Irreconcilable Differences: The Ninth
Circuit’s Conflicting Case Law Regarding Mutually Exclusive Defenses of
by Scott Hamilton Dewey*
“‘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
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
States v. Romanello,
726 F.2d 173, 174 (5th Cir. 1984)
Dante, The Inferno, Canto XXV,
7, lines 46-48, 58-60 (J. Ciardi, transl.))
trials of criminal defendants are integral to the federal criminal justice
As Justice Scalia observed in Richardson v. Marsh, “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
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.”
Both the Supreme Court and the Circuit Courts of Appeal generally
favor such joint trials.
joint trials also pose heightened risks of prejudice to defendants.
For this reason, Rule 14 allows severance even if defendants are
properly joined under Rule 8(b).
Thus, Rules 8(b) and 14 pull in opposite directions to strike a balance
between judicial efficiency and the risk of prejudice.
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
[Page 3] confession (the Bruton problem);
(2) the denial of Confrontation Clause rights arising out of one
defendant’s inability to cross-examine another’s witnesses;
(3) prejudice from one defendant’s manifest guilt rubbing off on another
when there is a great disparity in the weight of evidence between
(4) prejudice from a defendant in a joint trial being denied access to
“essential exculpatory evidence” that would have been available in a
and (5) other factors that might prevent a jury from determining the guilt
or innocence of defendants on an individual basis.”
conflicting defenses are yet another factor posing risk of prejudice in
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.
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.
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.
the more familiar Bruton problem, for which the Supreme Court over
the years has developed a fairly clear set of instructions to trial courts,
the problem of mutually antagonistic defenses has been addressed only
In Zafiro v. United States, the Supreme Court considered the
issue of mutually antagonistic defenses.
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.
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
The Court in Zafiro did not distinguish
“mutually antagonistic” and “irreconcilable” defenses, and did not
even mention “mutually exclusive” defenses.
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.
this is not a significant problem. Instances
of truly irreconcilable defenses are
relatively rare, as Zafiro indicates.
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.
case law in the Ninth Circuit is especially problematic.
In 1991, in United States v. Tootick,
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
Subsequent decisions have mostly overlooked Tootick, and these
more recent decisions repeatedly have cited the earlier per se rule rejected
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.
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.
De Luna v. United States, police saw one of two
codefendants throw a package containing drugs out the window of a moving
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.
He claimed that the other defendant, De Luna, had tossed it to him
and ordered him to throw it out.
Each defendant blamed the other as the culprit.
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.
for the appellate panel, Judge Wisdom offered a lengthy reflection on the
history, purpose, and legal evolution of the privilege against
Judge Wisdom drew on various Supreme Court decisions and held that
the Fifth Amendment protection must be [Page 7] broadly construed.
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.
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
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.
Therefore, the court held that the defendants needed to be tried
individually to “see the face of Justice.”
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
and the reference to a “head-on collision” between the rights of the
defendants, 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
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.
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.
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
III. Foreign Circuit Decisions Used By The Ninth Circuit In Support Of A Mandatory Severance Rule
proclaiming a mandatory severance rule in cases with mutually exclusive
defense, the Ninth Circuit mistakenly relied on dicta in Fifth and Seventh
The cases initially cited by the Ninth Circuit--United States v.
United States v. Marable,
and United States v. Romanello
from the Fifth Circuit, and United States v. Ziperstein
from the Seventh--also incorrectly applied dicta as rules from earlier
cases, particularly United States v. Kahn.
A. Kahn and its
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.
Kahn’s lawyers argued on appeal that the trial court’s refusal to
sever their cases from Kahn’s was prejudicial error.
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.
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.
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.
In a lengthy reflection on the risks of prejudice in conspiracy
trials, the Kahn court rejected the codefendants’ severance
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
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
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.”
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.”
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
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
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.
the end, Kahn primarily stands for the principle that severance will
be granted only on a “strong showing of prejudice.”
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.”
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.
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
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. Marable involved a
conspiracy to sell heroin.
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.
He asserted that the trial court erred in denying his motion for
severance on various grounds, including inconsistent defenses.
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.
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.
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
Salomon, the court
cited Marable for the rule that mutually exclusive defenses mandate
In Salomon, two codefendants were convicted of possessing PCP
with [Page 13] intent to distribute.
After the prosecution rested, Salomon presented no evidence.
Instead, he moved for acquittal based on insufficient evidence.
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.
The court reversed Salomon’s conviction, holding that he suffered
incurable prejudice from Wood’s testimony about earlier joint drug
dealings that implicated Salomon.
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.
It held that a codefendant’s reliance on an entrapment defense, in
itself, did not justify reversing the trial court.
In its holding, the Salomon court only cited Marable
for the rule that mutually exclusive defenses mandate severance.
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
2. Seventh Circuit cases based on Kahn
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.
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.
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.
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.
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.”
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.
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
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
Ninth Circuit also applied a later Fifth Circuit decision, United States
directly and indirectly to support a mandatory severance rule.
