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January 24, 1967

United States of America, Plaintiff-Appellee
Louis Leighton and Harold M. Miller, Defendants-Appellant

Tenney, District Judge.

The opinion of the court was delivered by: TENNEY

TENNEY, District Judge.

Both defendants have made numerous pretrial motions in the above-entitled action. The defendant Leighton seeks (1) a severance of his trial from that of his co-defendant; (2) an order requiring the Government to produce for inspection and copying any statements made by said defendant to officers or agents of the Government, including any recorded statements; (3) production of any mechanical or electrical devices used to record any alleged statements, for inspection by said defendant, together with a statement setting forth the times and places of their use; (4) an order requiring the Government to file a bill of particulars; (5) an order directing the Government to reveal to said defendant any exculpatory information; and (6) a hearing on the issue of whether the defendant Leighton was entrapped by agents of the Government. The defendant Miller also moves this Court (1) to sever his trial from that of the defendant Leighton; (2) to inspect any statements made by him; (3) for an order requiring the Government to file a bill of particulars; (4) for the production of any exculpatory information; and, additionally, (5) to dismiss the indictment on the grounds that it was obtained in violation of his rights under the fifth and sixth amendments.

 The facts of the instant case can be simply stated. An indictment was filed on November 4, 1966, charging the defendants in two counts with violations of the bribery laws of the United States. Count one charges that on or about December 27, 1965, the defendants unlawfully gave $200 to a revenue agent of the Internal Revenue Service, intending to influence said agent's official actions with regard to a field audit examination of the 1962, 1963 and 1964 joint income tax returns of the defendant Leighton and his wife in violation of Title 18 U.S.C. § 201(b) and § 2 of said Title. Count two charges that on or about the above date, the defendants gave the agent $200 otherwise than as provided by law for the proper discharge of his official actions in connection with the Leighton's joint income tax returns for the same years in violation of Title 18 U.S.C. § 201(f) and § 2 of said Title. The effect of the indictment is to charge defendants, in count one, with paying a bribe, and in count two, with paying a gratuity. See United States v. Irwin, 354 F.2d 192, 195-196 (2d Cir. 1965), cert. denied, 383 U.S. 967, 16 L. Ed. 2d 308, 86 S. Ct. 1272 (1966). The defendant Miller was defendant Leighton's accountant and is alleged to have participated in the acts.

 For reasons of convenience and simplification, the defendants' requests which seek common relief will be decided together and then a determination will be made as to such further requests which have been made by one defendant and not joined in by the other.

 The Motions for a Severance.

 Although both defendants seek this relief the grounds set forth by each differ. The defendant Leighton contends that he expects to call the defendant Miller as a witness in his behalf and that it cannot be determined at this time if Miller will assert his constitutional privilege and refuse to testify. It is the defendant Leighton's contention that if this constitutional privilege were asserted, the prejudice to Leighton would be minimized if Miller were called as a witness rather than as a co-defendant. A further ground asserted by defendant Leighton is that certain conversations between his co-defendant and the revenue agent may have been recorded, and if such recordings were in fact made and introduced at the trial, the effect would be highly prejudicial to Leighton.

 The defendant Miller's argument is similar to the second one made by Leighton. It is his claim that if a purported conversation between Leighton and the revenue agent was recorded, its introduction at the trial would be highly prejudicial, and that any court instruction which would allow the jury to consider the statement only as against the declarant would be insufficient to cure the prejudice to the other defendant. United States v. Bozza, 365 F.2d 206 (2d Cir. 1966).

 The Government, in opposition, argues that none of these grounds is sufficient to warrant a severance.

 Rule 8(b) of the Federal Rules of Criminal Procedure provides that

Two or more defendants may be charged in the same indictment or information 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.

 It is clear that in the instant case joinder was initially proper since the indictment alleges that the defendants participated in a transaction constituting an offense. A more difficult question arises in connection with granting a severance once it has been found that joinder of defendants was proper.

