U.S. v. Gay

• Decision Date: 19 January 1978
• Docket Number: Nos. 76-2692,76-2380,s. 76-2692
• Citation: 567 F.2d 916
• Parties: UNITED STATES of America, Appellee, v. Eddie Roy GAY, Appellant. UNITED STATES of America, Appellee, v. Sammie Jud DIXON, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 916

567 F.2d 916

UNITED STATES of America, Appellee, v. Eddie Roy GAY, Appellant.

UNITED STATES of America, Appellee, v. Sammie Jud DIXON, Appellant.

Nos. 76-2692, 76-2380.

United States Court of Appeals, Ninth Circuit.

Jan. 19, 1978.

Benjamin Wyatt, Jr. (argued), Beverly Hills, Cal., for appellant.

Mark H. Bonner, Asst. U. S. Atty. (argued), Los Angeles, Cal., for appellee.

Appeals from the United States District Court for the Central District of California.

Before BROWNING and ELY, Circuit Judges, and EAST, ^* District Judge.

ELY, Circuit Judge:

Appellants Dixon and Gay, together with co-defendant Lonzo L. Harris, not a party to these appeals, were charged in a three-count indictment with conspiring to violate and violating laws regulating Schedule I substances. 21 U.S.C. §§ 846, 841(a)(1), and 18 U.S.C. § 2. Count I charged all three defendants with conspiracy to possess heroin with intent to distribute it. Count II charged Dixon and Harris with possession of heroin with intent to distribute the substance. Count III charged Dixon and Harris with distribution of heroin and charged Gay with aiding and abetting in the distribution thereof. Following a joint jury trial, all three defendants were convicted as charged. Dixon and Gay now pursue this appeal, contending, inter alia, that their respective motions for a separate trial were improperly denied. We affirm.

I

On the morning of the day set for trial, Dixon, later joined by Gay, moved for a severance. Dixon's motion was founded upon the representation that, if a severance were granted, Harris would exculpate him. The motion was preceded by notice thereof, to which was attached a brief affidavit of Dixon's attorney. ¹ As requested in the affidavit of Dixon's attorney, the court inquired of Harris' counsel whether his client intended to testify. Counsel responded that, if the cases were severed, Harris would indeed testify, but only if he were tried first. An extensive colloquy then ensued between the various counsel and the court in respect to Harris' conditional offer to testify. Pertinent portions of the colloquy are attached hereto as Appendix A. The court advised Harris' counsel that it was willing to impanel two juries, but, in that event, the separate trial of Dixon would precede the trial of Harris. The court reminded Harris' counsel that if, under those circumstances, Harris testified in behalf of Dixon, Harris would thereby forfeit his fifth amendment privilege as to his own later trial. Harris' counsel replied that he, understanding the court's point, would advise Harris not to testify unless, as proposed, the court scheduled his client's trial first. The court rejected the conditional offer to testify and denied the motion to sever. ²

When proceedings resumed in the afternoon session, counsel for Gay also moved for a severance based on anticipated exculpatory testimony from Harris. Discussion followed between the court and counsel for all three co-defendants, the substance of which paralleled the morning colloquy summarized above. The court denied both Gay's motion and Dixon's renewed motion to sever after confirmation from Harris' counsel that Harris would not testify unless tried prior to his co-defendants. See Appendix A infra.

II

In United States v. Rice, 550 F.2d 1364, 1370 (5th Cir. 1977), the Fifth Circuit reviewed a severance problem similar to that before us now. There a motion for a severance, filed by a defendant named Massler, stated:

"In the instant case, Pedro Alvarez has stated, and he will so depose if requested, that if called at a separate trial where he will not need to exercise a Fifth Amendment privilege, he will and can give evidence that will exonerate Jerrold Massler completely. If tried jointly, Mr. Alvarez will, of course, not testify."

Because the motion did not indicate precisely to what Alvarez would testify, and because it was contingent upon Alvarez not being required to testify to anything which might have tended to incriminate him, the denial of the motion was held not to constitute error. The court, however, neither cited precedent nor elaborated on reasons in support of its holding. ³ Nevertheless, we agree with the Rice court that a trial court may, in proper circumstances and in the exercise of its broad discretion in these matters, reject a severance motion based on a conditional offer to give exculpatory testimony. Our judgment follows from certain firmly established legal principles.