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.
1. Foundations of a per se severance rule
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
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.”
Crawford thus represents a rare case of true mutual
exclusivity -- at least one of the defendants must be guilty.
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.”
The trial court had overruled repeated motions for severance even
after “the inevitability of prejudice should have become apparent.”
Although the court found strong evidence of each defendant’s
individual guilt, “this joint trial was intrinsically prejudicial.”
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.
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.
United States v. Berkowitz, the Fifth Circuit conducted its most careful,
thoughtful analysis of the considerations involved in mutually exclusive
Ultimately, however, this analysis relied on the dicta contained in Crawford.
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.
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.’”
arriving at this definition of mutually exclusive defenses, Berkowitz
synthesized various earlier Fifth Circuit decisions regarding what did or
did not constitute irreconcilability.
Like most other decisions considering the issue of mutually exclusive
defenses, Berkowitz found no significant conflict between the
codefendants’ noninvolvement defenses.
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.
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.
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
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.
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.
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.
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
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
5. he suffers compelling prejudice as a result.
[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.
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
the Romanello panel was sharply divided.
Judge Gee offered a stinging and cogent dissent.
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,’”
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.
Referring to an earlier decision,
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.
That Romanello and Mendez were the robbers was only an inference
offered by Vertucci’s counsel.
Thus, Judge Gee disagreed with the other two judges as to how to
define the core of a defense.
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
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.
Like these, at their core the defenses of Vertucci, Romanello and
Mendez are quite consistent.”
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.
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,
for that rule.
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.
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.
Emergence Of A Per Se Severance Rule For Mutually Exclusive Defenses
in Ninth Circuit Case Law: Ramirez and Sherlock
suggesting that mutually exclusive defenses mandated severance first
appeared in Ninth Circuit case law in United States v. Ramirez.
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.
Two codefendants entered into plea agreements and testified for the
government; another codefendant was tried and acquitted.
Ramirez was convicted as the instigator and financier of the criminal
scheme; Reynolds was [Page 22] convicted of foreign transportation of stolen aircraft.
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.
Among other arguments on appeal, Ramirez contended that his defense
was irreconcilable with that of Reynolds, who admitted the acts alleged.
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.
Also, Reynolds, who took the stand in his own defense, repeatedly
denied Ramirez’s complicity.
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.
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
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
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
The Ramirez “holding” also appeared in various unpublished
decisions of the early 1990s finding no mutual exclusivity.
1989 decision in United States v. Sherlock
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.
The Sherlock court drew on Romanello, a post-Ramirez
Fifth Circuit decision, for support on mandatory severance of irreconcilable
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
Sherlock, defendants Sherlock and Charley were convicted of assault
with intent to commit rape on an Indian Reservation.
They allegedly had coerced intercourse with two young women from off
the reservation during a beer-drinking party on Navajo land in Arizona.
The court reversed Sherlock’s conviction on the ground of
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.
The court rejected all other arguments, including one based on
antagonistic defenses. Each
defendant argued that he had not performed the alleged act.
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.
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.
Thus, Sherlock, like Ramirez, was another decision
holding mutual exclusivity absent, not deciding what to do with mutual
exclusivity if present.
V. The Ninth Circuit’s Explicit Rejection Of A Per Se Severance Rule: United States v. 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.
The victim survived to testify.
Each defendant’s sole defense was the guilt of the other, since
there was no evidence that any other person was present.
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.
Tootick did not testify, but his counsel claimed that he was heavily
intoxicated and was passed out or asleep during the entire episode.
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.
Tootick panel found the defenses to be truly irreconcilable:
acquittal of one defendant necessitated conviction of the other.
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
Despite holding that the defenses presented by Tootick and Frank were
truly irreconcilable, the court rejected automatic severance of the
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.
court discussed the prejudicial risks of antagonistic or irreconcilable
defenses at length, noting the inevitability of second-prosecutorialism
whenever codefendants blamed each other.
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.”
court found clear and manifest prejudice in Tootick.
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, and for failing to take
steps to cure prejudice at other points in the trial.
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.
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.
[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.
VI. Reemergence Of The Per Se Severance Rule: Post-Tootick Decisions
rule against the per se severance of irreconcilable defenses was largely
Starting with United States v. Hernandez, subsequent Ninth
Circuit opinions chipped away at the Tootick holding.
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
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.
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.
The Buena-Lopez court even cited it before it moved on to
distinguish the Tootick opinion.
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.’
The court in Buena-Lopez found no such mutual
antagonism or inability of the jury to assess the guilt or innocence of the
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.
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
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.”
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.”
Tootick was never mentioned.
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.
However, the United States v. Koon case, decided one year
later, showed no such forbearance.
was an appeal by officers involved in the notorious 1991 beating of
African-American motorist Rodney King.
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.
In the separate trial, the officer testified that he tried to prevent
his fellow officers’ use of excessive force.
The court found antagonism, but not irreconcilability.
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.
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.
