United States v. Grullon

• Decision Date: 09 October 1979
• Docket Number: Crim. No. 79-180.
• Citation: 482 F. Supp. 429
• Parties: UNITED STATES of America v. Cesar Sandino GRULLON, Virgilio Armando Mejia, Ramon Barrientos, and Michael Karasik.
• Court: U.S. District Court — Eastern District of Pennsylvania

482 F. Supp. 429

UNITED STATES of America v. Cesar Sandino GRULLON, Virgilio Armando Mejia, Ramon Barrientos, and Michael Karasik.

Crim. No. 79-180.

United States District Court, E. D. Pennsylvania.

October 9, 1979.

Roberto Rivera-Soto, W. Cecil Jones, Asst. U. S. Attys., Philadelphia, Pa., for plaintiff.

William A. Clay, Miami, Fla., for Ramon Barrientos.

Carl H. Lida, Miami, Fla., for Michael Karasik.

Carmen C. Nasuti, Philadelphia, Pa., for Cesar Sandino Grullon.

Elliott D. Goldberg, Phoenixville, Pa., for Virgilio Armando Mejia.

POLLAK, District Judge.

On October 5, 1979, I entered an order granting Government's motion for severance; specifically, I directed that the jury trial of defendants Barrientos, Grullon, Mejia and Karasik, scheduled to commence on October 9, be divided into two trials—the first of Grullon and Mejia, the second of Barrientos and Karasik. This opinion is intended to explain that ruling.

The indictment in this case contains two counts. The first count charges all four defendants with conspiracy to export firearms from the United States to Nicaragua without the export license required by law. The second count charges defendants Grullon and Mejia with conspiracy to import cocaine from Colombia into the United States.

The Government's motion for severance focused on a single issue: the Government intends to place in evidence, as part of its case-in-chief against defendants Grullon and Mejia, post-arrest statements made by them. References in those post-arrest statements to defendants Barrientos and Karasik cannot, in the Government's view, be effectively redacted. Therefore, so the Government argued, a trial of all four defendants would jeopardize Barrientos' and Karasik's constitutional right of confrontation (Bruton v. United States, 391 U.S. 123, 86 S.Ct. 1620, 20 L.Ed.2d 476 (1968)), since in such a joint trial Barrientos and Karasik could not call their co-defendants to the witness stand in order cross-examine them on their post-arrest statements.

In opposition to the Government's motion for severance, counsel for Barrientos and Karasik (1) expressed doubt that effective redaction is impossible, and (2), in any event, undertook to waive their clients' Bruton rights.

A reading of the post-arrest statements has persuaded me that effective redaction is indeed quite unlikely. Under these circumstances, if the Government's Bruton misgivings had been the only issue upon which the disposition of the motion for severance turned, a ruling on that motion would have had to await October 9. The first matters scheduled to be considered that day, before the trial itself commences, are motions to suppress their post-arrest statements filed by Grullon and Mejia. If both of those motions are granted, the Bruton problem would have disappeared without regard to severance. On the other hand, if either of the post-arrest statements is not suppressed, there would have been posed for consideration the question whether both Barrientos and Karasik would, in person and after extended colloquy, have been capable and desirous of making voluntary and intelligent waivers of their Bruton rights.

But the Bruton problem was not the only one. There was another ground—curiously unmentioned in the Government's motion but included in its supporting memorandum—for the Government's proposal to sever. This other ground is in a sense the obverse of the Bruton problem. Just as, at a joint trial, Barrientos and Karasik would be unable to summon their co-defendants Grullon and Mejia to the witness stand to be cross-examined on their post-arrest statements, so too at a joint trial the Government could not summon Grullon and Mejia to the stand to give evidence as part of the Government's case-in-chief against co-defendants Barrientos and Karasik. Wherefore, the Government evidently wishes to try Grullon and Mejia first, and then, after they have been convicted or acquitted, be able to compel their testimony in the subsequent separate trial of Barrientos and Karasik.

Under Rule 14 of the Federal Rules of Criminal Procedure, the touchstone for the granting of a severance, whether at the instance of the Government or of the defense, is a showing of "prejudice" to the moving party if joinder is maintained. The prejudice to the Government, if severance is not granted in this case, is the unavailability, as against Barrientos and Karasik, of the testimony of Grullon and Mejia. Conversely, the prejudice to Barrientos and Karasik, if severance is granted, is the loss by them of insulation from the potentially damaging testimony of their co-defendants. Is either of these a legally cognizable form of prejudice?

The case closest to the one before us is United States v. Dioguardi, 20 F.R.D. 10 (S.D.N.Y.1956). Although it is unclear from the published opinion that the Government moved for a severance there with a view to calling those tried first as witnesses against those tried subsequently, the very thorough discussion of the case in 8 Moore's Federal Practice ¶ 14.05 (1978) makes this manifest. In Dioguardi, Judge van Pelt Bryan concluded that there was "grave doubt whether these defendants have any standing to object to the Government's desire to proceed by way of two trials rather than by one trial," 20 F.R.D. at 13, and granted the requested severance. See also United States v. Lang, 527 F.2d 1264 (4th Cir. 1975). The rationale underlying this result seems to be that "since the government could have framed separate indictments in the first place, it should be allowed to reach the same result by severance." 8 Moore's Federal Practice 14-113 (1978)....