Appeal from judgment of the United States District Court for the Southern District of New York, Robert J. Ward, J., convicting defendant of conspiracy to violate federal narcotics laws. In a previous trial, before Charles L. Brieant, J., defendant had been severed from codefendants and a mistrial declared as to him alone without his consent in order to avoid prejudicing codefendants through use of admissions made by defendant. The Court of Appeals, Gurfein, Circuit Judge, held that the Double Jeopardy Clause of the Fifth Amendment barred defendant's conviction and ordered that the indictment against him be dismissed. Reversed.
Smith, Timbers and Gurfein,*fn* Circuit Judges.
This appeal presents the picture of an able trial judge, the Honorable Charles L. Brieant, faced with the unusual dilemma of conflicting constitutional mandates, the Confrontation Clause of the Sixth Amendment as expressed in the Bruton rule*fn1 and the Double Jeopardy Clause of the Fifth Amendment.
Solomon Glover appeals from a conviction entered on May 8, 1974 in the Southern District of New York after a two-and-a-half-day trial before the Honorable Robert J. Ward and a jury. Glover was found guilty of conspiracy to violate the federal narcotics laws, 21 U.S.C. § 846, under Count 1 of Indictment 73 Cr. 327.*fn2 He was sentenced to a term of one year imprisonment with a special parole of three years to follow. His principal ground of appeal is that he was "twice put in jeopardy" in violation of the Fifth Amendment.
The indictment in question charged thirteen persons including Glover with the conspiracy mentioned. Four of these defendants, including Glover, were brought to trial before Judge Brieant and a jury. On July 23, 1973 after four days of trial the court severed the case against Glover and directed a mistrial as to him, in the court's own words, "without his consent."
Glover then moved to dismiss the indictment on the ground that a subsequent trial would violate his right not to be put twice in jeopardy. Judge Brieant in a thoughtful opinion denied his motion,*fn3 and Glover was thereafter tried before Judge Ward and a jury and convicted of the very conspiracy recounted above on the same indictment.
We turn to the events that pose the issue on appeal.
The trial had begun on July 16 before Judge Brieant. Late in the afternoon of Friday, July 20, written reports of three oral statements made by Glover to government agents were shown to Judge Brieant for the first time by the Government though they had previously been shown to Glover's attorney.*fn4 Immediately upon viewing the reports of the oral statements of Glover, the Court advised counsel for the Government and all defendants that the statements presented a Bruton problem and that he would give counsel "an opportunity to organize your thoughts on it and give me briefly what you have in mind on it."
Though the attorneys were to brief the matter over the weekend, the trial judge in an effort to avoid wasting the jurors' time, ordered the trial to proceed on Friday afternoon.
The Government, on its part, though concededly not a single bit of evidence had been produced against Glover himself thus far, now introduced a witness who testified directly about Glover. As the Court noted, "this testimony was the first evidence received in the trial bearing upon the guilt of Glover."*fn5
By Monday, July 23, the trial judge had reached a decision that "it looks pretty clear to me that to admit any of this statement would violate the Bruton rule." Glover's attorney at this juncture, consonant with his obligation to his client, refused to move for a severance though he had previously anticipated doing so.
The Court then told the Assistant U.S. Attorney that he had two alternatives open to him. "You may either proceed without using the statement or you may move for a severance and mistrial." The Government moved for a severance of the defendant Glover. The Court reluctantly granted the severance because it believed that the statements of Glover would be unduly prejudicial to his co-defendants even with redaction.
To the extent that it is relevant to the issue now before us, we believe that Judge Brieant was right in his analysis of the Bruton problem as he later expounded it on the subsequent motion to dismiss the indictment. His conscientious regard for the rights of the co-defendants properly led him to the exclusion of the oral statements by Glover. See e.g. United States v. Wilkins, 367 F.2d 990 (2 Cir. 1966); United States v. Bozza, 365 F.2d 206 (2 Cir. 1966) (anticipating Bruton).
Having come to that pass, the court had the option of permitting the trial to continue against Glover as well, without allowing the admissions to be available to the Government against Glover, or to sever and allow the prosecution to tender Glover's admissions against himself at a second trial against Glover alone. The trial judge chose the second option on the obviously considered view that this would not constitute double jeopardy under the Fifth Amendment. We are constrained to disagree.
The Double Jeopardy Clause of the Fifth Amendment reads as follows: "nor shall any person be subject for the same offense to be ...