Another roughly contemporaneous, unpublished decision, United States v. Fleener, similarly reveals judicial uncertainty as to how to handle mutually exclusive defenses. In Fleener, two brothers were convicted of bank robbery. Each accused the other of being the one who went into the bank and robbed it. 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.’” 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.’” 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. 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
VII. Bypassing Tootick: United States v. Throckmorton
Tootick holding, rejecting a per se rule on irreconcilable defenses,
was more forcefully cast aside in United States v. Throckmorton.
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.
court reasoned that there was nothing to suggest that the testimony
implicating the codefendant would not have been similarly available at a
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.”
The Throckmorton panel cited Sherlock for this
proposition, without noting that the cited language was actually a quote
Throckmorton panel also subtly but significantly changed the language
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.
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
Like Ramirez and Sherlock, Throckmorton’s
statement regarding mutually antagonistic defenses was not a holding.
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.
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.
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.”
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.’”
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.
An Effort At Reconciliation? United
States v. Mayfield
United States v. Mayfield, the court attempted to reconcile Sherlock,
Tootick, and Throckmorton.
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.
Mayfield, law enforcement officers executed a search warrant at an
apartment and found defendant Gilbert inside and defendant Mayfield leaving
through the back door.
Rock cocaine and drug paraphernalia were found in the apartment.
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.
When police entered, Gilbert was holding his [Page
34] girlfriend’s infant
while allegedly trying to hide traces of the drugs.
Only Gilbert’s fingerprints were found on the drug paraphernalia.
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.
during, and after the subsequent joint trial, Mayfield repeatedly requested
severance that was denied.
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.
The court granted the latter request.
However, the government elicited from a testifying police officer
that Gilbert was helping “an individual” sell cocaine.
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.
The court never admonished the jury to consider these statements only
with regard to Gilbert.
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.
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.
Both defendants were convicted and sentenced to lengthy terms.
appeal, the Ninth Circuit reversed the trial court.
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.
The court also offered a prolonged discussion distinguishing Zafiro
from the facts at hand.
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.
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
Thus, for Gilbert to be acquitted, the jury would have to both
believe him and disbelieve (and convict) Mayfield.
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.”
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.”
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.
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’”
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.
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.”
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.”
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.
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
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.
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.
Moreover, the Tootick court accepted second-prosecutorialism
as basically inevitable in a trial involving “[d]efendants who accuse each
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.
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.”
Ironically, the Mayfield majority juxtaposed
the irreconcilable Tootick and Ramirez-Sherlock language
without noting Tootick’s explicit rejection of the Ramirez-Sherlock
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.
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.
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
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.”
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.”
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.
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
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.
Return To The Per Se Severance Rule: Mayfield’s Aftermath
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.
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.”
Another unpublished decision finding no irreconcilability cited Mayfield
for the Throckmorton language regarding the cores of the defenses.
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.
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.
Immigration agents searched the motorhome and found fourteen Mexican
citizens who had entered the United States illegally.
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.
Khamis claimed ignorance.
Both were convicted of trafficking in illegal aliens.
On appeal, Angwin argued that the cases should have been severed
based on antagonistic defenses.
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.
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
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.”
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
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.
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
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
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.
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
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.
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
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
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.
* Research Fellow, UCLA School of Law.
 See, e.g., Richardson v. Marsh, 481 U.S. 200, 209-210 (1987); Zafiro v. United States, 506 U.S. 534, 537-38 (1993).
 481 U.S. 200.
 Id. at 210.
 Fed. R. Crim. P. 8(b); Zafiro, 506 U.S. at 537.
 See Zafiro, 506 U.S. at 537-38; Opper v. United States, 348 U.S. 84, 95 (1954).
 Richardson, 481 U.S. at 217 (Stevens, J., dissenting).
 Fed. R. Crim. P. 14(a) provides, “If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires.”
 Bruton v. United States, 391 U.S. 123 (1968); see, e.g., Gray v. Maryland, 523 U.S. 185, 192-93 (1998); United States v. Gillam, 167 F.3d 1273, 1277 (9th Cir. 1999); United States v. Peterson, 140 F.3d 819, 821-22 (9th Cir. 1998).
 See, e.g., United States v. Mayfield, 189 F.3d 895, 901 (9th Cir. 1999).
 See, e.g., United States v. De Rosa, 670 F.2d 889, 898 (9th Cir. 1982), cert. den. sub nom., Bertman v. United States, 459 U.S. 993 (1982); Desantis v. United States, 459 U.S. 1014 (1982); United States v. Donway, 447 F.2d 940, 943 (9th Cir. 1971); United States v. Mardian, 546 F.2d 973, 977-78 (D.C. Cir. 1976).
 Zafiro v. United States, 506 U.S. 534, 539 (1993); United States v. Gay, 567 F.2d 916, 918-20 (9th Cir. 1978); United States v. Kaplan, 554 F.2d 958, 966 (9th Cir. 1977).
 United States v. Tootick, 952 F.2d 1078, 1083 (9th Cir. 1991).
