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Volume Eight Masthead
Editors-in-Chief Richard Oberto
Managing Editor Maybell Romero
Executive Articles Editor Christopher Van Meir
Submissions Editor Daniel Harris
Web Editor Miguel Ruiz
Practitioner's Corner Editor Chorisia Folkman
Bone Burke
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Irreconcilable
Differences: The Ninth Circuit’s Conflicting Case Law Regarding Mutually
Exclusive Defenses of Criminal Codefendants by Scott Hamilton Dewey* Printable Version (Opens in a new window) [Page 1]
“‘I saw a lizard come darting forward on
six great taloned feet and fasten itself to a [fellow soul]. . . [T]hey
fused like hot wax, and their colors ran together until neither wretch nor
monster appeared what he had been when he began...’
“In this case, we are concerned with the
specific prejudice that results when defendants become weapons against
each other, clawing into each other with antagonistic defenses. Like the
wretches in Dante’s hell, they may become entangled and ultimately fuse
together in the eyes of the jury, so that neither defense is believed and
all defendants are convicted. Under such circumstances, the trial judge
abuses its discretion in failing to sever the trials of the
co-defendants.”
—— Circuit Judge Irving S. Goldberg, writing
for the majority in
United States v. Romanello,
726 F.2d 173, 174 (5th Cir. 1984)
(citing
Dante, The Inferno, Canto
XXV, Circle 8,
Bolgia 7, lines 46-48, 58-60 (J. Ciardi,
transl.)) [Page
2]
Joint trials of criminal defendants are
integral to the federal criminal justice system.[1]
As Justice Scalia observed in Richardson v. Marsh,[2]
“Joint trials generally serve the interests of justice by . . . enabling
more accurate assessment of relative culpability,” “avoiding the scandal
and inequity of inconsistent verdicts,” and contributing to “both the
efficiency and the fairness of the criminal justice system” by averting
the inconvenience, cost, and trauma of multiple presentations of the same
evidence and witnesses.[3]
Thus, Rule 8(b) of the Federal Rules of Criminal Procedure states that
“[t]wo 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.”[4]
Both the Supreme Court and the Circuit Courts of Appeal generally favor
such joint trials.[5]
Yet joint trials also pose heightened risks
of prejudice to defendants.[6]
For this reason, Rule 14 allows severance even if defendants are properly
joined under Rule 8(b).[7]
Thus, Rules 8(b) and 14 pull in opposite directions to strike a balance
between judicial efficiency and the risk of prejudice.
This tension between the rules relates to a
deeper, more fundamental tension between competing constitutional rights.
The Fifth and Sixth Amendments can pit one codefendant’s right to remain
silent against another’s right to explore and produce all exculpatory
evidence. Other problems include: (1) prejudice to one defendant from a
codefendant’s statement or [Page 3]
confession (the Bruton problem);[8]
(2) the denial of Confrontation Clause rights arising out of one
defendant’s inability to cross-examine another’s witnesses;[9]
(3) prejudice from one defendant’s manifest guilt rubbing off on another
when there is a great disparity in the weight of evidence between
codefendants;[10]
(4) prejudice from a defendant in a joint trial being denied access to
“essential exculpatory evidence” that would have been available in a
separate trial;[11]
and (5) other factors that might prevent a jury from determining the guilt
or innocence of defendants on an individual basis.”[12]
Inconsistent, conflicting defenses are yet
another factor posing risk of prejudice in joint trials.[13]
Various courts have used different terms to describe the issue of
conflicting defenses, but usually one of three constructions is used:
mutually antagonistic defenses, mutually exclusive defenses, and
irreconcilable defenses. These three terms often are used
interchangeably, but they should not be. “Mutually antagonistic” defenses
include all defenses that conflict, such that the jury’s acceptance of one
will make it harder for them to accept the other. “Mutually exclusive”
and “irreconcilable” defenses represent an extreme subcategory of
“mutually antagonistic” defenses: defenses that are truly irreconcilable,
such that for the jury to believe and acquit one defendant, it must
convict the other.[14]
By contrast, other antagonistic defenses may be difficult
[Page 4] but
not impossible to reconcile. However, many decisions, including several
addressed in the following discussion, fail to make that distinction.[15]
This distinction is crucial, since various circuits claim to have a rule
requiring mandatory severance where defenses are mutually exclusive, but
not where they are merely antagonistic.[16]
Unlike the more familiar Bruton
problem, for which the Supreme Court over the years has developed a fairly
clear set of instructions to trial courts,[17]
the problem of mutually antagonistic defenses has been addressed only
briefly.[18]
In Zafiro v. United States, the Supreme Court considered the issue
of mutually antagonistic defenses.[19]
It noted various appellate court decisions suggesting that severance might
be mandated in such situations, but the Court declined the petitioners’
invitation to adopt a bright-line rule.[20]
The Court held, “Mutually antagonistic defenses are not prejudicial per
se. Moreover, Rule 14 does not require severance even if prejudice is
shown; rather, it leaves the tailoring of relief to be granted, if any, to
the district court’s sound discretion.”[21]
[Page 5] The
Court in Zafiro did not distinguish “mutually antagonistic” and
“irreconcilable” defenses, and did not even mention “mutually exclusive”
defenses.[22]
As such, Zafiro provides trial courts with no guidelines as to
their discretion to determine when mutually antagonistic defenses are
prejudicial and when they require severance.
Normally, this is not a significant
problem. Instances of truly irreconcilable defenses
are relatively rare, as Zafiro indicates.[23]
Yet when they do arise, they inevitably create confusion for district and
circuit court judges alike as to how to handle them properly. In an
effort to simplify and set boundaries around the problem, various circuit
courts have declared a per se rule that defendants must have separate
trials when their defenses are mutually exclusive. The lines of cases
that have developed in support of this rule are flawed because the
original basis was pure dicta, and several cases cited this dicta without
recognizing it as such. Consequently, the entire line of cases has no
firm legal basis.