 Rule 14 of the Federal Rules of Criminal Procedure (as amended July 1, 1966) provides that

If it appears that a defendant . . . is prejudiced by a joinder of . . . defendants in an indictment or information or by such joinder for trial together, the court may . . . grant a severance of defendants . . .

 The general rule is that the granting of a severance is within the sound discretion of the trial court. Opper v. United States, 348 U.S. 84, 99 L. Ed. 101, 75 S. Ct. 158 (1954); Application of Gottesman, 332 F.2d 975 (2d Cir. 1964) (per curiam); Gorin v. United States, 313 F.2d 641 (1st Cir.), cert. denied, 374 U.S. 829, 10 L. Ed. 2d 1052, 83 S. Ct. 1870 (1963); Dennis v. United States, 302 F.2d 5 (10th Cir. 1962). The moving party has the burden of showing prejudice. Fisher v. United States, 324 F.2d 775 (8th Cir. 1963), cert. denied, 377 U.S. 999, 12 L. Ed. 2d 1049, 84 S. Ct. 1935 (1964); see United States v. Brown, 335 F.2d 170 (2d Cir. 1964). The decision of this circuit in United States v. Bozza, supra, would appear to either promulgate an exception to the general rule or give an example of a situation in which a trial judge will be deemed to have abused his discretion in refusing to grant a severance - in effect, an application of the general rule.

 The effect of Bozza relates to the second contention raised by the defendant Leighton and to the corresponding contention of the defendant Miller as to the prejudicial effect on the jury of any statements made by either defendant out of the presence of the other. Before this issue is reached, the defendant Leighton's first contention can be disposed of. Leighton argues that he is considering calling his co-defendant as a witness in his behalf and that if Miller asserts his constitutional privilege less prejudice will result if Miller appears as a witness rather than as a co-defendant. In a similar case to the one at bar, where the same contention was raised, the Court of Appeals for the First Circuit held in Gorin v. United States, supra at 645-646 that

There is no reason to think that a co-defendant would be any more willing to waive his constitutional privilege against self-incrimination when called as a witness at a separate trial than he would be willing not to insist upon his privilege as a defendant not to take the stand. Moreover, in Olmstead v. United States, 19 F.2d 842, 847-848, 53 A.L.R. 1472 (C.A. 9, 1927), affirmed as to other matters 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928), it was held that the inability of a defendant in a conspiracy case to use the testimony of co-defendants in his defense is not enough to show abuse of discretion in refusing a motion for severance.

 The argument advanced by the defendant in Gorin was deemed "unrealistic" by the Court. Id. at 645. It does not appear that any more "realistic" argument is made in the instant case or that sufficient [evidence] has been set forth in defendant Leighton's argument to justify a severance.

 In regard to the second argument for a severance, a more difficult problem is presented because of the Bozza case. Initially, I might note that a long line of decisions has held that the mere contention that one defendant may have made admissions which allegedly implicated a co-defendant is not a conclusive ground for ordering a severance. Opper v. United States, supra, 348 U.S. at 95, 75 S. Ct. 158; Katz v. United States, 321 F.2d 7 (1st Cir.), cert. denied, 375 U.S. 903, 11 L. Ed. 2d 144, 84 S. Ct. 193 (1963); Costello v. United States, 255 F.2d 389 (8th Cir.), cert. denied, 358 U.S. 830, 3 L. Ed. 2d 69, 79 S. Ct. 52 (1958); Hall v. United States, 83 U.S. App. D.C. 166, 168 F.2d 161 (1948), cert. denied, 334 U.S. 853, 92 L. Ed. 1775, 68 S. Ct. 1509 (1948); United States v. Kahaner, 203 F. Supp. 78 (S.D.N.Y. 1962), aff'd, 317 F.2d 459 (2d Cir.), cert. denied, 375 U.S. 836, 11 L. Ed. 2d 65, 84 S. Ct. 74 (1963). Defendants argue that Bozza limits the general rule while the Government contends that that decision must be limited to confessions. It is my opinion that Bozza does neither. Rather, it would appear that the decision merely represents an example of an application of the severance rule.