 Id. at 1080-82; United States v. Berkowitz, 662 F.2d 1127, 1132-34 (5th Cir. 1981).
 See, e.g., United States v. Ramirez, 710 F.2d 535, 546 (9th Cir. 1983); United States v. Sherlock, 962 F.2d 1349, 1363 (9th Cir. 1989); Tootick, 952 F.2d at 1081.
 See George J. Cotsirilos & Matthew F. Kennelly, “When Should Birds of a Feather Flock Together?: Problems in Defending Multiple Defendant Prosecutions,” 4 Crim. Just. 2, 4-5 (1990); Hon. Lewis L. Douglass, “Selected Issues in the Trial of a Drug Case,” 162 PLI/Crim 131, 166 (1991).
 See, e.g., United States v. Throckmorton, 87 F.3d 1069, 1072 (9th Cir. 1996); United States v. Romanello, 726 F.2d 173, 177 (5th Cir. 1984); United States v. Ziperstein, 601 F.2d 281, 285 (7th Cir. 1979).
 See generally Bruton v. United States, 391 U.S. 123 (1968); Richardson v. Marsh, 481 U.S. 200 (1987); Gray v. Maryland, 523 U.S. 185 (1998); United States v. Peterson, 140 F.3d 819 (9th Cir. 1998).
 There apparently is relatively little scholarship on the topic of mutually antagonistic defenses, and those sources that address the issue usually do so briefly. The fullest discussion, which includes treatment of irreconcilable defenses in both state and federal courts, is Wade R. Habeek, “Antagonistic Defenses as Ground for Separate Trials of Codefendants in Criminal Cases,” 82 ALR 3d 245 (1978). Also helpful for providing an overview are the Georgetown Law Journal’s Annual Reviews of Criminal Procedure. See, e.g., Richard Vorosmarti, “Joinder and Severance,” 89 Geo. L.J. 1307, 1315 n.935 (2001); Robert Innes, “Joinder and Severance,” 88 Geo. L.J. 1138, 1146 n.942 (2000); David P. Murray, “Joinder and Severance,” 73 Geo. L.J. 455, 462 n.1209 (1984). Further discussion or useful background may be found in Matthew Flannery, “The Availability of Severance Based on the Claim of Antagonistic Defenses: Commonwealth v. Chester, 587 A.2d 1367 (Pa.), cert. denied, 112 S. Ct. 152 and cert. denied, 112 S. Ct. 422 (1991),” 65 Temp. L. Rev. 1025 (1992); James Farrin, “Rethinking Criminal Joinder: An Analysis of the Empirical Research and its Implications for Justice,” 52 L. & Contemp. Probs. 325 (1989); Douglass, 166; Cotsirilos & Kennelly, 4-5.
 506 U.S. 534 (1993).
 Id. at 538.
 Id. at 538-39.
 Id. at 537.
 See also United States v. Mayfield, 189 F.3d 895, 908 (9th Cir. 1999)(Trott, J., dissenting).
 952 F.2d 1078 (9th Cir. 1991).
 Id. at 1083.
 See, e.g., United States v. Throckmorton, 87 F.3d 1069, 1072 (9th Cir. 1996); United States v. Gillam, 167 F.3d 1273, 1276 (9th Cir. 1999); United States v. Hanley, 190 F.3d 1017, 1028 (9th Cir. 1999).
 308 F.2d 140 (5th Cir. 1962).
 Id. at 142.
 Id. at 141.
 Id. at 142-43.
 Id. at 144-54.
 Id. at 150.
 Id. at 151-52.
 Id. at 142, 143.
 Id. at 154.
 Id. at 155.
 Id. at 142.
 Id. at 154.
 Id. at 155-56 (Bell, J., concurring specially) (“It was proper in the defense of Gomez for his counsel to comment upon the fact that he had taken the stand, but it was improper for him to comment upon the fact that de Luna had not taken the stand. . .There is no authority whatever for the proposition that Gomez would in any wise have been deprived of a fair trial if the comments regarding the failure of de Luna to testify had not been made. He had no right to go that far. . . The opinion of the majority will create an intolerable procedural problem.”); see also United States v. Marquez, 319 F. Supp. 1016, 1020 n.11 (S.D.N.Y. 1970) (“The De Luna view generally has not found favor with those courts which have considered it, and at least one Court of Appeals has flatly rejected it.”); United States v. McKinney, 379 F.2d 259, 265 (6th Cir. 1967) (“We agree with the concurring opinion in De Luna . . . to the effect that such comment by the attorney would not be permissible.”); Hayes v. United States, 329 F.2d 209, 221-22 (8th Cir. 1964) (distinguishing De Luna); United States v. De la Cruz Bellinger, 422 F.2d 723, 726-27 (9th Cir. 1970) (noting that De Luna’s declaration of per se rule allowing counsel to comment on nontestifying codefendant’s silence is dicta); United States v. Sandoval, 913 F. Supp. 498, 500-01 (S.D. Tex. 1995).