The case law in the Ninth Circuit is
especially problematic. In 1991, in United States v. Tootick,[24]
an appellate panel tried to stop the reiteration of dicta passing as
holdings. The court explicitly declined to adopt a per se rule against
joinder in cases involving mutually exclusive defenses.[25]
Subsequent decisions have mostly overlooked Tootick, and these more
recent decisions repeatedly have cited the earlier per se rule rejected in
Tootick.[26]
At present, Tootick and its rivals all still stand as “good law” on
the issue of mutually exclusive defenses. Thus, the Ninth Circuit’s case
law regarding irreconcilable defenses is itself irreconcilable. [Page 6] The issue of mutually exclusive defenses arose from the clash between two constitutionally protected rights. First, a defendant has a Fifth Amendment right to remain silent without a negative inference being drawn from this silence. Second, a defendant has a Sixth Amendment right to pursue all lines of inquiry that might prove his innocence. When codefendants are tried together and one defendant testifies while the other remains silent, these two rights often conflict. This situation occurred in De Luna v. United States, the seminal case in the development of the doctrine of mutually exclusive defenses. In
De Luna v. United States,[27]
police saw one of two codefendants throw a package containing drugs out
the window of a moving car.[28]
At their joint trial on drug-trafficking charges, codefendant Gomez, who
threw the package out the window, testified that he had no knowledge of
the package’s contents.[29]
He claimed that the other defendant, De Luna, had tossed it to him and
ordered him to throw it out.[30]
Each defendant blamed the other as the culprit.[31]
At trial, Gomez’s counsel commented at length on De Luna’s refusal to
testify, and De Luna’s counsel strenuously objected to this argument as
inflammatory and prejudicial.[32] Writing
for the appellate panel, Judge Wisdom offered a lengthy reflection on the
history, purpose, and legal evolution of the privilege against
self-incrimination.[33]
Judge Wisdom drew on various Supreme Court decisions and held that the
Fifth Amendment protection must be [Page 7]
broadly construed.[34]
He found that it was improper for a judge, prosecutor, or codefendant’s
counsel to comment on a defendant’s refusal to testify and penalize him
for exercising a constitutional right.[35]
More controversially, Judge Wisdom also penned dicta suggesting that the
Sixth Amendment gives a testifying defendant a right, and counsel a duty,
to “draw all rational inferences from the failure of a codefendant to
testify.”[36]
The
appellate court ruled that the prejudice to De Luna required separate
trials for De Luna and his codefendant. The court held “it seems
unrealistic” to think any jury instructions could cure the prejudice to De
Luna, given “the head-on collision” between the two codefendants, the
repetition of the comments by Gomez’s counsel, and the extended colloquy
over the comments between the trial judge and the lawyers.[37]
Therefore, the court held that the defendants needed to be tried
individually to “see the face of Justice.”[38]
Notably, the De Luna court offered no general exceptions to the
rules favoring joint trials for criminal defendants. The De Luna
court explained that jury instructions were generally sufficient to cure
potential prejudices in joint trials. In the decision, the court appears
to explain that adequate jury instructions could even cure prejudices
arising from mutually exclusive defenses between codefendants. The De
Luna court held that jury instructions are only inadequate when: (1)
sharply contradictory defenses are present, (2) the testifying defendant’s
counsel comments on the other defendant’s silence, and (3) extended
colloquy on trial severance occurs in the jury’s presence. When these
three factors existed the court found the resulting prejudice to the
non-testifying defendant was beyond the curative power of jury
instructions. These multiple factors were analyzed cumulatively, rather
than as separate, independently [Page 8]
sufficient grounds for severance. Aside from brief comments noting that
each defendant blamed the other[39]
and the reference to a “head-on collision” between the rights of the
defendants,[40]
the De Luna court says nothing about mutually antagonistic
defenses. Specifically, the decision fails to detail at what point
mutually antagonistic defenses become so mutually exclusive or
irreconcilable that severance is automatically required.
Ultimately, the central issues at play in De Luna were (1) actual
prejudice and (2) the assumption that counsel for a non-testifying
defendant has a right to comment on a codefendant’s silence — an
assumption found highly questionable in the concurrence and various
subsequent decisions.[41]
While the presence of mutually exclusive defenses was a factor in
prompting the severance of the defendants in De Luna; it was never
asserted to be a separate, independently sufficient basis for severance.
[42] Yet De Luna has
been applied as the foundation for the tangled lines of precedent standing
for the per se rule of severance for mutually exclusive defenses.
[Page 9] In
proclaiming a mandatory severance rule in cases with mutually exclusive
defense, the Ninth Circuit mistakenly relied on dicta in Fifth and Seventh
Circuit decisions.[43]
The cases initially cited by the Ninth Circuit--United States v.
Salomon,[44]
United States v. Marable,[45]
and United States v. Romanello[46]
from the Fifth Circuit, and United States v. Ziperstein[47]
from the Seventh--also incorrectly applied dicta as rules from earlier
cases, particularly United States v. Kahn.[48] A.
Kahn and its progeny
In
Kahn, the codefendants argued for severance based on the reasoning
contained in De Luna. They did not directly raise the issue of
irreconcilable defenses. In Kahn, three defendants--Kahn and two
of his attorneys--were convicted of conspiring to illegally use funds from
several federally insured financial institutions for their personal
benefit, along with various lesser counts.[49]
Kahn’s lawyers argued on appeal that the trial court’s refusal to sever
their cases from Kahn’s was prejudicial error.[50]
They argued that this denied them the opportunity to comment on Kahn’s
refusal to take the stand or to call Kahn to the witness stand.[51]
Kahn’s [Page 10] lawyers further argued that
this led to the introduction of evidence that would have been inadmissible
against them in a separate trial.[52]
Since
the codefendants relied on De Luna to make their arguments, the
Kahn court carefully went through the De Luna court’s
reasoning, including the section on mutually exclusive defenses.[53]
In a lengthy reflection on the risks of prejudice in conspiracy trials,
the Kahn court rejected the codefendants’ severance arguments.[54]
They adopted the reasoning in Judge Bell’s concurring opinion against the
De Luna majority’s presumption that a defendant has a clear
constitutional right to comment on a codefendant’s refusal to take the
stand.[55] The
court in Kahn noted friction between the defenses of Kahn’s
lawyers, who sought to portray themselves as innocent dupes of a
“dexterous mastermind, Kahn,” and that of Kahn, who presented himself as
acting in good faith with the advice and cooperation of “responsible and
reputable individuals.”[56]
But the court distinguished De Luna regarding irreconcilability,
finding that the “degree of antagonism” was not as great as in De Luna,
“where the defenses were mutually exclusive. There, if one defense were
believed, the other could not be.”[57]
By contrast, the court found it unclear that acquittal of his lawyers
would have precluded acquittal of Kahn or vice versa. It noted the large
volume of testimony and evidence presented to the jury, but concluded that
the extensive evidence “did not present the jury the dilemma of mutually
exclusive defenses, with no evidentiary basis for judgment between them,
in which a comment on the failure to testify would indicate which horn of
the dilemma should be seized.”[58]
[Page 11] Thus the Kahn court,
addressing the issue only in passing, held that mutually exclusive
defenses only arise when the acquittal of one defendant precludes
acquittal of the other. This definition has become the standard in
various circuits. However, the Kahn court did not hold that such
mutual exclusivity mandates severance, because it did not need to—as with
most other cases, the defenses were not sufficiently antagonistic.
Notably, it also framed the mutual exclusivity issue in terms of
conflicting evidence, not just conflict in counsels’ characterizations of
defenses.[59]
Finally, the end of the court’s discussion frames the problem in De
Luna in terms of comments on failure to testify, not mutual
exclusivity alone.[60]
In contrast to its brief reflections on mutual exclusivity, the Kahn
court spent several paragraphs discussing and ultimately rejecting the
De Luna dicta regarding a Sixth Amendment right to comment on a
codefendant’s refusal to testify.[61] In the
end, Kahn primarily stands for the principle that severance will be
granted only on a “strong showing of prejudice.”[62]
Contrary to De Luna’s implication that a defendant’s inability to
comment on a codefendant’s silence is inherently prejudicial enough to
justify severance by itself, Kahn holds that “[t]here must be a
showing that real prejudice will result from the defendant’s inability to
comment.”[63]
To the extent Kahn discusses mutual exclusivity, it suggests that
the mere possibility of mutual exclusiveness is not enough to mandate
severance; rather, there must be actual prejudice.[64]
In short, Kahn, like De Luna, does not clearly support a
[Page 12] per se severance rule for mutually
exclusive defenses. Despite this, both the Fifth and Seventh Circuits
have interpreted Kahn to stand for a per se severance rule.
1. Fifth Circuit line of cases based on Kahn In
Marable, the Fifth Circuit, relying on Kahn, first noted the
existence of a per se severance rule in cases where the defendants have
mutually exclusive defenses.[65]
Marable involved a conspiracy to sell heroin.[66]
Marable, who was not caught in the same room with the heroin as some other
defendants were, argued that the evidence was insufficient to sustain his
conviction for conspiracy.[67]
He asserted that the trial court erred in denying his motion for severance
on various grounds, including inconsistent defenses.[68]
In upholding Marable’s conviction, the court found no conflict in the
defenses of Marable, who denied involvement in the conspiracy, and of a
codefendant, who offered no defense.[69]
The court stated,
Before a severance will
be granted due to inconsistent defenses, a defendant must demonstrate that
the defenses are antagonistic to the point of being mutually exclusive.
