Free Order on Motion for Leave to File - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Criminal Case No. 04-cr-00103-REB UNITED STATES OF AMERICA, Plaintiff, v. 1. NORMAN SCHMIDT, Defendant. _____________________________________________________________________ ORDER DENYING DEFENDANT SCHMIDT'S MOTION FOR SEVERANCE _____________________________________________________________________ Blackburn, J. The matters before me are 1) defendant, Norman Schmidt's, Motion For Leave To File Motion For Severance [#1025] filed February 28, 2007; and 2) defendant, Norman Schmidt's, Motion For Severance [#1026] presented for filing February 28, 2007. I grant the motion for leave to file, and I deny the motion for severance on both procedural and substantive grounds.1 Procedurally, the motion for severance is inexplicably and inexcusably out of time.2 My initial Scheduling Order required that motions to sever be filed by November 30, 2004. See Scheduling Order [#96] at2, ¶ 6 . The instant motion for severance could and should have been filed by the November 30, 2004, deadline. It was not. Subsequent to the return of the Second Superseding Indictment, I issued my

The issues raised by and inherent to the m otion are briefed adequately; thereby, obviating the necessity for evidentiary hearing or oral argum ent. Defendant has had m ore than enough tim e to present all that he deem ed necessary to support his belated request.
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This is so notwithstanding the fact that I have granted the antecedent m otion for leave to file.

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Supplemental Scheduling Order, which required that motions to sever based on the new indictment be filed by February 6, 2006. See Supp. Scheduling Order [#584] at 2, ¶ 4. The instant motion for severance could and should have been filed by the February 6, 2006, deadline. It was not. Instead, the motion incredibly is presented for filing a little more than one month before trial. The reason suggested for the extremely belated motion is that it was only recently that defendant's counsel learned that the other codefendants intend to finger point at defendant. See Motion at 1, ¶ 2. However, at least as early as April, 2004, defendant was on notice from discovery that such a defense was likely. The suggestion that such a defensive strategy is of recent vintage or advent insults the intelligence of the court and borders on the dissembling. Procedurally, the motion should be denied as untimely. Substantively, the motion is as feckless as it is untimely. First, defendant has not made even a prima facie factual or legal showing of mutually antagonistic defenses. Second, defendant's reliance on the majority's dictum in DeLuna v. United States, 308 F.2d 140 (5th Cir. 1962) is misplaced; in this circuit there is no duty ­ ethical, legal, or otherwise ­ for counsel for a codefendant to comment on defendant's silence at trial. I note initially and relevantly that defendants are joined properly. Defendants are joined properly in the same indictment "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). In this case there is no question that defendant Schmidt is joined properly with the other codefendants because all are alleged to have participated in the same series of acts or transactions constituting the

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conspiracy and the substantive offenses charged in the Second Superseding Indictment. However, even if joined properly, Rule 14 of the Federal Rules of Criminal Procedure allows a court, based upon a showing of irreparable prejudice, to "order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires." Fed. R. Crim. P. 14. Defendants who are joined properly under Rule 8(b) ordinarily should be tried together. See United States v. Yazzie, 188F.3d 1178, 1194 (10th Cir. 1999); accord United States v. Warner, 971 F.2d 1189, 1196 (6th Cir. 1992) (collecting cases from various circuits). This preference for joint trials is particularly strong when codefendants are indicted in the same conspiracy. United States v. Iiland, 254 F.3d 1264, 1269-70 (10th Cir. 2001). "There is a preference in the federal system for joint trials of defendants who are indicted together. Joint trials `play a vital role in the criminal justice system.'" Zafiro v. United States, 506 U.S. 534, 537 (1993), quoting Richardson v. Marsh, 481 U.S. 200, 209 (1987). Joint trials promote economy and efficiency and serve the interests of justice by avoiding multiple trials and inconsistent verdicts. Zafiro, 506 U.S. at 540. This puissant presumption in favor of joint trials is designed to conserve judicial resources, alleviate the burdens on citizens serving as jurors, and avoid the necessity of having witnesses reiterate testimony in a series of trials. United States v. Kennedy, 819 F.Supp. 1510, 1516 (D.Colo.,1993) (internal quotations and citations omitted). Joint trials also promote efficiency and "serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." Richardson, 481 U.S. at 210.

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A properly joined defendant carries the burden of establishing unlawful prejudice sufficient to support a motion for severance under Rule 14 of the Federal Rules of Criminal Procedure. United States v. Price, 265 F.3d 1097, 1105 (10th Cir.2001), cert. denied, 535 U.S.1099 (2002). A defendant moving for severance must prove not only prejudice, but such strong prejudice that severance is the only remedy. Zafiro, 506 U.S. at 538-539. Even on a showing of prejudice, a trial court should try to fashion another form of relief. Id. A measure less drastic than a separate trial, such as propitious limiting and cautionary instructions, often will suffice to ameliorate any potential risk of prejudice. Id. A severance should be granted only if there is a serious risk that a joint trial would compromise a specific trial right of a defendant or prevent the jury from making a reliable judgment about guilt or innocence. United States v. Morales, 108 F.3d 1213, 1219 (10th Cir. 1997), citing Zafiro, 506 U.S. at 539. A defendant must show "more than a better chance of acquittal or a hypothesis of prejudice, he must, in fact, show real prejudice." United States v. Youngpeter, 986 F.2d 349, 353 (10th Cir. 1993) (citation omitted). As the Tenth circuit noted recently and relevantly in the context of a trial court's evaluation of a motion for severance based on mutually exclusive defenses: When considering a motion for severance, a trial court engages in a three step inquiry. First, it must determine whether the defenses presented are "so antagonistic that they are mutually exclusive." United States v. Peveto, 881 F.2d 844, 857 (10th Cir.1989). Second, because "[m]utually antagonistic defenses are not prejudicial per se," a defendant must further show "a serious risk that a joint trial would compromise a specific trial right ... or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Third, if the first two factors are met, the trial court exercises its discretion and "weigh[s] the prejudice to a particular defendant 4

