U.S. v. Warfield

• Decision Date: 02 October 1996
• Docket Number: Nos. 95-3325,95-3326,s. 95-3325
• Parties: 45 Fed. R. Evid. Serv. 1005 UNITED STATES of America, Plaintiff-Appellee, v. Antwon A. WARFIELD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Brian M. THOMAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1014

97 F.3d 1014

45 Fed. R. Evid. Serv. 1005

UNITED STATES of America, Plaintiff-Appellee, v. Antwon A. WARFIELD, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Brian M. THOMAS, Defendant-Appellant.

Nos. 95-3325, 95-3326.

United States Court of Appeals,

Eighth Circuit.

Submitted March 13, 1996.

Decided Oct. 2, 1996.

John L. Mullen, argued, Kansas City, MO, for defendant-appellant.

David DeTar Newbert, argued, Kansas City, MO, for plaintiff-appellee.

Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Antwon A. Warfield and Brian M. Thomas appeal from the final judgments of the district court ¹ after they were convicted of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d), conspiracy to commit armed bank robbery in violation of 18 U.S.C. § 371, and Thomas was convicted of aiding and abetting armed bank robbery in violation of 18 U.S.C. §§ 2 and 2113(a) and (d). Both raise various trial-related rulings as a basis for reversal of their convictions. After carefully considering the record, we affirm the judgments of the district court.

I.

On December 8, 1993, the Boatmen's Bank at 8550 Holmes in Kansas City, Missouri, was robbed by several individuals. It was robbed again on December 17, 1993. The two robberies were conducted in the same manner, and in a manner identical to the robberies of several area fast-food restaurants earlier that year. Prior to arriving at the business to be robbed, the robbers would remove the license plates from their vehicle. Two robbers would enter the business wearing nylon stocking masks and work gloves. One robber carried a firearm and stood by the door, covering customers and employees. The other robber would vault over the counter, open the cash drawer, and remove the entire cash tray and its contents. With the cash tray in hand, the robbers would flee the premises to the getaway car, which a third robber had strategically positioned for a quick getaway. The robberies were always executed extremely rapidly, with the time the robbers spent inside the establishment lasting around a minute.

Warfield was charged in the superseding indictment with one count of armed bank robbery and one count of conspiracy to commit armed bank robbery in connection with the December 17, 1993, robbery of Boatmen's Bank. Thomas was charged with armed bank robbery in connection with the December 8, 1993, robbery of Boatmen's Bank, and aiding and abetting armed bank robbery and conspiracy to commit armed bank robbery stemming from the December 17 robbery. The case proceeded to trial, and a jury found the Appellants guilty on each count with which they were charged. After being sentenced by the district court, Warfield and Thomas appeal.

II.

WARFIELD'S APPEAL

A.

Warfield argues that the district court, adopting the report and recommendation of a United States Magistrate Judge, ² abused its discretion by overruling his motion to sever his trial from co-defendant Thomas's trial. "[W]e review the district court's denial of a motion for severance for an abuse of discretion which resulted in 'severe or compelling prejudice.' " United States v. Fregoso, 60 F.3d 1314, 1328 (8th Cir.1995) (quoting United States v. Rimell, 21 F.3d 281, 289 (8th Cir.), cert. denied, 513 U.S. 976, 115 S.Ct. 453, 130 L.Ed.2d 362 (1994)). "To show such prejudice, a defendant must establish something more than the mere fact that his chance for acquittal would have been better had he been tried separately. He must affirmatively demonstrate that the joint trial prejudiced his right to a fair trial." United States v. Jackson, 64 F.3d 1213, 1217 (8th Cir.1995) (internal quotation omitted), cert. denied, --- U.S. ----, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996). Finally, we observe that "[r]arely, if ever, will it be improper for co-conspirators to be tried together." Id. (internal quotations and citation omitted) (alteration in original).

"When a defendant moves for a severance, a district court must first determine whether joinder is proper under Federal Rule of Criminal Procedure 8. If joinder is proper, the court still has discretion to order a severance under Federal Rule of Criminal Procedure 14." United States v. Darden, 70 F.3d 1507, 1526 (8th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1449, 134 L.Ed.2d 569 (1996). Rule 8 and Rule 14 are to be given a liberal construction in favor of joining the trial of several defendants. Id.