Absent clear evidence that the defenses of defendant and codefendant will
be conflicting, the denial of a motion for a severance on grounds of
conflicting defense is not error.
In support of this rule,
the court ultimately relied on the Kahn decision.[70]
The Fifth Circuit’s erroneous interpretation of Kahn became a
fixture in Fifth Circuit caselaw when the court in Salomon cited
this portion of the Marable decision.
In
Salomon, the court cited Marable for the rule that mutually
exclusive defenses mandate severance.[71]
In Salomon, two codefendants were convicted of possessing PCP with
[Page 13] intent to distribute.[72]
After the prosecution rested, Salomon presented no evidence.[73]
Instead, he moved for acquittal based on insufficient evidence.[74]
Salomon’s codefendant, Wood, then took the stand to argue that Salomon was
“‘the man’” in the drug operation, while he was merely entrapped into
participating by government agents.[75]
The court reversed Salomon’s conviction, holding that he suffered
incurable prejudice from Wood’s testimony about earlier joint drug
dealings that implicated Salomon.[76]
The court specifically rejected Salomon’s alternative argument that the
trial court had erred by denying his severance motion based on mutual
exclusivity of the defenses.[77]
It held that a codefendant’s reliance on an entrapment defense, in itself,
did not justify reversing the trial court.[78]
In its holding, the Salomon court only cited Marable for the
rule that mutually exclusive defenses mandate severance.[79]
Thus, the line of precedent passing through Salomon and Marable
regarding severance of mutually exclusive defenses is based on a decision
from another circuit never formally incorporated in a holding by the Fifth
Circuit.
2. Seventh Circuit cases based on Kahn
Ziperstein, from the Seventh Circuit, also cites Kahn for a per
se severance rule for mutually exclusive defenses. Five defendants
connected to a Medicaid fraud ring were convicted of mail fraud,
conspiracy to defraud the United States, and conducting a criminal
enterprise affecting interstate commerce.[80]
The defendants appealed their conviction, arguing that their trials should
have been severed from the trial of one of the acquitted defendants due to
(1) [Page 14] mutually antagonistic defenses
and (2) courtroom behavior of the acquitted defendant’s counsel.[81]
The court found insufficient antagonism to require severance even though
the acquitted defendant, while denying participation in a criminal
conspiracy, admitted the existence of the conspiracy. The court held that
the jury’s belief in the acquitted defendant’s non-participation did not
mandate the conclusion that an illegal conspiracy existed.[82]
Like the Salomon court, the Ziperstein court acknowledged
that even if the nature of the defenses did not require severance,
the conduct of a defense still might cause prejudice to other
defendants. Still it found no prejudicial error in the trial court’s
denial of severance.[83] On the
issue of antagonistic defenses, the court in Ziperstein stated,
“This circuit has a well-established standard for determining when the
claim of ‘mutually antagonistic’ defenses will mandate a severance. Such
‘mutual antagonism’ only exists where the acceptance of one party’s
defense will preclude the acquittal of the other.”[84]
However, as support for this “well-established standard,” the court
offered only Kahn and another Seventh Circuit decision, which
ultimately rested on the holding in De Luna.[85]
The Ziperstein court then offered an example of this “mutual
antagonism”: “In a case such as De Luna, where someone must have
possessed the contraband, and one defendant can only deny his own
possession by attributing possession and consequent guilt to the other,
the defenses are antagonistic.”[86]
The court neglected to note, however, that De Luna was not decided
entirely, or even primarily, on the issue of mutual exclusiveness.
Rather, the holding was based on the questions of Fifth Amendment
privilege not [Page 15] to testify and the
Fifth Circuit’s presumption of a Sixth Amendment right to comment on an
antagonistic codefendant’s silence.
B.
The Crawford/Berkowitz line of cases The
Ninth Circuit also applied a later Fifth Circuit decision, United
States v. Romanello,[87]
directly and indirectly to support a mandatory severance rule.[88]
But Romanello leads down the same path as Salomon,
Marable, and Ziperstein. The foundational decision in this
line of cases is United States v. Crawford.[89]
1. Foundations of a per se severance rule In
Crawford, the Fifth Circuit actually confronted a case where the
defenses presented by the codefendants were truly mutually exclusive. The
Crawford majority found the defenses irreconcilable and mutually
exclusive where police pulled over two defendants and discovered an
unregistered sawed-off shotgun “partially hidden” under the dashboard of
their car.[90]
Because one, the other, or both defendants had to be in possession and it
was impossible to claim ignorance, “[t]he sole defense of each was the
guilt of the other.” One defendant actively incriminated the second,
while the second pinned possession exclusively on the first, each
defendant presented witnesses hostile to the other, and the court
concluded that “[a] fair trial was impossible under these inherently
prejudicial conditions.”[91]
Crawford thus represents a rare case of true mutual exclusivity --
at least one of the defendants must be guilty.[92]
The Crawford court [Page 16] also
identified more than hypothetical antagonism; it identified actual
compelling prejudice where each defendant “was the government’s best
witness against the other.”[93]
The trial court had overruled repeated motions for severance even after
“the inevitability of prejudice should have become apparent.”[94]
Although the court found strong evidence of each defendant’s individual
guilt, “this joint trial was intrinsically prejudicial.”[95]
Having
found actual compelling prejudice, the court in Crawford could have
reached its decision based on demonstrated prejudice without any per se
rule requiring severance of irreconcilable defenses. Like the other Fifth
Circuit decisions already mentioned, Crawford presumed such a rule
rather than creating it. Interestingly, the Crawford court, unlike
some others, clearly recognized that De Luna itself did not
establish such a rule, but that the antagonism between the defenses was
only “[o]ne of the factors” favoring severance in that case.[96]
The Crawford court did not address whether jury instructions and
earlier, more active judicial control by the trial judge could have
prevented the compelling prejudice it found.[97] In
United States v. Berkowitz, the Fifth Circuit conducted its most
careful, thoughtful analysis of the considerations involved in mutually
exclusive defenses.[98]
Ultimately, however, this analysis relied on the dicta contained in
Crawford.[99]
Berkowitz is notable because it first offered the definition of mutual
exclusivity as later applied (and extended) in Romanello:
[T]he defense of a
defendant reaches a level of antagonism (with respect to the defense of a
co-defendant) that compels severance of that defendant, if the jury, in
[Page 17] order to believe the core of
testimony offered on behalf of that defendant, must necessarily disbelieve
the testimony offered on behalf of his co-defendant.[100]
The court continued on to
frame the risk of prejudice chiefly in terms of the second-prosecutor
problem: “Where two defendants present defenses that are antagonistic at
their core, a substantial possibility exists ‘that the jury will
unjustifiably infer that this conflict alone demonstrates that both are
guilty.’”[101] In
arriving at this definition of mutually exclusive defenses, Berkowitz
synthesized various earlier Fifth Circuit decisions regarding what did or
did not constitute irreconcilability.[102]
Like most other decisions considering the issue of mutually exclusive
defenses, Berkowitz found no significant conflict between the
codefendants’ noninvolvement defenses.[103]
Berkowitz’s clear emphasis on a jury’s belief in the “core of
testimony offered” requiring disbelief of a codefendant’s “testimony,” was
eventually used to support Judge Gee’s dissent in Romanello—that
the core or essence of a defense is defined by actual evidence presented,
and not counsel’s inferential pyrotechnics.[104]
Berkowitz offered no holding as to the principle of mandatory
severance of mutually exclusive defenses; instead the court presupposed
this based upon various earlier decisions, like Crawford.[105]
However, this did not prevent the court in Romanello from citing
the Berkowitz decision for a per se severance rule.
