U.S. v. Odom

• Decision Date: 31 October 1989
• Docket Number: No. 88-5687,88-5687
• Citation: 888 F.2d 1014
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cecil Arnold ODOM, a/k/a Bud Kelly, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1014

888 F.2d 1014

UNITED STATES of America, Plaintiff-Appellee, v. Cecil Arnold ODOM, a/k/a Bud Kelly, Defendant-Appellant.

No. 88-5687.

United States Court of Appeals, Fourth Circuit.

Argued May 12, 1989.

Decided Oct. 31, 1989.

Luther Charles West, Baltimore, Md., for defendant-appellant.

Barbara Slaymaker Sale, Asst. U.S. Atty., Baltimore, Md. (Breckinridge L. Willcox, U.S. Atty., Washington, D.C., on brief), for plaintiff-appellee.

Before MURNAGHAN and CHAPMAN, Circuit Judges, and SMALKIN, United States District Judge for the District of Maryland, sitting by designation.

CHAPMAN, Circuit Judge:

This appeal presents an unusual former jeopardy question. Appellant and a codefendant, Victor Carroll Fincham, were tried for conspiracy to murder a government witness and aiding and abetting in the murder of a government witness. After two days of trial, it became obvious that appellant's attorney had adopted a plan of defense which included doing all in his power to attack codefendant Fincham and to persuade the jury by reference to past wrongful acts that Fincham was the "kingpin" in the killing and that appellant was merely "an underling." During these two days of trial, Fincham's attorney made several motions for a severance claiming that Fincham was being unduly prejudiced by the manner in which appellant's attorney was conducting appellant's defense. On the third day of trial, Judge Motz granted a severance, over appellant's objection. The judge elected to proceed with the trial against Fincham, who was convicted. The trial judge found that because he had granted a severance and not a mistrial, there was no requirement that there be a "manifest necessity" to discontinue the trial as required by Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). The trial judge further found "even if manifest necessity is the proper standard in such a case, there was manifest necessity here." We find that on the present facts the trial judge did not abuse his discretion in granting a severance. The trial judge had discretion as to which defendant to sever from the trial, and the judge did not abuse his discretion in severing the appellant rather than the codefendant Fincham. We find no violation of appellant's protection against double jeopardy in requiring him to now stand trial.

I.

For a proper understanding of this appeal, it is necessary to review the prosecutions that have resulted as a consequence of the murder of a federal witness, John Vitkauskas, who was killed June 14, 1987. Vitkauskas was to testify against Dale Joseph Benjamin, Sr. and his son, Dale Joseph Benjamin, Jr. in their trial for the theft of an armored car. An indictment was returned on February 25, 1988 charging Dale Joseph Benjamin, Sr., Victor Carroll Fincham, and Cleveland Everett Miller with conspiracy to murder, tampering with a witness, retaliating against an informant, using a firearm to tamper with a witness, and using a firearm to retaliate against an informant. The present appellant, Cecil Arnold Odom, also known as Bud Kelly, was not indicted in the first action.

Trial on the first indictment began in May 1988. The prosecution contended that Benjamin and Fincham hired Miller to kill Vitkauskas to prevent him from testifying against Benjamin. During the trial, Benjamin elected to testify in his defense and Fincham then moved for a severance claiming that Benjamin's defense was antagonistic and prejudicial to his own defense. Judge Young conducted an evidentiary hearing on the motion to sever and found that Benjamin's defense "is completely antagonistic to and irreconcilable with Fincham's defense. If the jury believes Benjamin's story, it must convict Fincham, similarly, if the jury believes Fincham's story, to which Benjamin refers in his defense, it must convict Benjamin." The trial judge further found that Benjamin's defense focused on Fincham's drug involvement and claimed that Fincham had Vitkauskas killed to prevent him from telling police about Fincham's drug dealings. The judge found that Benjamin was to testify that, as a result of a phone call he made to Fincham to advise him that Vitkauskas knew of Fincham's cocaine distribution ring, Fincham had Vitkauskas killed and set Benjamin up as "the fall guy." The court found that a severance of Fincham allowed Benjamin to present his complete defense without unfairly prejudicing Fincham's case.