Rule 8 permits the joinder of defendants "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. For proper joinder under this provision, "[i]t is not necessary that every defendant have participated in or be charged with each offense." Darden, 70 F.3d at 1527 (internal quotations omitted). Under Rule 8 then, the joinder of Warfield and Thomas was clearly appropriate because the superseding indictment alleged that they conspired to commit, and Warfield subsequently engaged in while Thomas aided and abetted, armed robbery of Boatmen's Bank on December 17, 1993.

If joinder is proper under Rule 8, the defendant seeking severance has the heavy burden of demonstrating that a joint trial will impermissibly infringe his right to a fair trial. Id. This burden may be satisfied by showing that the jury was unable to compartmentalize the evidence against each defendant or that the defendants' defenses are irreconcilable. Jackson, 64 F.3d at 1217.

Warfield claims that he satisfied this onerous burden because the jury was unable to compartmentalize the evidence with respect to each defendant. Specifically, Warfield observes that a plethora of evidence was presented concerning Thomas's past criminal involvement, specifically Thomas's arrest on June 16, 1993, his participation in robbing several restaurants, and his involvement in the December 8, 1993, robbery of Boatmen's Bank. Warfield claims that with these numerous instances of bad conduct presented against Thomas, the "spillover effect" deprived him of his constitutional right to a fair trial. We disagree.

This case involved co-conspirators who were charged in the indictment for their respective roles in the December 17 robbery. A good deal of evidence presented at trial concerned the plan, and the execution of the plan, to rob the Boatmen's Bank on December 17, and the Appellants' involvement therein. Further, the district court instructed the jury that it was to view the evidence presented against one defendant as applicable to only that defendant and we assume, as we must, that the jury followed this instruction. Fregoso, 60 F.3d at 1328. Finally, Warfield presents nothing more than an unsupported assertion that he was prejudiced by the failure to sever. However, "a claim of potential prejudice is not enough to prevail on this issue." Jackson, 64 F.3d at 1217.

Warfield thus has failed to carry his heavy burden to show that his joint trial with co-conspirator Thomas prejudiced his right to a fair trial. Accordingly, we reject Warfield's claim that the district court erred by denying his motion for severance.

B.

Warfield next claims that the district court erred by failing to issue a Writ of Habeas Corpus Ad Testificandum, compelling one Terrance Davis to appear at trial to testify. At the time Warfield made his request, Davis was incarcerated in the United States Penitentiary at Leavenworth, Kansas, having been tried and convicted for his participation in the same December 17, 1993, robbery of Boatmen's Bank for which Warfield was being tried. Davis's direct appeal was pending at that time before this court. See United States v. Davis, 65 F.3d 172, 1995 WL 507320 (8th Cir.1995) (unpublished opinion affirming conviction). Warfield sought to question Davis about the December 17 robbery.

The district court held a hearing on the issue with Davis's attorney present. Davis's counsel stated to the court in no uncertain terms that if the court required Davis to appear and take the stand, Davis would unequivocally exercise his Fifth Amendment privilege against self-incrimination. In light of counsel's representation, the district court overruled Warfield's request that Davis be compelled to appear and take the stand.

Warfield takes issue with the district court's ruling, claiming that the court simply speculated that Davis would exercise his Fifth Amendment privilege against self-incrimination. We have held that a representation to the district court by a witness's counsel that the witness would exercise his Fifth Amendment rights if called to testify is sufficient for the district court to refuse to compel that witness to appear. See United States v. Swanson, 9 F.3d 1354, 1359 (8th Cir.1993) (district court's exclusion of testimony by witness not improper when witness's attorney informed court that witness would assert Fifth Amendment right of self-incrimination if called). Thus, in this case, Davis's counsel's representation that Davis would exercise his Fifth Amendment privilege against self-incrimination, coupled with the fact that Davis's appeal was still pending before this court, was a sufficient basis for the district court to conclude that that is precisely what Davis would have done.

Warfield claims that under this court's holding in United States v. Doddington, 822 F.2d 818 (8th Cir.1987), the district court should have compelled Davis's presence at trial and determined at that time whether Davis would invoke the privilege against self-incrimination. Doddington, however, actually supports the district court's refusal to compel Davis's presence. There we held that "a defendant does not have the right to call a witness to the stand simply to force invocation of the right against self-incrimination in the presence of the jury." 822 F.2d at 822. See also United States v. Robaina, 39 F.3d 858, 862 (8th Cir.1994) (A "defendant's right to compulsory process does...