2. Evolution of the early per se severance rule
Romanello, the most recent case borrowed by the Ninth Circuit
regarding the per se severance rule, rests on the dicta in Crawford
and Berkowitz.[106]
In Romanello, the court stated, [Page 18] The Fifth Circuit has developed a fairly consistent litany of tests for determining whether severance is required in the ‘antagonistic defense’ situations. . .When co-defendants have antagonistic defenses, the courts have applied very specific tests to determine whether the trial was unfair. To compel severance the defenses must be antagonistic to the point of being irreconcilable and mutually exclusive. . .The essence or core of the defenses must be in conflict, such that the jury, in order to believe the core of one defense, must necessarily disbelieve the other. . .Such compelling prejudice does not arise where the conflict concerns only minor or peripheral matters which are not at the core of the defense.[107] The Romanello court
then found irreconcilability where one defendant in a gold jewelry heist (Vertucci)
claimed to have been robbed at gunpoint by unknown persons similar in
appearance to the other two codefendants (Romanello and Mendez), while
these two codefendants claimed that they merely had been hired, not by the
other defendant, to transport the gold and did not know it was stolen.[108]
The court held,
Obviously these
defenses are irreconcilable and mutually exclusive. If the jury believed
that Romanello and Mendez robbed Vertucci, then it could not believe that
they were innocent shippers. On the other hand, if the jury believed
their defense, then they could not have robbed Vertucci, and his defense
would cave in.[109]
Emphasizing the “second
prosecutor” problem where codefendants weaken each other’s defenses and so
strengthen the government’s argument, the court concluded, Although the
core of his codefendants’ defense was not his own guilt, they nevertheless
had to undermine Vertucci’s defense to establish their own innocence. We
hold that a defendant like Vertucci deserves a new, severed trial when: 1. the core of
his defense is the guilt of his codefendant; 2. to disprove
his defense would establish his guilt; 3. his defense
and the defense of his codefendant are irreconcilable and mutually
exclusive; 4. the
codefendant actively attacks his defense at trial; and 5. he suffers
compelling prejudice as a result.[110] [Page
19] Romanello also included other characteristic problems of
joint trials: allegations of error in admission of witnesses’ testimony
and an alleged violation of Sixth Amendment confrontation rights in denial
of severance where Vertucci did not testify.[111]
Notwithstanding their reversal of the trial court’s denial of severance on
procedural grounds, the Romanello court held that “the evidence was
sufficient to support the verdicts against all three defendants.”[112]
However, the Romanello panel was sharply divided. Judge Gee
offered a stinging and cogent dissent.[113]
Deriding the majority’s “colorful if inapposite language” that described
the defendants as “ ‘wretches in Dante’s hell’ and ‘clawing into each
other with antagonistic defenses,’”[114]
Judge Gee noted, “While the defenses are to some extent antagonistic, in
sober fact they are not antagonistic to the point of being irreconcilable
or mutually exclusive,” as required for severance.[115]
Referring to an earlier decision,[116]
he argued that the “defenses were not of their nature
irreconcilable or mutually exclusive” where the two sets of codefendants
never claimed to know each other and Vertucci never identified the others
as his alleged robbers.[117]
That Romanello and Mendez were the robbers was only an inference offered
by Vertucci’s counsel.[118]
Thus, Judge Gee disagreed with the other two judges as to how to define
the core of a defense.
[Page 20] Judge Gee argued that the core
should be based on the evidence offered, not inferences and allegations
proposed: “The core of Vertucci’s defense was that he was robbed.
Statements that merely imply that Romanello and Mendez perpetrated that
robbery are clearly ‘minor or peripheral matters which are not at the core
of his defense[.]’”[119]
Citing Berkowitz, Judge Gee reasoned, “We held that the core
of their defenses was noninvolvement in the criminal activity even though,
as here, each implied that the other was guilty.[120]
Like these, at their core the defenses of Vertucci, Romanello and Mendez
are quite consistent.”[121]
Gee charged the Romanello majority with misinterpreting the
Berkowitz rule on defenses irreconcilable at their cores:
The majority opinion
radically expands the concept of core defense to include not only the
essence of a defense (Vertucci was robbed), but also any elaboration of
that defense devised by counsel’s ingenuity that could possibly implicate
a codefendant (Vertucci was robbed by Romanello and Mendez). As
this result is not compelled by precedent in this field and seems to me
both unfortunate and unnecessary, I respectfully dissent.[122] As a
conspiracy trial, Romanello involved greater dangers from mere
association of defendants in the minds of jurors than would a
non-conspiracy trial. Whether or not the Romanello majority
improperly extended the definition of mutual exclusivity to include any
far-flung theories of counsel as well as actual evidence--and Judge Gee’s
definition of the core of a defense frankly seems more convincing than
that of the majority--Romanello did not represent a holding as to
mandatory severance of mutually exclusive defenses. Rather, the court
presumed the existence of such a rule rather than creating it and relied
on earlier cases, Berkowitz and United States v. Crawford,[123]
for that rule.[124]
In its own five-part holding (where the first three
[Page 21] parts were different ways of expressing the basic idea of
irreconcilability) Romanello, like De Luna, wove together
additional factors. Instead of giving a clear per se severance rule for
irreconcilable defenses, the court held that a defendant is entitled to
severance if the cores his and his codefendants’ defenses are mutually
exclusive, a codefendant actively attacks his defense at trial, and
he suffers compelling prejudice as a result.[125] Thus,
in both the Fifth and Seventh Circuits, there are occasionally
intersecting lines of precedent supporting the proposition that
irreconcilable defenses require severance, mostly comprised of cases
presenting no discussion about how to handle mutual exclusivity. These
lines only lead back to cases that do not create a mandatory severance
rule for mutually exclusive defenses, notably Kahn. All such cases
also ultimately depend on De Luna, which similarly provides no such
clear rule.
IV. Emergence Of A Per Se Severance Rule For Mutually
Exclusive Defenses in Ninth Circuit Case Law: Ramirez and
Sherlock
Language suggesting that mutually exclusive defenses mandated severance
first appeared in Ninth Circuit case law in United States v. Ramirez.[126]
Defendants Ramirez, Reynolds and three other codefendants were indicted
for various charges in connection with the theft of two airplanes from the
Long Beach, California airport and use of those planes to import half a
ton of marijuana from Mexico into the United States.[127]
Two codefendants entered into plea agreements and testified for the
government; another codefendant was tried and acquitted.[128]
Ramirez was convicted as the instigator and financier of the criminal
scheme; Reynolds was [Page 22] convicted of
foreign transportation of stolen aircraft.[129]
Ramirez offered an insufficient evidence defense, while Reynolds claimed
he was working as a government informer for the Los Angeles Police
Department at the time the conspiracy was formed.[130]
Among other arguments on appeal, Ramirez contended that his defense was
irreconcilable with that of Reynolds, who admitted the acts alleged.[131]
The court found that the jury’s acceptance or nonacceptance of Reynolds’s
informer defense was irrelevant to the determination of Ramirez’s guilt or
innocence, noting that since the acquitted defendant also raised an
insufficient evidence defense, Ramirez could not show that Reynolds’
defense was mutually exclusive to his own.[132]
Also, Reynolds, who took the stand in his own defense, repeatedly denied
Ramirez’s complicity.[133]
Although Reynolds’ convoluted testimony apparently helped the government’s
case, the court noted that the same might have occurred in a separate
trial and held that regardless, Ramirez had failed to show that the joint
trial violated his substantive rights.[134] In
rejecting Ramirez’s claim of a right to a severed trial, the court
observed, “Antagonism between defenses is not enough [to require
severance], even if the defendants seek to blame one another. Rather it
must be shown, on the facts of the individual case, that the defenses ‘are
antagonistic to the point of being mutually exclusive.’”