 In Gurleski v. United States, 405 F.2d 253, 265 (5th Cir. 1968), cert. den., 395 U.S. 981 (1969), the court noted that “[t]rue antagonistic defenses are exemplified in De Luna,” id. at 265, that the “De Luna rule applies only when it is counsel’s duty to make a comment, and a mere desire to do so will not support an incursion on a defendant’s carefully protected right to silence,” id., that a “duty [to comment on a codefendant’s refusal to testify] arises only when the arguments of the codefendants are antagonistic,” id., and that “to demonstrate the innocence of Gomez, it was the duty of his counsel to comment on the failure of cousin De Luna to contradict Gomez’s version of the incident.” Id. The court then described how the Gurleski trial presented no such situation and created no such duty. Id. The court also approvingly cited Hayes, 329 F.2d 209 (8th Cir. 1964), cert. den., 377 U.S. 980, for the proposition that a codefendant had no right to comment on another codefendant’s silence and faced no prejudice when the codefendant desiring to comment would gain no significant benefit from such comment. Id. Thus, Gurleski points out how the issue of mutually exclusive defenses in De Luna is inextricably interwoven with the presumption of a right to comment on a nontestifying codefendant’s silence. If there is no such right, or if the right exists but is never invoked, De Luna has little to say about mutually exclusive defenses in a vacuum. However, in United States v. Crawford, 581 F.2d 489, 491 n.1 (5th Cir. 1978), the court cited Gurleski in noting, “One of the factors that caused this court to require a severance in De Luna. . .has been said to have been the antagonism of the defenses asserted by the codefendants.” Id. at 491 n.1. See generally De Luna, 308 F.2d 140.
 United States v. Ramirez, 710 F.2d 535, 546 (9th Cir. 1983).
 609 F.2d 1172, 1175 (5th Cir. 1980).
 574 F.2d 224, 231 (5th Cir. 1978).
 726 F.2d 173, 177 (5th Cir. 1984).
 601 F.2d 281, 285 (7th Cir. 1979).
 United States v. Kahn, 381 F.2d 824 (7th Cir. 1967).
 Id. at 828.
 Id. at 838.
 Id. at 839-841.
 Id. at 840.
 Id. at 840-41.
 Id. at 841.
 Id. at 839-40.
 Id. at 839.
 Id. at 840 (citing Hayes v. United States, 329 F.2d 209, 221 (8th Cir. 1964), cert. den., 377 U.S. 980 (1964) [distinguishing De Luna]).
 While mutually exclusive defenses often might be inherently prejudicial, sometimes they might not be—as when there is already overwhelming evidence of a codefendant’s guilt from other sources. See Mayfield, 189 F.3d at 909 (Trott, J., dissenting).
 United States v. Marable, 574 F.2d at 226-228 (5th Cir. 1978).
 Id. at 228-229.
 Id. at 228-229.
 Id. at 231.
 381 F.2d at 840.
 Id. at 1175.
 609 F.2d at 1173.
 Id. at 1174.
 Id. at 1174, 1174 fn. 1.
 Id. at 1174-1175.
 Id. at 1175.
 Id. at 1175.
 Id. at 1175.
 United States v. Ziperstein, 601 F.2d at 284-285 (7th Cir. 1979).
 Id. at 285.
 Id. at 285-286.
 Id. at 286. Defense counsel in his opening statement alluded to the deaths of two unindicted co-conspirators who had been murdered, noted that his client would take the stand since “‘an innocent man almost invariably is eager to take the witness stand,’” and intimated that other defendants had attempted to tamper with witnesses. The defendants on appeal also claimed prejudice from testimony elicited by the acquitted defendant that buttressed the government’s case. Id. at 286-287.
 Id. at 285.
 United States v. McPartlin, 595 F.2d 1321 (7th Cir. 1979).
 Ziperstein, 601 F.2d at 285. Note conflation of mutual antagonism with mutual exclusivity.
 726 F.2d 173, 177 (5th Cir. 1984).
 United States v. Sherlock, 962 F.2d 1349, 1363 (9th Cir. 1989, amended in 1992).
 581 F.2d. 489, 491 (5th Cir. 1978).
 Id. at 490.
 Id. at 492.
 The Crawford court's holding overlooks the possibility of a “Rampart”-type defense of blaming the police for planting the weapon based on racism, corruption, or the like, allowing a jury to find both defendants innocent of possession. Judge Clark dissented in Crawford that the mutual finger pointing of each defendant was insufficient to justify severance because there was a third option reconciling the conflicting defenses: joint possession. Id. However, while this presents a third option to a “one must be guilty” situation, it does not break out of the “if the jury believes one, it must convict the other” box.
 Id. at 492. Of course, such finger pointing is a typical feature of any mutually antagonistic defenses, even those not rising to the level of mutual exclusivity. See discussion of mutually exclusive defenses and the second-prosecutor problem in Tootick, 952 F.2d at 1082-83.