Preliminarily, we note that a criminal defendant's Fifth Amendment privilege against self-incrimination is composed of two distinct aspects: first, the privilege not to be summoned to the witness stand, and, second, the privilege not to answer questions to which the answers might be incriminating. For good or ill, the settled law of our Circuit is that in a joint trial a defendant may not call a co-defendant to the witness stand. United States v. Roberts, 503 F.2d 598 (9th Cir. 1974), cert. denied, 419 U.S. 1113, 95 S.Ct. 791, 42 L.Ed.2d 811 (1975); United States v. McKinney,453 F.2d 1221 (9th Cir. 1972); United States v. Beye, 445 F.2d 1037 (9th Cir. 1971), following Bowles v. United States, 142 U.S.App.D.C. 26, 439 F.2d 536 (1970) (en banc), cert. denied, 401 U.S. 995, 91 S.Ct. 1240, 28 L.Ed.2d 533 (1971). The Supreme Court apparently has never specifically issued an opinion on the point. But cf. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). The same rule may apply to any witness who has indicated his intention to invoke the Fifth Amendment, Bowles v. United States, supra, but our court's rule appears to be contra. United States v. Bautista,509 F.2d 675, 678 (9th Cir. 1975), cert. denied, Monsivais v. United States,421 Moreover, co-defendants jointly charged are, prima facie, to be jointly tried. Fed.R.Crim.P. 8. The ordering of separate trials requires unusual circumstances and the power to do so rests within the broad discretion of the District Court as an aspect of its inherent right and duty to manage its own calendar. Fed.R.Crim.P. 14; Opper v. United States, 384 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954) (a severance is not required until a joint trial will be "manifestly prejudicial."); United States v. Kaplan, 554 F.2d 958, 965-67 (9th Cir. 1977); United States v. Donaway, 447 F.2d 940, 943 (9th Cir. 1971) (citing numerous cases). ⁴ The "great mass" of cases refuse to grant a severance despite the anticipated exculpatory testimony of a co-defendant. See 1 C. White, Federal Practice and Procedure: Criminal § 227, n. 13 and cases cited therein. The same author states: "Motions for severance so that a defendant may be able to call a codefendant to the stand are usually denied." Id. § 225.

U.S. 976, 95 S.Ct. 1976, 44 L.Ed.2d 467 (1975); cf. Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). Although these rules arguably may be viewed as raising a serious conflict between the Fifth and Sixth Amendments, the uniform response to this constitutional tension has been that, irrespective of the Sixth Amendment, a defendant has no absolute right to elicit testimony from any witness, co-defendant or not, whom he may desire. Indeed, the witness may be unavailable to him for many reasons, e. g., death, incapacity, presence outside the range of legal process, and commonly, the refusal of the witness to testify pursuant to a claim of privilege, not the least important of which arises from the Fifth Amendment. Royal v. State of Maryland, 529 F.2d 1280 (4th Cir. 1976); United States v. Murphy, 413 F.2d 1129 (6th Cir. 1969), cert. denied, 396 U.S. 896, 90 S.Ct. 195, 24 L.Ed.2d 174 (1969); Myers v. Frye, 401 F.2d 18 (7th Cir. 1968).

The Notes of the Advisory Committee on Rule 14, as originally promulgated, state that a "severance . . . is entirely in the discretion of the (trial) court . . . ." Anno., Fed.R.Crim.P. 14, 18 U.S.C.A. The bases for reversal have been variously described as "Abuse," "clear prejudice," "clear and affirmative showing of abuse," "clear showing of prejudice," and "positive showing of prejudice," see United States v. Olson, 504 F.2d 1222, 1224 (9th Cir. 1974); United States v. Pietras, 501 F.2d 182, 185 (8th Cir. 1974), cert. denied, 419 U.S. 1071, 95 S.Ct. 660, 42 L.Ed.2d 668 (1974); United States v. Jenkins, 496 F.2d 57, 68 (2d Cir. 1974), cert. denied, Hall v. United States, 420 U.S. 925, 95 S.Ct. 1119, 43 L.Ed.2d 394 (1975); United States v. Bryant, 490 F.2d 1372, 1379 (5th Cir. 1974), cert. denied, Impson v. United States, 419 U.S. 832, 95 S.Ct. 57, 42 L.Ed.2d 58 (1975); Kane v. United States, 431 F.2d 172, 176 (8th Cir. 1970). Our own court has written:

"While Rule 14, Fed.R.Crim.P., permits a trial court to grant a severance where a joint trial would be prejudicial to a defendant, the decision to grant the severance is within the discretion of the court and ordinarily not subject to review."

Daut v. United States, 405 F.2d 312, 314 (9th Cir. 1968), cert. denied, 402 U.S. 945, 91 S.Ct. 1624, 29 L.Ed.2d 114 (1971). Further, we have specified:

"The trial judge has great discretion in ruling on Rule 14 motions, and review on appeal is limited to whether '. . . the joint trial (was) so prejudicial . . . as to require the exercise of that discretion in only one way, by ordering a separate trial . . .' Parker v. United States, 404 F.2d 1193, 1194 (9th Cir.), cert. denied, 394 U.S. 1004, 89 S.Ct. 1602, 22 L.Ed.2d 782 (1969)."

United States v. Ragghianti, 527 F.2d 586, 587 (9th Cir. 1975).

III

Mindful of the aforementioned principles, we cannot say in these appeals that the trial court abused its discretion in refusing to accede to Harris' conditional offer If, alternatively, the other defendants had been tried first, again assuming separate indictments, they could, under the rule in this Circuit, have called Harris to the stand and compelled him to invoke the Fifth Amendment as any other third party witness could have been so compelled....