[135] To mandate severance,
it must be shown that “the acceptance of one party’s defense will preclude
the acquittal of the other party [citing Salomon and Ziperstein].”[136]
Because no mutual exclusivity was found in Ramirez’s
[Page 23] case, the decision offers no holding as to how mutual
exclusivity should be handled if it is found.
Nevertheless, the imported rule in Ramirez on mandatory
severance of mutually exclusive defenses was offered in passing in various
subsequent Ninth Circuit cases finding no mutual exclusivity, which were
themselves later cited for the same proposition.[137]
The Ramirez “holding” also appeared in various unpublished
decisions of the early 1990s finding no mutual exclusivity.[138] The
1989 decision in United States v. Sherlock[139]
imported into Ninth Circuit case law additional decisions from foreign
circuits regarding mutually exclusive defenses. Sherlock quoted
the usual language from Ramirez, adding the term “irreconcilable”
and equating it with mutually exclusive.[140]
The Sherlock court drew on Romanello, a post-Ramirez
Fifth Circuit decision, for support on mandatory severance of
irreconcilable defenses.[141]
The court also offered the Fifth Circuit’s modified definition of mutual
exclusivity: “The defendant must show that ‘[t]he essence or core of the
defenses must be in conflict such that the jury, in order to believe the
core of one defense, must necessarily disbelieve the core of the other’”[142]
[Page 24] In Sherlock, defendants
Sherlock and Charley were convicted of assault with intent to commit rape
on an Indian Reservation.[143]
They allegedly had coerced intercourse with two young women from off the
reservation during a beer-drinking party on Navajo land in Arizona.[144]
The court reversed Sherlock’s conviction on the ground of compelling
prejudice.[145]
The trial court had failed to give a curative instruction when the
prosecutor, in closing argument, violated a limiting instruction and urged
the jury to consider a statement incriminating to Sherlock made by
Sherlock’s nontestifying codefendant, Charley.[146]
The court rejected all other arguments, including one based on
antagonistic defenses. Each defendant argued that he had not performed
the alleged act.[147]
The court found the core of each defense “not so antagonistic as to be
mutually exclusive” where the jury could believe that neither, both, or
only one of the two defendants committed the acts alleged.[148]
Further, noting Fifth Circuit decisions stating that the primary purpose
of requiring severance of irreconcilable defenses was avoiding the “second
prosecutor” problem—where a joint criminal defendant faces attack from
counsel for an antagonistic codefendant as well as from the government—the
Sherlock court held that there was no such problem where each
counsel directed examination of witnesses toward establishing the
innocence of his client, not the guilt of the codefendant.[149]
Thus, Sherlock, like Ramirez, was another decision holding
mutual exclusivity absent, not deciding what to do with mutual exclusivity
if present.[150] [Page 25]
Tootick was the first Ninth Circuit case to explicitly consider
whether mutually exclusive defenses required severance per se. The two
defendants, Tootick and Frank, were each charged with brutally stabbing
and beating the victim and running him over with a car.[152]
The victim survived to testify.[153]
Each defendant’s sole defense was the guilt of the other, since there was
no evidence that any other person was present.[154]
Frank testified that he had watched in horror as Tootick stabbed the
victim twenty-three times and then gleefully licked the blood off the
knife.[155]
Tootick did not testify, but his counsel claimed that he was heavily
intoxicated and was passed out or asleep during the entire episode.[156]
From opening statements onward, the defendants’ respective counsel were
engaged in a vicious second-prosecutorial slugfest, each accusing the
other defendant and using gruesome details to maximum effect.[157] The
Tootick panel found the defenses to be truly irreconcilable: acquittal
of one defendant necessitated conviction of the other.[158]
Although Tootick did not directly accuse Frank, the court reasoned that by
claiming he was innocent, Tootick simultaneously accused his codefendant
because there was no suggestion of intervention by a third party.[159]
Despite holding that the defenses presented by Tootick and Frank were
truly irreconcilable, the court rejected automatic severance of the
defendants.[160]
The court found that the Ramirez and Sherlock
[Page 26] holdings on mutually
exclusive defenses were dicta and noted that Tootick was the first
case to require a holding on the issue.[161]
The
court discussed the prejudicial risks of antagonistic or irreconcilable
defenses at length, noting the inevitability of second-prosecutorialism
whenever codefendants blamed each other.[162]
Nevertheless, the court ultimately refused to adopt a per se rule against
joinder in cases where two defendants adopted mutually exclusive defenses,
instead holding that “in order to establish an abuse of discretion, the
defendants must demonstrate that clear and manifest prejudice did in fact
occur.”[163]
The
court found clear and manifest prejudice in Tootick.[164]
It emphasized numerous actual prejudicial incidents at trial that made
severance necessary. The court faulted the trial judge for insufficient
use of admonitory jury instructions that “lawyer talk is not evidence”
following each defendant’s sharply accusatory opening statement directed
at the other defendant,[165]
and for failing to take steps to cure prejudice at other points in the
trial.[166]
The
appellate panel expressed faith in ordinary jury instructions to cure
prejudice under normal circumstances, and even professed belief that jury
instructions could have cured prejudice in the abnormal circumstances in
Tootick.[167]
To do so would have required additional countermeasures that were absent,
such as active judicial supervision and proper and timely instructions
given or repeated immediately after each prejudicial event.[168]
[Page 27] Thus, Tootick, explicitly or
implicitly, stands for at least three major points: (1) the Ninth Circuit
has no per se rule requiring severance of mutually exclusive defenses; (2)
active use of jury instructions to cure potential prejudice can be
adequate to ensure fairness even where codefendants with mutually
exclusive defenses attack each other aggressively as second prosecutors;
and (3) severance is justified only where actual, incurable, “manifest
prejudice” is shown.[169] VI. Reemergence Of The Per Se Severance Rule: Post-Tootick Decisions
Tootick’s rule against the per se severance of irreconcilable defenses
was largely ignored.[170]
Starting with United States v. Hernandez, subsequent Ninth Circuit
opinions chipped away at the Tootick holding.[171]
In Hernandez, a case decided shortly after Tootick, the
Ninth Circuit returned to the Sherlock and Ramirez of
mandatory severance when one party’s defense precluded acquittal of the
other.[172]
Due to the brief time frame between Hernandez and Tootick,
the Hernandez court can be excused for failing to follow the newly
crafted Tootick holding; however, the cases that followed
Hernandez similarly ignored Tootick. In the
next Ninth Circuit decision to address the issue of irreconcilable
defenses, United States v. Buena-Lopez, a cocaine-distribution
conspiracy case, the court was well aware of Tootick.[173]
The Buena-Lopez court even cited it before it moved on to
distinguish the Tootick opinion.[174]
In particular, the court reasoned, In Tootick,
each defendant claimed innocence and directly accused the other of
committing the crime charged. We held that the defenses were mutually
[Page 28] antagonistic, because ‘the
acquittal of one [codefendant] necessitate[d] the conviction of the
other.’ We concluded that severance was required under the facts in that
case, because the ‘jury could not have been able to assess the guilt or
innocence of the defendants on an individual and independent basis.’
