Irreconcilable Differences: The Ninth Circuit’s Conflicting Case Law Regarding Mutually Exclusive Defenses of Criminal Codefendants

by Scott Hamilton Dewey*

[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]
I.            Introduction

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]
II.              Development Of The Doctrine of Mutually Exclusive Defenses: United States v. DeLuna

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]
III.              Foreign Circuit Decisions Used By The Ninth Circuit In Support Of A Mandatory Severance Rule

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]
V.        The Ninth Circuit’s Explicit Rejection Of A Per Se Severance Rule: United States v. Tootick[151]

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]
VII.              Bypassing Tootick: United States v. Throckmorton

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 the system envisioned under Tootick and the current system used in practice—severance only after manifest prejudice has occurred—are necessarily retroactive, forcing district judges to do damage control after problems have arisen rather than avoid problems by severing preemptively.  A district judge thus is in the uncomfortable position not only of having to sit through all or part of a trial to see whether serious actual prejudice appears, but also of having to wait and wonder whether the Ninth Circuit will see such prejudice where [Page 44] she did not.  Under Tootick, such a judge additionally will face reversal if an appellate panel finds the jury instructions or other means short of severance that she used to cure prejudice insufficient.  Given the relative rarity of truly irreconcilable defenses, this may not be an unduly great burden for district judges to bear.  Yet, if the Ninth Circuit were to reaffirm or extend Tootick, it would be helpful if the court would build upon the commentary in Tootick and Mayfield.  This would shed additional light on jury instructions and other means of curing prejudice without severance, how and when to use them properly, and what sorts of prejudicial events they can cure. 

Given the rarity of truly irreconcilable defenses, efficiency would seem to tilt in favor of the approach in Tootick.  With a clear understanding that cases generally may go ahead to completion even where there is a significant likelihood of mutually exclusive defenses, trial judges would be freed, in large measure, from worrying unnecessarily over what are, in the end, usually only nuisance arguments for severance on grounds of antagonistic defenses.  In our criminal justice system, with its steadfast reliance on juries and jury instructions, trial judges have the tools to control most second-prosecutorial abuses just as we expect them to control actual prosecutors.  Tootick’s focus on actual prejudice, rather than on theoretical prejudice, also better fits the reality of court trials.  Under this common-sense standard, for instance, if the evidence against a codefendant is overwhelming, then the judicial process would not be derailed, nor a new trial required, simply because a few arguable instances of second-prosecutorial excess went without sufficient curative measures.  Cases that involve both truly irreconcilable defenses and incurable, compelling actual prejudice might still occur, but these would be rare indeed.

Whether the Ninth Circuit follows the Tootick approach or the Ramirez-Sherlock- Throckmorton approach, it should follow the reasoning in Berkowitz and the Romanello dissent [Page 45] by clarifying or overruling the “theory” language in Throckmorton to make it clear that irreconcilability in the cores of defenses will be measured by evidence proffered, not mere theory or rhetoric.  Since we are chiefly concerned with avoidance of actual prejudice, a finding of a strong risk of such prejudice should depend on what counsel can prove, not just what they can dream up.  Moreover, evidence, unlike loose lawyer-talk, cannot properly be cured by instructions and admonitions.  A clear evidence-based standard, together with a requirement of true irreconcilability, would tend to keep cases of reversible error due to failure to sever quite rare even under a mandatory severance regime.

Whichever path the Ninth Circuit might choose to reconcile its current irreconcilable case law regarding mutually exclusive defenses, conscientious district and appellate judges in all the circuits that share the Ninth Circuit’s uncertain mooring regarding the issue likely would benefit from additional guidance regarding prejudice from mutually exclusive defenses, how to cure it if possible, and generally how to exercise the “district court’s sound discretion” to which the Supreme Court left the issue in Zafiro.[267]