The jury verdict in the first trial acquitted Benjamin and convicted Miller, who then elected to cooperate with the government. Acting upon information supplied by Miller, the grand jury returned a superseding indictment charging Fincham and appellant Odom with conspiracy to murder. Miller's statement was that Odom was fully involved in the planning of the murder and that Odom had ridden with Miller and Vitkauskas when Vitkauskas was taken on his last ride. Miller also stated he was paid $500 of Odom's money and also had a cocaine debt forgiven as payment for killing Vitkauskas.

Following the superseding indictment, Fincham moved for a severance in anticipation of unspecified antagonistic defenses. Judge Motz held a hearing and denied the severance motion, but stated it would be subject to reconsideration as the trial developed. On the opening day of trial the district judge attempted to establish certain ground rules to govern the attorneys during opening statements and examination and cross examination of witnesses. In so doing he was attempting to prevent antagonistic and prejudicial information, such as prior firearm and narcotics dealings, from being brought into evidence by one defendant against the other. Counsel for Odom objected to these ground rules because he wished to present more evidence of Fincham's wrongdoings, and in his opening statement to the jury and in questioning the witnesses he did everything possible to prejudice Fincham in the eyes of the jury. The attorney was admonished on several occasions by the trial judge, but without success. Appellant's attorney refused to follow the ground rules established by the court and proceeded with his attack upon the codefendant Fincham. During the first two days of trial Fincham made unsuccessful motions for a severance, but on the morning of the third day of trial the court found that a severance was necessary to protect Fincham. This presented the question of which defendant should be severed. Fincham asked to be severed, but Odom asked to be retained and that the trial proceed against him. The United States Attorney asked that the case continue against Fincham because Fincham had been severed from the first trial and a second severance of Fincham on a charge as serious as conspiracy to commit murder would give an appearance to the public that Fincham had "beat the system."

The trial judge granted the motion to sever appellant and proceeded with the trial of Fincham.

Shortly thereafter, Odom filed a motion to bar his retrial on double jeopardy grounds and a motion to prevent the government, in the event of a retrial, from using any evidence developed since the time of his previous trial. Both motions were denied and Odom appealed.

II.

Defendants Odom and Fincham were properly charged in the same indictment and scheduled for a joint trial. Federal Rule of Criminal Procedure 8 provides for joinder of defendants when they are alleged to have participated in the same act or series of acts constituting an offense. However, Federal Rule of Criminal Procedure 14 provides:

Relief from Prejudicial Joinder

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. In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.

In United States v. Santoni, 585 F.2d 667, 673 (4th Cir.1978), we found that when defendants were improperly joined under Rule 8 severance was mandatory, but we stated: "On the other hand, if joinder was proper the trial court was permitted to exercise its discretion in determining whether or not to proceed with a joint trial." In United States v. Spitler, 800 F.2d 1267, 1272 (4th Cir.1986), we pointed out that the facts of each case must be examined to determine whether sufficient prejudice exists to require a severance, but we stated: "Application of this standard ... is for the district court in the first instance, and reviewable here only for abuse of discretion." In Spitler we also held that antagonistic defenses do not per se require severance, even when the defendants attempt to cast the blame on each other. However, on the present record we are convinced that the trial judge did not abuse his discretion in granting a severance on the third day of trial.

In his order denying appellant's motion to dismiss the present indictment under the Double Jeopardy Clause the judge outlined the history of the prior trial, the return of the superseding indictment, and the events leading up to the granting of the severance as follows:

Prior to trial, Fincham again moved for a severance based upon anticipated antagonistic defenses. This court denied the motion, subject to it being renewed during the course of the trial if it became apparent that Kelly's ¹ defense was so antagonistic to Fincham's as to deprive the latter of a fair trial. In denying the motion, the court also established certain ground rules, designed to assure a fair trial for both defendants, concerning the extent to which the Government could present evidence as to drug activities in which it alleged Fincham and Kelly were involved and the extent to...