[175] The court in Buena-Lopez
found no such mutual antagonism or inability of the jury to assess the
guilt or innocence of the defendants individually.[176]
Although codefendant Rodarte testified that Buena-Lopez induced him to
sell cocaine to a government agent, and Buena-Lopez offered an
insufficient evidence defense, the court concluded that the jury could
have believed both defendants and still have acquitted Buena-Lopez on
conspiracy charges if it found that Buena-Lopez was merely present during
the narcotics transaction and did not know what was being sold.[177]
Ironically, Buena-Lopez seems to interpret Tootick in such a
manner as to affirm, rather than reject, the Ramirez-Sherlock line
of decisions. This interpretation is incorrect. The Tootick court
did find that the defenses were mutually exclusive, not just mutually
antagonistic, and that the jury was unable to assess the defendants’ guilt
or innocence individually. However, contrary to the suggestion of above
from Buena-Lopez, the prejudice did not flow automatically from a
finding of mutually exclusive defenses. Rather, the reversible prejudice
found by the Tootick court resulted from the “facts in that case”
and, in particular, the prejudicial events at trial.[178]
Soon
after Buena-Lopez, in United States v. Arias-Villanueva the
court cited both Sherlock and Buena-Lopez for the
proposition that a defendant is entitled to severance where he “show[s]
that acceptance of his codefendant’s defense would preclude his
acquittal.”[179]
Here, instead, the court upheld the trial court’s denial of severance
because “Orantes-Arriaga’s and his [Page 29]
codefendant’s defenses were not irreconcilable—both could
have been either acquitted or convicted based on their theories of
defense.”[180]
Tootick was never mentioned.[181] The
Buena-Lopez and Arias-Villanueva decisions both came after the
Supreme Court’s decision in Zafiro, which may have had a dampening
effect on use of language from Ramirez and Sherlock
presupposing a mandatory severance rule.[182]
However, the United States v. Koon case, decided one year later,
showed no such forbearance.[183]
Koon
was an appeal by officers involved in the notorious 1991 beating of
African-American motorist Rodney King.[184]
The appellants, who defended based on no use of excessive force, argued
that a fellow officer, Briseno, had offered a mutually antagonistic
defense in the separate state-court trial.[185]
In the separate trial, the officer testified that he tried to prevent his
fellow officers’ use of excessive force.[186]
The court found antagonism, but not irreconcilability.[187]
It found that the jury could have believed Briseno’s testimony and also
acquitted the other officers if the jury decided that the force used
either was not excessive or not willful.[188]
The court cited Sherlock in declaring that severance based on
“‘mutually antagonistic’ or ‘irreconcilable’ defenses” was appropriate
only if: (1) the acceptance of one party’s defense
[Page 30] would preclude acquittal of the other party,
and (2) the cores of the defenses conflicted such that the jury could only
believe one or the other, not both.[189] Another roughly contemporaneous, unpublished decision, United States v. Fleener, similarly reveals judicial uncertainty as to how to handle mutually exclusive defenses.[190] In Fleener, two brothers were convicted of bank robbery.[191] Each accused the other of being the one who went into the bank and robbed it.[192] Thus, facially, the defenses were mutually exclusive; believing one defendant required convicting the other. On appeal, the defendants claimed severance was required because their defenses were “‘mutually antagonistic.’”[193] However, the Fleener court cited language from Koon in interpreting “mutually antagonistic as that phrase is ordinarily understood” to mean that “‘acceptance of one party’s defense will preclude acquittal of the other party.’”[194] On that basis, the court interpreted Zafiro’s holding, “‘[m]utually antagonistic defenses are not prejudicial per se,’” to mean that mutually exclusive defenses are not prejudicial per se, which was not necessarily what the Supreme Court meant in Zafiro.[195] Notably, the Fleener court was well aware of Tootick and discussed the “proper and timely” instructions to neutralize prejudice in finding that the trial judge in Fleener had done so, but it did not mention it with regard to antagonistic defenses.[196 [Page 31]
The Tootick holding, rejecting a per
se rule on irreconcilable defenses, was more forcefully cast aside in
United States v. Throckmorton.[197]
In this drug smuggling case, the court held that a defense offered by a
government informant against a codefendant was not irreconcilable at its
core with that second defendant’s insufficiency of evidence defense.[198]
The court reasoned that there was nothing to suggest that the
testimony implicating the codefendant would not have been similarly
available at a severed trial.[199]
Ignoring Tootick, the court declared, “[t]o be entitled to
severance on the basis of mutually antagonistic defenses, a defendant must
show that the core of the codefendant’s defense is so irreconcilable with
the core of his own defense that the acceptance of the codefendant’s
theory by the jury precludes acquittal of the defendant.”[200]
The Throckmorton panel cited Sherlock for this proposition,
without noting that the cited language was actually a quote from
Romanello.[201]
The Throckmorton panel also subtly
but significantly changed the language of Romanello.[202]
While Berkowitz, the original Fifth Circuit decision defining
mutually exclusive defenses in terms of “cores,” had defined these “cores”
in terms of testimony, Romanello ignored that limitation. As
discussed by the Romanello dissent, the resulting broader
definition allowed any theories or inferences counsel might propose to
qualify as a “core” of the defense.[203]
Throckmorton added “theory” directly to its definition. By adding
“theory” to the definition of core defenses, the Throckmorton court
explicitly allowed for the broad definition that the dissent
[Page 32] in Romanello decried. Due
to the addition of the term “theory,” a determination of irreconcilability
shifted from one that hinged on the jury’s acceptance of evidence
presented to one that hinged on a jury’s acceptance of a codefendant’s
“theory” of defense.[204]
Like Ramirez and Sherlock, Throckmorton’s statement
regarding mutually antagonistic defenses was not a holding.
Throckmorton’s
construction of the severance rule has been accepted and cited in
subsequent decisions. The most notable of the cases that follow
Throckmorton is United States v. Cruz.[205]
In Cruz, a case involving the possession of methamphetamine and
conspiracy to distribute, the court found a defense based on reasonable
doubt and lack of credibility of government witnesses to be antagonistic
but not irreconcilable with an entrapment defense.[206]
It offered the quote from Throckmorton as the Ninth Circuit’s rule
for when a “defendant is entitled to severance based upon mutually
antagonistic defenses.”[207]
Although it did not cite Buena-Lopez for this particular
proposition, the Cruz court followed the Buena-Lopez court’s
reasoning in distinguishing Tootick. Like Buena-Lopez, the
Cruz court stated that in Tootick, “the court
[Page 33] concluded that severance was
necessary because ‘[e]ach defense theory contradicted the other in such a
way that the acquittal of one necessitates the conviction of the other.’”[208]
Although the quotation from Tootick is accurate, it lacks proper
context. The court in Cruz used this quotation to imply that the
severance question in Tootick was resolved based solely on a
finding of mutual exclusivity—a per se rule. The Cruz court failed
to mention either the extensive second-prosecutorial excesses leading to
manifest prejudice or the Tootick court’s explicit refusal to
create a per se rule on severance.[209]
VIII. An Effort At Reconciliation?
United States v. Mayfield
In United States v. Mayfield, the
court attempted to reconcile Sherlock, Tootick, and
Throckmorton.[210]
The Mayfield court drew extensively upon all three decisions in
working through the implications of mutually exclusive defenses at
considerable length. Given the irreconcilable differences between these
cases on the issue of mandatory severance for mutually exclusive defenses,
the outcome was bound to be problematic in spots.