 Crawford, 581 F.2d at 492.
 Crawford, 581 F.2d at 491 n.1.
 This is in keeping with De Luna’s conclusion that jury instructions had no chance of curing the prejudice there, see De Luna, 308 F.2d at 154-55, but contrary to the Ninth Circuit’s stronger reliance on the curative power of jury instructions in Tootick and Mayfield (see infra).
 662 F.2d 1127 (5th Cir. 1981).
 Id. at 1134.
Id. (quoting United States v.
Eastwood, 489 F.2d 818, 822 (5th Cir. 1973) (quoting United
States v. Robinson, 432 F.2d 1348, 1351 (D.C. Cir. 1970).).
 Id. at 1133-34.
 Id. at 1134.
 See United States v. Romanello, 726 F.2d 173, 182-83 (5th Cir. 1984) (Gee, J., dissenting).
 See Berkowitz, 662 F.2d 1127; see also Crawford, 581 F.2d at 491.
 See Romanello, 726 F.2d at 177.
 Id. at 175, 177.
 Id. at 177.
 Id. at 181.
 Id. at 176 n.3.
 Id. at 177 n.4.
 Id. at 182-3 (Gee, J., dissenting).
 Id. at 174.
The joint trial of conspiracy defendants was originally deemed useful to prove that the parties planned their crimes together. However, it has become a powerful tool for the government to prove substantive crimes and to cast guilt upon a host of co-defendants. 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. Id. at 174.
 Id. at 182 (Gee, J., dissenting).
 United States v. Berkowitz, 662 F.2d 1127 (5th Cir. 1981).
 Romanello, 726 F.2d at 182 (Gee, J., dissenting) (emphasis in the original).
 Romanello, 726 F.2d at 182-83 (Gee, J., dissenting).
 Id. at 182 (emphasis in original).
 Id. at 183.
 581 F.2d 489 (5th Cir. 1978).
 Romanello, 726 F.2d at 177.
 Id. at 181.
 710 F.2d 535 (9th Cir. 1983).
 Id. at 537-538.
 Id. at 538.
 Id. at 546.
 Id. at 546.
 Id. at 546-547.
 Id. at 546 [quoting United States v. Marable, 574 F.2d 224, 231 (5th Cir. 1978)].
 Id. Notably, Salomon never defines mutual exclusivity as being where acceptance of one defendant’s defense precluding acquittal of the other defendant. 609 F.2d at 1175. In Salomon, which involved one defendant’s entrapment defense and the blaming of another entirely, the court cited earlier holdings that a codefendant’s reliance on an entrapment theory was insufficient to require severance. Id. Rather, the Salomon court found prejudice requiring severance from a codefendant’s implication of Salomon in earlier drug dealings. Id.
 United States v. Gonzales, 749 F.2d 1329, 1333-34 (9th Cir. 1984) (quoting the identical passage from Ramirez and including specific citation to Marable); United States v. Polizzi, 801 F.2d 1543, 1554 (9th Cir. 1986) (“To justify severance on the ground of antagonistic defenses, there must be a showing of ‘mutual exclusivity’—Polizzi’s acquittal had to preclude Matranga’s acquittal”) (citing Ramirez and Gonzales); United States v. Valles-Valencia, 811 F.2d 1232, 1238 (9th Cir. 1987) (citing Ramirez); United States v. Van Cauwenberghe, 827 F.2d 424, 432 (9th Cir. 1987), cert. den., 484 U.S. 1042 (1988) (quoting Ramirez); and United States v. Adler, 879 F.2d 491, 497 (9th Cir. 1988) (“Severance is required when coconspirators’ defenses are mutually exclusive; that is, when acquittal of one defendant necessarily results in conviction of the other.”) (citing Van Cauwenberghe and Ramirez).
 See United States v. Myers, 917 F.2d 29, 1990 WL 161695 (9th Cir. (Nev.)) at **5; United States v. Langarica-Figueroa, 930 F.2d 30, 1991 WL 49681 (9th Cir. (Cal.)) at **1; United States v. Navarro-Lopez, 951 F.2d 364, 1991 WL 268924 (9th Cir. (Cal.)) at **2.
 962 F.2d 1349 (9th Cir. 1989), cert. den. sub nom., Charley v. United States, 506 U.S. 958 (1992), as amended, 1992.
 Id. at 1362-63.
 Id. at 1362-63. See United States v. Romanello, 726 F.2d 173, 177 (5th Cir. 1984).
 Sherlock, 962 F.2d at 1363 (citing Romanello, 726 F.2d at 177).
 Id. at 1352.
 Id. at 1361-62.
 Id. at 1363.
 None of the other circuit cases, cited in Sherlock for other propositions, do any more than cite to Ziperstein from the Seventh Circuit or Romanello and Berkowitz from the Fifth Circuit. Id. at 1362-63.
 952 F.2d 1078 (9th Cir. 1991).
 Id. at 1080.
 Id. at 1081.
 Id. at 1081.
