U.S. v. Bostic
| Decision Date | 08 August 1983 |
| Docket Number | Nos. 82-2377,82-2442,s. 82-2377 |
| Citation | 713 F.2d 401 |
| Parties | 13 Fed. R. Evid. Serv. 1916 UNITED STATES of America, Appellee, v. Leroy BOSTIC, Appellant. UNITED STATES of America, Appellee, v. Albert Lewis JOHNSON, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Jack S. Nordby, Minneapolis, Minn., for Bostic.
Bruce H. Hanley, Minneapolis, Minn., for Johnson.
James M. Rosenbaum, U.S. Atty., Thomas B. Heffelfinger, Asst. U.S. Atty., D. Minn., Minneapolis, Minn., Kris Rasmussen, Legal Intern, for appellee.
Before ROSS, ARNOLD, and JOHN R. GIBSON, Circuit Judges.
Leroy Bostic and Albert Lewis Johnson were convicted by a jury of robbing a branch of the Twin City Federal Savings and Loan Association in Minneapolis, Minnesota, in violation of 18 U.S.C. § 2113(a) and (d). The District Court 1 sentenced Bostic to 20 years' imprisonment, and Johnson to 15. They appeal, claiming that their trial should have been severed from that of a co-defendant, Garry Monte Green, Jr. Green took the stand and testified that Bostic and Johnson forced him at gunpoint to help them carry out the robbery. We are inclined to agree that appellants' motions for severance should have been granted, but we nevertheless affirm their convictions. Our study of the transcript has persuaded us beyond a reasonable doubt that guilty verdicts would have been returned even if Bostic and Johnson had been given a severance from Green.
In order to obtain a new trial, Bostic and Johnson must show that they were prejudiced by the joinder with Green. It is entirely proper to charge two or more defendants together "if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Fed.R.Crim.P. 8(b). This case meets that standard, and no one contends otherwise, so there is no issue of misjoinder in violation of Rule 8. The claim is, instead, that the joinder was prejudicial, and that the District Court should have granted a severance under Fed.R.Crim.P. 14.
In United States v. Jackson, 549 F.2d 517, 523 (8th Cir.), cert. denied, 430 U.S. 985, 97 S.Ct. 1682, 52 L.Ed.2d 379 (1977), we set out the applicable standard as follows:
It is the general rule that persons charged in a conspiracy 2 should be tried together, particularly where proof of the charges against the defendants is based upon the same evidence and acts. Severance will be allowed upon a showing of real prejudice to an individual defendant. However, the motion to sever is addressed to the discretion of the trial court, and a denial of severance is not grounds for reversal unless clear prejudice and an abuse of discretion are shown.
(Citations omitted.) Prejudice must be "real" and "clear." Compare 1 Wright, Federal Practice and Procedure § 223, at 788 (2d ed. 1982) (). An abuse of discretion in refusing severance is not alone enough to justify reversal and a new trial. There must also be prejudice. That is, there must be some appreciable chance that defendants would not have been convicted had the separate trial they wanted been granted. There must be some appreciable chance that trying Bostic and Johnson again, but this time without Green as a co-defendant, would lead to some result other than another verdict of guilty.
We first discuss briefly the merits of the severance issue. The government asks us to adopt the Seventh Circuit rule that mutual antagonism between or among defendants requires a severance only if "the acceptance of one party's defense will preclude the acquittal of the other." United States v. Ziperstein, 601 F.2d 281, 285 (7th Cir.1979), cert. denied, 444 U.S. 1031, 100 S.Ct. 701, 62 L.Ed.2d 667 (1980). If we were to agree with this statement of the law, it would still be difficult to approve the denial of a severance here. The demanding Ziperstein standard may well have been met by the unusual facts of this case. Green testified that Bostic and Johnson coerced him into helping them rob the bank. If the defense of coercion is accepted, Bostic and Johnson cannot be acquitted. The innocence of Green carries with it, as a logical matter, the guilt of the two co-defendants whom Green now blames. The government suggests that the jury might have believed Green's testimony that he was coerced, but disbelieved his identification of Bostic and Johnson as the ones who did the coercing. That is a verbally tenable possibility, we suppose, but it seems so unlikely as to be negligible in the real world. The government also cites United States v. Boyd, 610 F.2d 521 (8th Cir.1979), cert. denied, 444 U.S. 1089, 100 S.Ct. 1052, 62 L.Ed.2d 777 (1980), where we held that severance was properly denied even though one defendant claimed that another had "brainwashed" her. Boyd may be of some help to the government here, but we doubt that the antagonism among defendants was quite so sharp there as it was at this trial.
We are inclined to think, therefore, that the inconsistency of defenses here--which became more and more clear as the trial wore on--should have produced a severance for Bostic and Johnson. It does not follow, though, that their convictions must be reversed. As we have explained, the question of prejudice remains to be considered. "Any error ... which does not affect substantial rights shall be disregarded." Fed.R.Crim.P. 52(a). See United States v. Hasting, --- U.S. ----, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983) ().
We have studied the entire record and are morally certain that the denial of severance did not affect the jury verdict against appellants. It is not that Green's testimony was unimpressive. At least one juror seems to have believed him, because the jury could not agree on a verdict as to Green. (He later pleaded guilty and was sentenced.) The dispositive point for us is the overwhelming strength of the government's evidence, wholly apart from Green's testimony.
This court still adheres to the practical wisdom offered by a former Chief Judge of the court, Judge Harvey Johnsen, in Homan v. United States, 279 F.2d 767, 771 (8th Cir.), cert. denied, 364 U.S. 866, 81 S.Ct. 110, 5 L.Ed.2d 88 (1960). He observed:
Errors of the trial court which may be prejudicial in a close criminal case, in the sense of being capable in such a situation of possibly affecting the result, can well be without any such rational possibility in a strong case, and thus not entitle the defendant to a reversal of his conviction. The reviewing court must, of course, be able to say with fair assurance that the errors complained of could not, with natural operation in the total setting and proceedings had, be regarded as having possessed any influencing effect.
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