In Mayfield, law enforcement officers
executed a search warrant at an apartment and found defendant Gilbert
inside and defendant Mayfield leaving through the back door.[211]
Rock cocaine and drug paraphernalia were found in the apartment.[212]
Mayfield was found with keys to the apartment; however, the apartment was
rented in the name of Gilbert’s girlfriend and an old phone bill in
Gilbert’s name was found.[213]
When police entered, Gilbert was holding his [Page
34] girlfriend’s infant while allegedly trying to hide traces of
the drugs.[214]
Only Gilbert’s fingerprints were found on the drug paraphernalia.[215]
Upon arrest, Gilbert made a statement identifying the other defendant as
Mayfield, “the main man,” admitting to selling for Mayfield, and stating
that Mayfield had gotten a delivery of drugs that day.[216]
Before, during, and after the subsequent
joint trial, Mayfield repeatedly requested severance that was denied.[217]
Mayfield also objected to the government’s introduction of Gilbert’s
statement and alternately requested redaction of his name and a proper
limiting instruction to the jury.[218]
The court granted the latter request.[219]
However, the government elicited from a testifying police officer that
Gilbert was helping “an individual” sell cocaine.[220]
On cross-examination of this witness, Gilbert’s counsel further brought
out that Gilbert had referred to a “main man,” that that male individual
had gotten a shipment the day of the arrest.[221]
The court never admonished the jury to consider these statements only with
regard to Gilbert.[222]
Gilbert’s counsel also disregarded a pretrial agreement not to discuss the
basis for the search warrant. The lawyer for Gilbert elicited testimony
that a confidential informant had notified authorities that Mayfield would
be receiving a drug shipment, that Mayfield’s name and not Gilbert’s was
on the search warrant, and that the police officer testifying recognized
Mayfield.[223]
Upon Mayfield’s objection, the court gave a limiting instruction that the
witness’s testimony [Page 35] only should be
considered regarding the officer’s state of mind, not its truth.[224]
Both defendants were convicted and sentenced to lengthy terms.[225]
On appeal, the Ninth Circuit reversed the
trial court.[226]
The court offered three grounds for their decision: (1) mutually exclusive
defenses making denial of severance reversible error; (2) denial of
Confrontation Clause rights under Bruton and its progeny; and (3)
manifestly prejudicial, non-harmless error.[227]
The court also offered a prolonged discussion distinguishing Zafiro
from the facts at hand.[228]
Regarding mutually exclusive defenses, the
court reasoned that although Gilbert’s defense was mere presence at the
apartment, the facts of the case precluded a mere presence defense and
instead created a situation where belief in one defendant precluded
acquittal of the other.[229]
Several facts weighed against the innocence of Gilbert: he admitted
selling drugs for Mayfield; he was most closely linked to the apartment;
he was allegedly seen hiding evidence; and he had left fingerprints on the
drug paraphernalia. Due to the strength of this evidence, Gilbert’s only
viable defense was to try to pin all blame for possession and control of
the drugs on Mayfield.[230]
Thus, for Gilbert to be acquitted, the jury would have to both believe him
and disbelieve (and convict) Mayfield.[231]
The court further noted, “Gilbert’s counsel frankly told the district
court that her defense was to prosecute Mayfield, which should have put
the district court on notice that it was required to grant Mayfield’s
severance motions or employ other means of stemming the prejudice flowing
from Gilbert’s mutually exclusive defense.”[232]
As such, the [Page 36] court, citing
Zafiro, concluded, “Mayfield has shown both that he was denied a
specific trial right and that Gilbert’s mutually exclusive defense
prevented the jury from making a reliable judgment about his guilt or
innocence.”[233]
In its discussion of irreconcilable
defenses, the Mayfield court did not make entirely clear whether
such defenses always automatically entitled a defendant to severance, or
whether the details of the facts and defenses in Mayfield made it a
special case. In describing a situation where the acquittal of one
defendant required the conviction of the other, the court offered the
classic definition of mutually exclusive defenses. The Tootick
court had noted the same fundamental property of irreconcilable defenses
before rejecting a per se severance rule.[234]
In Mayfield, the court, quoting Throckmorton, stated, “We
have held that severance should be granted when the defendant ‘shows that
the core of the codefendant’s defense is so irreconcilable with the core
of his own defense that the acceptance of the codefendant’s theory by the
jury precludes acquittal of the defendant’”[235]
If the quote from Throckmorton is merely the definition of mutually
exclusive defenses, as Tootick and the Ramirez-Adler line of
cases would generally agree, then Throckmorton presumes exactly the
per se severance rule that Tootick rejected. In citing and
applying Throckmorton’s (and Sherlock’s) standard,
Mayfield seemingly accepts such a rule.[236]
The Mayfield court further reinforced
the impression that irreconcilable defenses require automatic severance in
drawing extensively on Tootick to discuss how “Gilbert’s mutually
[Page 37] exclusive defense prevented the
jury from making a reliable judgment about Mayfield’s guilt.”[237]
Quoting Tootick at length, the court discussed the
second-prosecutor problem and how mutually exclusive defenses complicate
the jury’s efforts to determine codefendants’ guilt or innocence “on an
individual and independent basis.”[238]
It then declared,
In short, the situation envisioned by
Tootick is precisely what happened here. Gilbert’s counsel used every
opportunity to introduce impermissible evidence against Mayfield, and her
closing argument barely even addressed the government’s evidence against
her client and instead focused on convincing the jury that Mayfield was
the guilty party, not her client.[239]
Yet, in finding the “situation envisioned by
Tootick,” the Mayfield court was in fact only finding a case
of mutually exclusive defenses. The quotation from Tootick about
the jury’s problems assessing guilt or innocence on an independent basis
appears there in the context of a discussion of prejudice in general, not
just mutually exclusive defenses.[240]
The Tootick court’s later rejection of a per se rule against
joinder of irreconcilable defenses makes clear that the panel held that
such defenses were not prejudicial per se.[241]
The other language from Tootick quoted in Mayfield, which
does specifically concern the potential prejudicial dangers of joint
trials involving mutually exclusive defenses, including the
second-prosecutor problem, is followed immediately in Tootick by
the explicit rejection of a per se severance rule.[242]
Moreover, the Tootick court accepted second-prosecutorialism as
basically inevitable in a trial involving “[d]efendants who accuse each
other.”[243]
Thus, Tootick makes it clear that even the presence of
second-prosecutorial activity using cross-examination and closing
statements to [Page 38] emphasize the guilt
of a codefendant does not, in itself, create manifest prejudice
necessitating severance.[244]
Elsewhere, the Mayfield court
expressed a clear awareness that Tootick rejected a per se
severance rule. In discussing and distinguishing Zafiro regarding
conflicting defenses, the court observed,
[W]e have recognized that sometimes defenses
can rise to the level of being “mutually exclusive.” As we stated in
Sherlock, “[a]ntagonism between defenses is insufficient [to mandate
severance]; the defenses must be antagonistic to the point of being
irreconcilable and mutually exclusive.” Even then, this circuit prior to
Zafiro “declin[ed] to adopt a per se rule against joinder.”
Instead, “defendants must demonstrate that clear and manifest prejudice
did in fact occur.”[245]
Ironically, the Mayfield majority
juxtaposed the irreconcilable Tootick and Ramirez-Sherlock
language without noting Tootick’s explicit rejection of the
Ramirez-Sherlock “holding.”