 The pertinent problem presented to the Bozza court was the effectiveness of instructions to the jury regarding the admissibility of a confession of a co-defendant. The Court stated that "we hold only that there is a point where credulity as to the efficacy of such instructions with respect to a confession implicating co-defendants is overstrained, and that this point was reached here." United States v. Bozza, supra at 217. In such a case, the trial court was in error in failing to grant a motion for a severance. Ibid. I think it is clear that the above-mentioned holding does not require a severance in every case in which the Government may plan to use a confession, admission or other statement. Indeed, the Court of Appeals would not hold that instructions to the jury were insufficient in each and every case in which there are multiple defendants and one has made a statement implicating other defendants. *fn1" In Bozza, the Court stated that Delli Paoli v. United States, 352 U.S. 232, 1 L. Ed. 2d 278, 77 S. Ct. 294 (1957) did not create "a conclusive presumption that the jury will follow a proper instruction to consider a confession only against the confessor and to ignore its significance as to other defendants." 365 F.2d at 216. Additionally, the Court found that the Supreme Court in Delli Paoli recognized "that there may be situations in which admission of a confession implicating co-defendants would be prejudicial in spite of proper instruction." Ibid.

 In Delli Paoli, the Supreme Court found that the jury most likely followed the instructions because (1) the conspiracy was simple so that each defendant's role in it was readily understood; (2) the trial court emphasized the separate interests of each defendant throughout the trial; (3) the introduction into evidence of the confession was deferred until the end of the Government's case; (4) the confession was merely corroborative and was largely cumulative and (5) the record did not indicate confusion on the part of the jury. Delli Paoli v. United States, supra at 241-42.

 In distinguishing Delli Paoli, the Court in Bozza found that the conspiracy was much more involved, the confession more than merely cumulative, *fn2" and that there was real doubt whether the jury followed the trial court's instruction concerning the application of the confession. *fn3"

 The problem I face is succinctly set forth in the dissenting opinion of Judge Moore in Bozza. He stated that

"the result and the opinion itself clearly advises all prosecutors and trial judges, who rely upon previous law in permitting multi-defendant trials in which a confession or a statement of one particular defendant may be offered and which the jury by employing common intelligence might speculate or conclude involved other defendants, that they so rely at their peril." United States v. Bozza, supra at 227.

 This problem is aggravated by the July 1, 1966 amendment to Rule 14 of the Federal Rules of Criminal Procedure which provides a procedure for determining the possible prejudice to a party on a motion for severance by allowing in camera inspection by the court of any statements or confessions of a defendant which the Government plans to introduce in evidence at the trial. See Notes of Advisory Committee to Rule 14 (as amended). If the motion for a severance is made pre-trial, as it should be, the Court is at a loss as to how a proper determination can be made at that time. For it is clear from Bozza that the question of a severance is intricately interwoven with the question of the efficacy of jury instructions where there is the possibility of a defendant's statement being introduced at the trial. And it is submitted that in such a case, regardless of the amendment to the Federal Rules of Criminal Procedure, the almost hind-sight criteria enunciated in Bozza and in Delli Paoli make a proper exercise of discretion at a pre-trial proceeding impossible for all practical purposes. The pre-trial judge, at this stage of the proceedings, cannot determine what evidence will be introduced or whether the trial judge will give adequate instructions, whether the Government will introduce the confession or statement in evidence at the end of its case, and, if so, to what extent the statement will be merely cumulative, or whether there will be confusion on the part of the jury regardless of the provision for examination of any statement in camera. Further, there is nothing before me to indicate that the Government intends to introduce in evidence at the trial any statement made by the defendants other than the mere supposition by the defendants that this will be done. *fn4"

 I conclude that under the circumstances presented herein no resolution of such motion can properly be made before the trial. Accordingly, the motion is denied without prejudice to its renewal before the trial judge when the ...

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