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December 4, 1970

Raymond MARQUEZ, a/k/a Spanish Raymond, Anthony Angelet and Pedro Rivera, a/k/a "Pete Russo," Defendants

Edward Weinfeld, District Judge.

The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, District Judge.

This is the second motion made by the defendant Rivera to obtain a severance of his trial from that of his codefendants, all of whom are charged in a three-count indictment with violation of 18 U.S.C., sections 1952 and 2, by using interstate commerce facilities to distribute gambling proceeds (count 1), and to commit extortion (count 2), and conspiracy to commit the foregoing offenses in violation of 18 U.S.C., section 371 (count 3).

 The defendant's first motion was based upon the vague allegation that "[it] may very well be that the course of the trial may make it necessary for the defendant Pedro Rivera, to call his co-defendants as witnesses on his behalf." There was no allegation that the codefendants, if called, would testify, or the nature of their purported testimony. Judge Croake denied the motion upon the ground that "Rivera has failed to satisfy the burden of establishing that he will in fact be prejudiced by such a joint trial." The present motion then followed. It seeks an order in limine permitting Rivera to comment on his codefendants' failure to testify, and if the court rules that such comment will be unduly prejudicial to the codefendants under the Fifth Amendment privilege, requests that a severance be granted. There is no substance to this motion, which obviously as a mere shift in tack in a renewed effort to obtain the severance previously denied.

 Rivera states that he will testify in his own defense. His counsel states that his two codefendants have long criminal records, and anticipates that each will invoke his privilege against self-incrimination to avoid testifying upon the trial, and further that counsel intends to comment that "such refusal is evidence of * * * Rivera's innocence." Of course it is no such evidence. Whether an inference, favorable to Rivera, may be drawn from that circumstance is another matter, which we shall presently discuss.

 Preliminarily, it is observed that the movant's position is fatally defective and ambiguous. *fn1" He has glossed over the difference between the codefendants foregoing their statutory privilege to testify in their own defense upon their trial and their right, if called as witnesses at a separate trial, to assert their constitutional privilege against self-incrimination. *fn2" Movant's counsel states only that "we intend to comment upon the refusal of the co-defendants to testify. * * *" He does not state whether at a separate trial he would seek to call the two codefendants with the expectation that each would assert his privilege against self-incrimination. *fn3" And, assuming he has a right to comment on the codefendants' assertion of the privilege when called as witnesses at a separate trial, he does not state how doing so would benefit him. Movant has failed to show the nature of his defense; he has not shown in what respect, if any, his defense is inconsistent with or antagonistic to that of his codefendants. Thus, upon the papers here presented, Rivera has made no showing of probable prejudice if he is not permitted to comment upon his codefendants' silence or the assertion of their privilege against self-incrimination, and this alone requires denial of his motion. *fn4"

 However, far more fundamental reasons require denial of the motion. It is beyond challenge that upon a joint trial any comment by Rivera upon the failure of his codefendants to take the witness stand would constitute a violation of their rights under the Fifth Amendment. *fn5" Recognizing this, Rivera asks for a separate trial from his codefendants, apparently upon an assumption that if the codefendants were there called as witnesses by the defense, *fn6" and they refused to testify in the exercise of their constitutional right against self-incrimination, he would be free to comment thereon and entitled to an instruction which would permit the jury to draw an inference in his favor. To support this contention, he places his principal reliance upon De Luna v. United States. *fn7" In that case, de Luna and Gomez, after denial of a motion for a separate trial, were tried jointly on a narcotics charge. They were the occupants of a moving car from which police had seen Gomez throw a package containing narcotics. Gomez took the witness stand. He asserted his innocence and placed all blame on de Luna. He testified de Luna had the package, saw the police approach, and threw it to Gomez, telling him to throw it out of the window. De Luna did not testify. His lawyer argued to the jury that de Luna was being made the scapegoat, and that Gomez alone had the package at all times. On the other hand, Gomez's attorney, in his summation, contrasted Gomez's willingness with de Luna's unwillingness to take the witness stand, and argued that an honest man is not afraid to take the stand and testify. Gomez was acquitted; de Luna was found guilty. On appeal, de Luna's conviction was reversed because of comment by Gomez's attorney upon de Luna's exercise of his right not to testify. The precise holding of the Fifth Circuit Court of Appeals was that it was a violation of de Luna's constitutionally guaranteed right to remain silent upon his trial for the trial court to have permitted Gomez's attorney to comment unfavorably on de Luna's failure to testify. All three judges concurred in this holding. However, two of the judges, in dictum by Judge Minor Wisdom, observed:

"If an attorney's duty to his client should require him to draw the jury's attention to the possible inference of guilt from a co-defendant's silence, the trial judge's duty is to order that the defendants be tried separately." *fn8"

 And the dictum was broadened:

"And considering the case from Gomez's point of view, his attorneys should be free to draw all rational inferences from the failure of a co-defendant to testify, just as an attorney is free to comment on the effect of any interested party's failure to produce material evidence in his possession or to call witnesses who have knowledge of pertinent facts. Gomez has rights as well as de Luna, and they should be no less than if he were prosecuted singly. His right to confrontation allows him to invoke every inference from de Luna's absence from the stand." *fn9"

 Circuit Judge Bell expressed disagreement with this pronouncement, stating that while "[it] was proper in the defense of Gomez for his counsel to comment upon the fact that he had taken the stand * * * it was improper for him to comment upon the fact that de Luna had not taken the stand." And he added: "The opinion of the majority will create an intolerable procedural problem." *fn10"

 While the majority dictum seemingly gives support to petitioner's claim that at a separate trial he would be entitled to comment upon his codefendants' assertion of their constitutional privilege, I must respectfully disagree with its learned author. *fn11" The issue is one of constitutional significance. The right against self-incrimination is not a mere rule of evidence but a fundamental constitutional right available to a witness as well as to an accused. *fn12" The history and development of the Fifth Amendment has been extensively reviewed and need not be recounted in detail here. *fn13" It is sufficient to observe that in recent years the Supreme Court has given forceful expression to its thrust:

"Recent re-examination of the history and meaning of the Fifth Amendment has emphasized anew that one of the basic functions of the privilege is to protect innocent men. Griswold, The Fifth Amendment Today, 9-30, 53-82. 'Too many, even those who should be better advised, view this privilege as a shelter for wrongdoers. They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege.' Ullmann v. United States, 350 U.S. 422, 426, [76 S. Ct. 497, 500, 100 L. Ed. 511]. See also Slochower v. Board of [Higher] Education, 350 U.S. 551, 100 L. Ed. 692, 76 S. Ct. 637, when, at the same Term, this Court said at pp. 557-558, [350 U.S. 551, 76 S. Ct. 637, at page 641, 100 L. Ed. 692]: 'The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.'" *fn14"

 It is true, the holding in Grunewald was that an accused's prior assertion of the privilege against self-incrimination before a grand jury could not be used to impeach his general credibility when he subsequently answered the same questions at his trial. *fn15" However, it is not without interest that four Justices, while in agreement with the Court's holding, did not accept the limitation of the holding to "the circumstances of this case." Justice Black, in his concurring opinion, joined in by Chief Justice Warren and Justices Douglas and Brennan, said:

"* * * I do not, like the Court, rest my conclusion on the special circumstances of this case. * * * It seems peculiarly incongruous and indefensible for courts which exist and act only under the Constitution to draw inferences of lack of honesty from invocation of a privilege deemed worthy of enshrinement in the ...

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