Even in the discussion of mutually exclusive
defenses noted above, Mayfield includes language suggesting that
the prejudicial risks of such defenses could be addressed satisfactorily
by means other than severance. The footnote where the court observes that
Gilbert’s counsel’s forewarning of acute second-prosecutorialism put the
court on notice that it must either sever or “employ other means of
stemming the prejudice flowing from Gilbert’s mutually exclusive defense”
indicates that other such suitable means exist.[246]
This comment parallels the Tootick court’s reasoning that
notwithstanding the mutually exclusive defenses there, any resulting
prejudice might have been cured by additional jury instructions and more
active control of counsel’s second-prosecutorial antics.[247]
It also dovetails with Zafiro’s holding that “Rule 14 does not
require severance even if prejudice is shown”; rather, it leaves the
tailoring of relief to [Page 39] be granted,
if any, to the “district court’s sound discretion,” which indicates that
the tailor has more tools than just scissors.[248]
In the later discussion of Zafiro, the Mayfield court drew
extensively on Tootick regarding the district judge’s obligation to
“‘actively supervise the trial and, if necessary, reiterate instructions
in the wake of prejudicial events,’” faulting the judge for the
“erroneously admitted evidence” and declaring, “The district court should
have sternly admonished the jury immediately after Gilbert’s inflammatory
closing argument.”[249]
The Mayfield court also noted not
just that the defenses were irreconcilable, but that “Gilbert’s counsel
used every opportunity to introduce impermissible evidence against
Mayfield.”[250]
In addition to mutually exclusive defenses, Mayfield involved clear
second-prosecutorial abuses that went uncured and uncontrolled, and these
were the primary source of the demonstrated prejudice that compromised
Mayfield’s trial rights. So the section on mutually exclusive defenses
actually runs together with the section on denial of confrontation rights
and the serious and unmitigated prejudice from improper admission and use
of evidence involving the search warrant, confidential informant, and
Gilbert’s statement.[251]
Mayfield
remains slightly mysterious. The overall impact of the decision is clear
enough: severance and retrial is proper where a defendant faces mutually
exclusive defenses, codefendant’s counsel extensively elicits inadmissible
evidence to engage in aggressive and [Page 40]
abusive second-prosecutorial excesses, the court takes insufficient
steps to control such abuses or admonish the jury, and clear prejudice
results. Like De Luna, the decision rests on multiple interwoven
factors. Yet the decision is somewhat less clear on how exactly to handle
mutually exclusive defenses in isolation from the other factors, for
unlike De Luna, the structure of the decision gives the impression
that both mutually exclusive defenses and Confrontation Clause violations
might constitute separate, independently sufficient grounds for reversal
in themselves. Mayfield approvingly cites and applies
Throckmorton’s language, in effect offering a mandatory severance rule
for mutually exclusive defenses even as it notes Tootick’s explicit
rejection of such a rule.[252]
IX. Return To The Per Se Severance
Rule: Mayfield’s Aftermath
Whatever the Mayfield court may have
intended to say about mutually exclusive defenses, subsequent decisions
took its language as affirming the mandatory severance rule offered in
Throckmorton. In a 1999 telemarketing fraud case, the court, finding
no irreconcilability, quoted Mayfield quoting Throckmorton
in declaring that a criminal defendant is entitled to a separate trial on
the ground of mutually antagonistic defenses only if the Throckmorton
standard regarding “cores” and “theories” of defenses is satisfied.[253]
Thereafter, an unpublished decision in a drug-trafficking conspiracy case
found no conflict of defenses and cited the 1999 telemarketing case for
the proposition that “[g]enerally, a defendant is entitled to a severance
by demonstrating that his defense is mutually antagonistic to another
defendant’s [Page 41] defense.”[254]
Another unpublished decision finding no irreconcilability cited
Mayfield for the Throckmorton language regarding the cores of
the defenses.[255]
It then cited Tootick as holding that “[s]everance is necessary
when ‘[e]ach defense theory contradicts the other in such a way that the
acquittal of one necessitates the conviction of the other’”—a per se rule
against joinder.[256]
The most recent Ninth Circuit decision to
address mutually exclusive defenses, like Mayfield, cites to
Sherlock, Tootick, and Throckmorton. In United
States v. Angwin, two codefendants, Angwin and Khamis, were stopped in
their motorhome at a California checkpoint north of the United
States-Mexico border.[257]
Immigration agents searched the motorhome and found fourteen Mexican
citizens who had entered the United States illegally.[258]
At trial, Angwin testified that he had acted under duress after the
illegal passengers threatened him and entered the motorhome against his
will at a rest stop in Mexico.[259]
Khamis claimed ignorance.[260]
Both were convicted of trafficking in illegal aliens.[261]
On appeal, Angwin argued that the cases should have been severed based on
antagonistic defenses.[262]
The court noted that courts have regularly rejected the argument that a
defense based on ignorance is irreconcilable with a defense based on a
lack of guilty intent, and it agreed with them.[263]
As to mandatory severance, the court observed,
To warrant severance on the basis of
antagonistic defenses, codefendants must show that their defenses are
irreconcilable and mutually exclusive. Defenses
[Page 42] are mutually exclusive when ‘acquittal of one codefendant
would necessarily call for the conviction of the other.’ Even when
defendants present antagonistic defenses, such defenses “are not
prejudicial per se.”[264]
The Angwin court’s use of the verb
“warrant” is interesting, because it might (or might not) be seen as
having a weaker meaning than the other verbs used in similar contexts over
the years: “mandate,” “require,” “necessitate,” “entitle,” and so on.
Perhaps the use of “warrant” shows a degree of hedging and uncertainty,
implying that severance is merely optional and advisable in such
circumstances, rather than mandatory. Regardless, the decision falls into
the same trap as most earlier decisions—missing both Tootick’s
explicit rejection of the Ramirez-Sherlock “holding” and
Throckmorton’s similar oversight in reviving Sherlock as if
Tootick had never happened. Whether or not the verb is softened, this
trio of cases remains problematic, and Tootick remains
irreconcilable with both Sherlock and Throckmorton without
some further help or clarification from the Ninth Circuit. X. Conclusion
It is easy to understand how the mandatory
severance rule for mutually exclusive defenses spread so rapidly through
the case law of the Ninth and other Circuits. Busy judges and clerks with
crowded dockets, seeking a clear, straightforward rule to help define the
boundaries of a relatively unfamiliar issue arising only infrequently,
eagerly seized upon language that provided such conceptual orientation,
usually before proceeding to reject defendants’ claims of mutual
exclusivity. Earlier decisions in the Ninth Circuit had held mutual
antagonism of defenses alone to be insufficient to require severance.[265]
But this holding naturally begged the question: what would require
severance? The per se severance rule that the Ramirez court
imported from the Fifth and Seventh Circuits seemed to provide a clear
answer. In this way, a [Page 43] rule not
properly grounded in any holding was able to jump from case to case and
from circuit to circuit, spreading like a computer virus, or an
unsubstantiated rumor. Although the Tootick court took great pains
to think through the issue of mutual exclusivity and tried to stop the per
se severance rule’s metastasis, their thoughtful, complex discussion
apparently could not compete with the straightforward ease and simplicity
of the Ramirez rule.
Ease and simplicity aside, in order to make
their case law regarding mutually exclusive defenses consistent, the Ninth
Circuit must either reaffirm Tootick’s holding rejecting a per se
rule against joinder or else formally overrule Tootick on that
point and offer a proper, formal holding for the rule, whether in its
Ramirez, Throckmorton, or other manifestation. In so doing,
the Ninth Circuit might agree with various earlier Ninth Circuit and other
circuit decisions that the clarity of the per se rule is too useful to
give up. In particular, a properly grounded rule following the
Throckmorton construction that irreconcilable theories of defense
mandate severance could help trial court judges by allowing them to sever
defendants before trial, rather than having to sit through part or all of
a joint trial until a manifestly and incurably prejudicial event forces
severance. Yet such a theory-based rule potentially could also allow
defendants to game the system and gain severance by pleading
irreconcilable theories, regardless of their supporting evidence.[266] By contrast, both th |
