The opinion of the court was delivered by: METZNER
Defendant Seigenfeld has made several motions in this case in which he and eight other defendants have pleaded not guilty to an indictment charging them with conspiring to violate §§ 77q(a) and 77x of Title 15 of the United States Code in the sale of the common stock of Donbar Development Corporation.
The primary basis for this motion has become a common one urged by a defendant in a multiple-defendant indictment. Seigenfeld denies any involvement in a conspiracy and asserts that it will be necessary for him to call Florea, a codefendant, to testify that Florea did not offer or pay Seigenfeld any money to buy or sell Donbar stock.
His attorney has stated in an affidavit that:
"I am advised that co-defendant Florea has stated to at least two persons that he did not offer or pay defendant Seigenfeld any money to buy or sell Donbar stock, and that he did not arrange for such offer or payment to be made to defendant Seigenfeld by anyone else."
Seigenfeld urges that if he is denied a severance he is foreclosed from calling Florea as a witness, United States v. Housing Foundation of America, 176 F.2d 665 (3d Cir.1949), and he may not comment on the failure of Florea to take the stand in a joint trial if such turns out to be the case, De Luna v. United States, 308 F.2d 140, 1 A.L.R.3d 969 (5th Cir.1962). He claims that if he has a separate trial he may call Florea as a witness, and if Florea invokes his Fifth Amendment privilege then he can comment on this fact to the jury. At this point no one knows, including Florea, which of the possible alternatives he will choose.
The disposition of this motion must accommodate the rule permitting the joinder of defendants in the same indictment who are alleged to have participated in the same series of transactions (Fed.R.Crim.P. 8(b)) and the rule which allows the court to grant a severance on a showing by a defendant that he will be prejudiced by a joint trial (Fed.R.Crim.P. 14). A charge of conspiracy is, of course, a classic example of the necessity for a joint trial. Since the existence of the conspiracy must be proven from the same evidence, the persons jointly indicted should be tried together. United States v. Lebron, 222 F.2d 531, 535 (2d Cir.1955), cert. denied, 350 U.S. 876, 76 S. Ct. 121, 100 L. Ed. 774 (1955). The fact that, in addition, individual proof must also be forthcoming against each defendant does not change this rule. Joint trials obviate the necessity of a series of trials with the attendant large expenditure of time and money. They also avoid possible prejudice to the Government. The burden is on the moving defendant to show that he will be so severely prejudiced by a joint trial that it would in effect deny him a fair trial. United States v. Haim, 218 F. Supp. 922, 931 (S.D.N.Y.1963); United States v. Van Allen, 28 F.R.D. 329, 338 (S.D.N.Y.1961).
The question presented here is whether Seigenfeld has made a sufficient showing to entitle him to a severance. The two cases usually relied on to support a motion for a severance before trial are United States v. Echeles, 352 F.2d 892 (7th Cir.1965), and United States v. Gleason, 259 F. Supp. 282 (S.D.N.Y.1966). In Echeles the codefendant had testified on a prior trial, exculpating Echeles of any involvement in the crime. In Gleason there was no dispute between the Government and the moving defendant that a codefendant had in the past made written and oral exculpatory statements concerning the movant. These two cases were decided on a clear showing of what the codefendant would testify to, and thus the necessity of affording the defendant an opportunity of getting such testimony before the jury.
At the other end of the spectrum, where pretrial applications for severance were denied, are cases such as United States v. Wolfson, 282 F. Supp. 772 (S.D.N.Y.1967) (a mere assertion that the defendant had need to call his codefendants as witnesses); United States v. Crisona, 271 F. Supp. 150 (S.D.N.Y.1967) (no facts were furnished as to the nature, extent and importance of the exculpatory testimony that would be offered by codefendants); United States v. Saporta, 270 F. Supp. 183 (E.D.N.Y.1967) (there was no affidavit or other evidence offered that the codefendants would testify on the movant's behalf if there were a severance); and United States v. Berman, 24 F.R.D. 26 (S.D.N.Y.1959) (no showing that the codefendant might be willing to testify in the movant's favor). In each of the first three cases cited above, the court distinguished Echeles and Gleason because of the clear showing of the right to relief that existed in those cases.
In United States v. Kahn, 366 F.2d 259, 264 (2d Cir.1966), the court held that the possibility of one defendant testifying on behalf of a codefendant does "not make the denial of a motion for severance erroneous [citing cases], at least in the absence of anything in this record indicating that the codefendant would have given exculpatory evidence, see United States v. Echeles, 352 F.2d 892 (7th Cir.1965)."
It thus appears that a movant should come within the clear showing evidenced in Echeles and Gleason before a motion for a severance should be granted. The affidavit in support of this motion neither indicates who advised the attorney what Florea said nor the names of the persons to whom he made statements, nor are there affidavits from them as to what he said. At this stage of the proceedings, therefore, this motion must be denied.
However, future events may create sufficient basis for granting the motion. The trial judge has the duty of granting a severance whenever it appears that prejudice exists to one defendant. Schaffer v. United States, 362 U.S. 511, 516, 80 S. Ct. 945, 4 L. Ed. 2d 921 (1960). In Wolfson, Crisona and Berman, supra, the motions for a severance were denied, but the right to renew such motions was reserved for the trial judge.
While these views dispose of this branch of the motion, reference should be made to Seigenfeld's argument that he will be prejudiced because he will be unable to comment if Florea fails to take the stand on a joint trial. In De Luna, supra, the court reversed the conviction of a codefendant when a defendant commented on his refusal to take the stand. Obviously, the prejudice there was not to the defendant in whose shoes Seigenfeld stands, but to the codefendant in whose shoes Florea stands. However, the court, by way of dicta, said that in such situation the defendant is entitled to a severance. Thus, De Luna indicates that a severance is in order when a defendant in pursuit of his own acquittal prejudices the right of a codefendant to a fair trial.
Seigenfeld gives De Luna a breadth not really existing in the case. The question is not of a right to comment, but rather, whether a defendant should be permitted to comment in order to assure him a fair trial. In United States v. Kahn, 381 F.2d 824 (7th Cir.1967), cert. denied, 389 U.S. 1015, 88 S. Ct. 591, 19 L. Ed. 2d 661 (1967), the court ...