The opinion of the court was delivered by: SWEET
This court presently has four motions pending before it. Three are for severance, by defendants Goodman, Marson and Cannatella, and the fourth was the subject of an In camera proceeding before this court. The relief requested at the In camera proceeding is hereby denied at this time with leave granted to renew at any future time. For the reasons set forth below, Goodman's motion for severance is granted; the motions by Cannatella and Marson are denied.
Goodman seeks a severance on the basis that Eliot H. Weisman, a co-defendant and alleged co-conspirator ("Weisman") possesses certain exculpatory information and that Weisman's testimony, unavailable at a joint trial, is crucial to his defense.
In determining whether to grant a severance in order to obtain testimony of a co-defendant four criteria must be considered:
(1) the sufficiency of the showing that the co-defendant would testify at a severed trial and waive his Fifth Amendment privilege, . . .
(2) the degree to which the exculpatory testimony would be cumulative, . . .
(3) the counter arguments of judicial economy, and . . .
(4) the likelihood that the testimony would be subject to substantial, damaging impeachment . . . .
Goodman has submitted to this court an affidavit by Weisman stating that he would waive his Fifth Amendment privilege, and testify at a separate trial of Goodman, if that trial were subsequent to Weisman's own trial. The affidavit also sets forth the substance of Weisman's proposed testimony. Further, at a voir dire before this court, Weisman took the stand and, under cross- examination by the Assistant United States Attorney, re-affirmed that his affidavit was based on personal knowledge and his willingness to waive his Fifth Amendment privilege and testify at a trial subsequent to his. The situation here is more favorable to Goodman than that which existed in United States v. Shuford, 454 F.2d 772, 778 (4th Cir. 1971), where the court noted:
In the present instance, however, we are not called upon to engage in an exercise of clairvoyance. Both Shuford and Jordan indicated quite clearly to the trial judge not only that Jordan would testify if granted a severance, but also the precise content of the expected testimony and its importance. This is not to say that it is beyond question that Jordan's testimony would be forthcoming after severance. The movant is not put to such stringent proof. A reasonable probability appearing that the proffered testimony would, in fact, materialize, Shuford should not have been foreclosed from the benefits of Jordan's pivotal testimony simply because that probability was not an absolute certainty. United States v. Echeles, 352 F.2d 892 (7th Cir. 1965); United States v. Gleason, 259 F. Supp. 282 (S.D.N.Y.1966). (Footnotes omitted.)
Goodman has satisfied this first criterion with respect to Weisman's proposed testimony.
Contrary to the Government's contention, United States v. Finkelstein, supra, does not require a contrary result. First, not only is there here a sworn affidavit, but, pursuant to a Government subpoena, Weisman has testified as to the information contained therein. Second, although in Finkelstein the affidavit of the witness was not convincing, the court, when considering the quality of the showing, did not at that juncture consider the alternative of ordering the sequence of trials. The Second Circuit, in distinguishing cases where such consideration was relevant (See e.g., Byrd v. Wainwright, 428 F.2d 1017 (5th Cir. 1970)), held that such ordering was not practical in the case before it four separate trials would have been required. Such is not the situation here. As in Wainwright, supra, there is "(only) one defendant with a unique interest in being tried later than the others . . . ". Id. at 1022. See also United States v. Shuford, supra at 777 n. 5. Severance is warranted in a situation such as this. See United States v. Gleason, 259 F. Supp. 282 (S.D.N.Y.1966).
Furthermore, contrary to the Government's assertion, Goodman does not have to establish that Weisman would be willing to testify at a separate trial of Goodman regardless of the order of trials. Although United States v. Gay, 567 F.2d 916 (9th Cir.), Cert. denied, 435 U.S. 999, 98 S. Ct. 1655, 56 L. Ed. 2d 90 (1978) does support the proposition that this court is not required to "play games" with its trial calendar, at no point does the Ninth Circuit state that such consideration alone is sufficient for denial of severance. Indeed, the court stated that:
We mean in no way suggest that trial courts should, in all cases, reject an offer of a co-defendant witness to provide exculpatory testimony conditioned on a separate trial prior to that of the movant. Indeed, there is no question but that the purpose of a severance is more fully implemented when the co-defendant witness is tried first, and consequently is not deterred from providing exculpatory testimony by the prospect of forfeiting his Fifth Amendment privilege. Conversely, in circumstances wherein the trial court would abuse its discretion by not granting a severance, it might well be error for the court to ...