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caused by joinder against the obviously important considerations of economy and expedition in judicial administration." Peveto, 881 F.2d at 857. Where the trial court ultimately denies severance, its decision will be reversed only where the defendant has demonstrated an abuse of discretion. United States v. Hayes, 861 F.2d 1225, 1231 (10th Cir.1988). United States v. Pursley, 474 F.3d 757, 765 (10th Cir. 2007). Where a severance motion is based on a claim of antagonistic defenses, a defendant's mere claim that his defense will conflict with the defense of a codefendant is insufficient to support severance. United States v. McClure, 734 F.2d 484, 488 (10th Cir. 1984). Nor is "one defendant's attempt to cast blame on the other" itself sufficient to support severance. Id. Instead, defenses must be "irreconcilable and mutually exclusive" to support severance. Id. Defenses meet this standard if "the acceptance of one party's defense would tend to preclude the acquittal of the other. Conversely, such a showing would seemingly require that the guilt of one defendant tends to establish the innocence of the other." Id. at 488 n.1. Defenses are mutually antagonistic if "the conflict between codefendants' defenses [is] such that the jury, in order to believe the core of one defense, must necessarily disbelieve the core of the other." United States v. Linn, 31 F.3d 987, 992 (10th Cir.1994). In other words, defendants must show that "the acceptance of one party's defense would tend to preclude the acquittal of the other, or that the guilt of one defendant tends to establish the innocence of the other." Peveto, 881 F.2d at 857 (holding mutually exclusive defenses where one defendant claimed to be preparing to be an informant and invited the other defendant, a purported drug dealer, to his house to gather information, while the other defendant claimed to be innocently at the house and held against his will by

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the first defendant). Accord Pursley, 474 F.3d at 765 -766. Defendant's lack of factual circumstantiation and logical explication precludes the conclusion that defendant is confronted with truly antagonistic and mutually exclusive defenses. Even assuming, arguendo, the existence of the factual predicate necessary to establish mutual exclusivity, defendant also has failed to establish "a serious risk that a joint trial would compromise a specific trial right . . . or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro, 506 U.S. at 539. Finally, the majority's dictum in DeLuna v. United States, 308 F.2d 140 (5th Cir. 1962) is not good law in the Tenth Circuit. However, a primary basis for defendant Schmidt's motion is his reliance on the dictum in DeLuna, which suggests in the context of this case that if codefendants Smith or Weed testify, their attorneys will have a duty to comment on defendant Schmidt's expected failure to testify both directly as counsel and through the testimony of their clients. Defendant claims that in those circumstances I would be required to grant a mistrial once other defense attorneys, abiding by the duty suggested in DeLuna, comment on defendant's silence. See Motion at 2, ¶ Defendant represents that "[w]hile the Tenth Circuit has not dealt with a case on point with the facts in the DeLuna case, it has recognized the principle and the rationale behind the case." See Id., ¶ 7. This statement is inaccurate. In McClure, the Tenth Circuit unequivocally rejected DeLuna's dictum: We reject the dictum of the DeLuna majority and today hold that under no circumstances can it be said that a defendant's attorney is obligated to comment upon a codefendant's failure to testify. As the Supreme Court has noted, the assertion of the fifth amendment privilege "is properly no part of the evidence submitted to the jury, and no inferences whatever can be legitimately drawn by them from the legal assertion by the witness of his 6

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constitutional right." Johnson v. United States, 318 U.S. 189, 196, 63 S.Ct. 549, 553, 87 L.Ed. 704 (1943). If in fact the invocation of the fifth amendment privilege is of such dimension that it permits no inference of guilt or innocence, it is without probative value on the issue of a defendant's guilt or innocence. United States v. Marquez, 319 F.Supp. 1016, 1022 (D.C.N.Y.1970). See also United States v. Atnip, 374 F.2d 720, 723 (7th Cir.1967). Hence, we reject the notion that under certain circumstances a defense attorney may be "duty bound" to comment upon nonprobative evidence. 734 F.2d at 491; see also United States v. Espinosa, 771 F.2d 1382, 1409 n.35 (10th Cir. 1985) (noting McClure's rejection of DeLuna). As the Tenth Circuit explained sensibly, a defense attorney can have no duty to comment on an invocation of silence because such an invocation has no probative value. McClure, 734 F.2d at 491.3 Thus, the duty that defendant claims will cause other defense counsel to comment prejudicially on defendant's silence does not exist. In summary, defendant fails to circumstantiate mutually exclusive defenses and misapprehends the majority's dictum in DeLuna, which has been rejected expressly and decisively by the Tenth Circuit. Thus, substantively the motion should be denied as vacuous. THEREFORE, IT IS ORDERED as follows: 1. That defendant, Norman Schmidt's, Motion For Leave To File Motion For Severance [#1025] filed February 28, 2007, IS GRANTED; 2 That defendant, Norman Schmidt's, Motion For Severance [#1026] presented for filing February 28, 2007, IS DEEMED FILED effective February 28, 2007; and 3. That defendant, Norman Schmidt's, Motion For Severance [#1026] filed
The cases cited by defendant in his m otion at 2, ¶ 7, do not hold otherwise. In fact, United States v. Rantz, 862 F.2d 808, 811(10th Cir. 1988) is wholly inapposite.
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February 28, 2007, IS DENIED on both procedural and substantive grounds. Dated March 28, 2007, at Denver, Colorado. BY THE COURT: s/ Robert E. Blackburn Robert E. Blackburn United States District Judge

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