 Id. at 1083-85.
 Id. at 1081.
 Id. at 1082-83.
 Id. at 1083.
 See Id. at 1080-85.
 Id. at 1083-84. Regarding the inherent problems of joint trials with antagonistic defenses and second-prosecutorial blame trading, the Tootick court observed, “Opening statements, as in this case, can become a forum in which gruesome and outlandish tales are told about the exclusive guilt of the ‘other’ defendant. In this case, these claims were not all substantiated by the evidence at trial.” Id. at 1082.
 Id. at 1085.
 Id. at 1085-86 (citations and quotations omitted).
 Id. at 1086.
 Sherlock became the favorite source to cite regarding mandatory severance of mutually exclusive defenses during the years after Tootick and before the 1996 decision in Throckmorton (see infra), perhaps because the Supreme Court denied certiorari and Sherlock reappeared in amended form in 1992.
 952 F.2d 1110, 1116 (9th Cir. 1991). Hernandez followed the Tootick decision by only a week and hardly could have been expected to incorporate its holding.
 987 F.2d 657, 658 (9th Cir. 1993).
 See id. at 660-61.
 Id. at 661.
 Id. at 661.
 The Buena-Lopez court also found no significant second-prosecutorial excesses, contrary to Tootick. Buena-Lopez, 987 F.2d at 661.
 998 F.2d 1491, 1507 (9th Cir. 1993).
 In Arias-Villanueva, the appellant claimed a right to severance based upon mutually exclusive defenses, id. at 1506, unlike Buena-Lopez, where the appellants and court both equated “mutually antagonistic” with “the acquittal of one necessitat[ing] the conviction of the other.” Buena-Lopez, 987 F.2d 661. This is but one example of the all-too-easy terminological confusion resulting from different courts and circuits sometimes using “mutually exclusive” and “mutually antagonistic” to mean the same thing.
 See Buena-Lopez, 987 F.2d at 660 (“In Zafiro, the Supreme Court expressly rejected the argument that severance is always required whenever defendants present mutually antagonistic defenses.”); Arias-Villanueva, 998 F.2d at 1506.
 34 F.3d 1416, 1436 (9th Cir. 1994), aff'd in part and rev'd in part on other grounds, 518 U.S. 81.
 Id. at 1424.
 Id. at 1445.
 Id. at 1436.
 Id. at 1436.
65 F.3d 176, 1995 WL 496825 (9th Cir. (Ariz.))
 Id. at **2-3.
 Id. Interestingly, the Fleener court stated that acceptance of one brother’s defense did not preclude acquittal of the other brother, since the government presented evidence to show that one brother drove the getaway car, such that either brother could be found guilty of bank robbery regardless of who entered the bank. Id. From the information given in the case, this appears to be a non sequitur. Finding both guilty would entail rejection of both defenses and would not change the fact that acceptance of one defense would necessitate rejection of the other.
 Id. at **3.
 87 F.3d 1069, 1072 (9th Cir. 1996).
 Id. at 1072. In so holding, the Throckmorton court appears to contradict the holding in United States v. Johnson, 478 F.2d 1129, 1131-32, 1134 (5th Cir. 1973) (holding, in case involving passing of counterfeit money, that non-presence defense of first defendant was mutually exclusive to government informant defense of second defendant where second defendant actively inculpated first defendant).
 Throckmorton, 87 F.3d at 1072.
 Id.; Sherlock, 962 F.2d 1349, 1363 (9th Cir. 1989).
 Throckmorton, 87 F.3d at 1072; United States v. Romanello, 726 F.2d 173, 182 (5th Cir. 1984).
 Romanello, 726 F.2d at 182 (Gee, J., dissenting).
 This acceptance of “theory” rather than “testimony” raises the question whether a defendant could preemptively demand severance simply by fiat, by proclaiming that his theory of defense would heap all blame on a codefendant, regardless of whether he had any substantive evidence to prove the codefendant’s liability. The Throckmorton court’s finding of insufficient antagonism in the defenses seems to contradict its own loose, “theory”-based standard. Defendant Throckmorton defended on a theory of insufficiency of the evidence and argued that the prosecution did not prove its case. Throckmorton, 87 F.3d at 1072. Defendant Calicchio defended on a theory that he was acting as a government informant. Id. Calicchio aggressively inculpated Throckmorton, and his “testimony was devastating to Throckmorton’s defense.” Id. However, the Throckmorton court reasoned that “[t]hese defenses are not, at their core, irreconcilable,” because even if “the jury found that Calicchio was working for the DEA, it still could have acquitted Throckmorton for lack of evidence.” Id. In other words, notwithstanding that part of Calicchio’s theory was that Throckmorton was guilty, a jury could believe both defendants simultaneously based on evidence. In so reasoning, the Throckmorton court seems to go against its own earlier language and that of Romanello, reverting instead to the “testimony”-based standard of Berkowitz. The Throckmorton court also slightly undercuts its own theory-based per se rule against joinder when it requires that a defendant seeking reversal of a denial of severance “must establish that the prejudice he suffered from the joint trial was so ‘clear, manifest or undue’ that he was denied a fair trial.” Id. at 1071-72. Various subsequent decisions cite Throckmorton for this proposition. See, e.g., Lambright v. Stewart, 191 F.3d 1181, 1185 (9th Cir. 1999); United States v. Tekle, 2002 WL 187157 (9th Cir. (Cal.)), at **1; United States v. Showa, 133 F.3d 930, 1997 WL 801452 (9th Cir. (Cal.)), at **4.
