will not be disturbed unless the denial of a severance deprives the defendants of a fair trial and results in a miscarriage of justice. United States v. Walsh, 544 F.2d 156, 160 (4 Cir. 1976), Cert. denied, 429 U.S. 1093, 97 S.Ct. 1105, 51 L.Ed.2d 539 (1977); United States v. Shuford, 454 F.2d 772, 775-76 (4 Cir. 1971).

There is no abuse of judicial discretion in denying a codefendant's motion for severance when based upon a codefendant's Conditional offer to exculpate his fellow codefendants if he is tried first. United States v. Gay,567 F.2d 916 (9 Cir. 1978); United States v. Frazier, 394 F.2d 258 (4 Cir.), Cert. denied, 393 U.S. 984, 89 S.Ct. 457, 21 L.Ed.2d 445 (1968). To rule otherwise would allow codefendants to employ a motion for severance to obtain benefits that they would not have but for their joint indictment. Gay, supra at 920. In Frazier, this court rejected an argument similar to the one presented in the instant case regarding a codefendant witness' demand that he be tried first as a condition precedent to his testimony. We recognized that to accede to the codefendant's demand would create a situation where, following his own trial, the witness would be more inclined to "throw a bone" to his codefendants by testifying favorably to them because his own case had been disposed of and he had little to lose by testifying. Frazier, supra at 261. Thus, in light of Bruno's conditional offer to testify, there was nothing improper in the court's determination that, if the cases were severed, Becker and Elskoe would be tried first.

Ordinarily a codefendant need not proffer his testimony under oath to establish a basis for granting a motion for severance. United States v. Morrow, 537 F.2d 120, 135 n. 9 (5 Cir. 1976); United States v. Martinez, 486 F.2d 15, 22 (5 Cir. 1973); Byrd v. Wainwright, 428 F.2d 1017 (5 Cir. 1970). Nevertheless, the judge's requirement that Bruno proffer his testimony under oath prior to severance was entirely justified under the circumstances of the instant case. A trial judge must determine that there is a "reasonable probability" that exculpatory testimony will be forthcoming and that the codefendant will waive his Fifth Amendment right at a separate trial before a severance is granted. United States v. Shuford, supra at 778. See United States v. Finkelstein, 526 F.2d 517, 523-24 (2 Cir. 1975). Because the trial judge here indicated that Becker and Elskoe would be tried first he was justified in determining whether Bruno would adhere to his conditional offer to testify or whether he would invoke his Fifth Amendment privilege against self-incrimination. It is apparent that if...