 127 F.3d 791, 799 (9th Cir. 1997).
 Id. at 799-800.
 Id. at 799.
 Id. at 800 (quoting Tootick, 952 F.2d at 1081).
 Id. See also United States v. Showa, 133 F.3d 930, 1997 WL 801452 (9th Cir. (Cal.)), at **4 (finding defenses were not mutually exclusive, distinguishes Tootick and also implies that the decision in Tootick was based solely or primarily on the presence of mutually exclusive defenses); United States v. Wyner, 230 F.3d 1368, 2000 WL 1210150 (9th Cir. (Cal.)) at **2 (“Severance 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.’ [citing Tootick, 952 F.2d at 1081] That is not the situation here.”).
 189 F.3d 895 (9th Cir. 1999).
 Id. at 897.
 Id. at 897-98, 900.
 Id. at 897, 900.
 Id. at 898.
 Id. at 899.
 Id. at 898.
 Id. at 898-99.
 Id. at 899.
 Id. at 907.
 Id. at 899, 900, 906.
 Id. at 903-906.
 Id. at 900.
 Id at 900 n.1.
 Id. at 899.
 United States v. Tootick, 952 F.2d 1078, 1081, 1083 (9th Cir. 1991) (“Mutually exclusive defenses are said to exist when acquittal of one codefendant would necessarily call for the conviction of the other.”) (citing United States v Adler, 879 F.2d 491).
 United States v. Mayfield, 189 F.3d 895, 899 (9th Cir., 1999).
 Id. at 899, 900 (“Gilbert’s defense and Mayfield’s defense were mutually exclusive because ‘the core of the codefendant’s defense is so irreconcilable with the core of [Mayfield’s] own defense that the acceptance of the codefendant’s theory by the jury precludes acquittal of the defendant.’”).
 Id. at 899.
 Id. at 900.
 United States v. Tootick, 952 F.2d 1078, 1082 (9th Cir. 1991).
 Id. at 1083.
 Id. at 1082-83.
 United States v. Mayfield, 189 F.3d 895, 903 (9th Cir., 1999).
 Id. at 900 n.1.
 Tootick, 952 F.2d at 1083-85.
 Zafiro v. United States, 506 U.S. 534, 538-39 (1993).
 Mayfield, 189 F.3d at 905. Further on, the Mayfield court reaffirms this point even more vigorously:
As indicated by Tootick and Sherlock, the district court had a duty to police the tactics of Gilbert’s counsel, whose goal was to secure an acquittal for her client by proving Mayfield’s guilt. . . . Even the government recognized the risk of prejudice and accordingly objected to some of Gilbert’s counsel’s tactics out of fear of ‘run[ning] into mistrial territory. Under these circumstances, the district court abused its discretion by failing to sever or use more rigorous and timely jury instructions to mitigate the prejudice.
Id. at 906.
 Id. at 900.
 See id. at 901-03. The evidence from Gilbert’s statement regarding “an individual,” the “main man,” and related points also constituted a Bruton violation under the standards for acceptable redaction of a codefendant’s confession developed in Richardson v. Marsh and Gray v. Maryland. See Gray, 523 U.S. 185, 191-92. (1998); see also Richardson, 481 U.S. 200 (1987).
 Judge Trott vigorously dissented in Mayfield, arguing that the core of the defenses—presence without possession (Gilbert) as against non-presence without possession (Mayfield) were not irreconcilable, and that because there was overwhelming evidence of Mayfield’s guilt, the antagonism of the defenses caused Mayfield no prejudice. See Mayfield, 189 F.3d at 908-09 (Trott, J., dissenting).
 United States v. Hanley, 190 F.3d 1017, 1028 (9th Cir. 1999).
 United States v. Nunez-Hernandez, 221 F.3d 1349, 2000 WL 679256 (9th Cir. (Mont.). Again, note the conflation of mutual antagonism with mutual exclusivity.
 United States v. Wyner, 230 F.3d 1368, 2000 WL 1210150, **2 (9th Cir. (Cal.).
 271 F.3d 786, 792-93 (9th Cir. 2001).
 Id. at 793.
 Id. at 795.
 Id. at 794.
 Id. at 794-795.
 Id. at 795.
 Id. at 795.
 See, e.g., United States v. Brady, 579 F.2d 1121, 1128 (9th Cir. 1978), cert. den., 439 U.S. 1074 (1979).
 See supra note 210.
 506 U.S. at 539.