*2 (Dеc. night approximately At 6:30 TATE, GOLDBERG, Before GEE manager 3), asked an Air France Judges. Circuit the storeroom. Vertucci removed open parked loaded into a van bags them GOLDBERG, Judge: Circuit drove off. the terminal. Vertucci outside ar- a lizard forward Vertucci’s counsel would darting ... I saw come Later at gold transferring itself great gue on six taloned feet and fasten that Vertucci was Longhin like terminal from which to a fused to another [T]hey [fellow soul].... wax, the next together planned depart hot their colors ran and Farneda argue that ap- neither monster day. until wretch nor 46-48, Ciardi, transl.). 7, Dante, Inferno, XXV, (J. Bolgia lines 58-60 Circle Canto from the removing Vertucci was Vertucci describеd the second as a man male, tall, airport permanently; old, white about 30 years six feet weighing approximately pounds. He 2:00 a.m. on December approximately At hair, had short black combed back into a 4,1981, Kenneth Ellis was one awakened kind of “close Afro.” He clean-shaven dogs. He discovered Vertucci hand- eyes and had sideburns. He no had dark a light pole cuffed to at the end of Ellis’ *3 and a jeans long-sleeved polo and wore County, Ellis lived in driveway. Chambers was bigger lighter shirt. He and had a Texas, by car approximately 50 minutes than the complexion gunman. airport. from Houston 5, 1981, Nick On December Theodos subsequent freed Ellis Vertucci. a Jersey stopped the New State Patrol vehi- officials, police statements to Vertucci cle for on the speeding Jersey New Turn- that he of the maintained had been robbed was pike. driving Mendez and Romanello According to man hold- gold. story, one in the was back. invited asleep Mendez was load- ing gun a accosted him while he car, to Officer Theodos search the the and into France ing gold the the van at the Air two trooper packages containing discovered The him into gunman terminal. ordered Officer Men- gold chains. Theodos arrested . and away. the van directed him to drive subsequent dez and Romanello. A investi- joined The a man at gunman by second gation that the gold revealed was the same parking They a motel lot. loaded nearby Longhin as that which and Farneda had gold into an and drove off automobile brought airport. into Houston captive they with the Vertucci. As entered automobile, Vertucci at the li- looked At trial Theodos the car Officer described cense but could not read it because it plate two-toned, as a blue 1977 with Chevrolet later, A short time bent. the driver It four doors. had a radar and a detector car, stopped got and out of the and Vertucci plate. bent license Officer Theodos did not banging plate heard a noise as if the license describe Romanello and Mendez who were being straightened. were describ- Vertucci trial. present at ed the automobile as a having light-colored During investigation of Romanello exterior a dark a large and interior. It was Mendez, Hensely (one and John of the four-door, Chevrolet, maybe a four or about agents questioned had deter- Vertucci) who five old. years It had a radar detector. mined that Vertucci’s his as- description of According to Vertucci’s statements their sailants and vehicle matched Romanel- was driven out to and County, Chambers and How- lo and Mendez their automobile. to light pole. gunman handcuffed The ever, was not their pick Vertucci ablе to head, weapon against held his out of a photographs line-up. hammer; punched and clicked then he On December Romanello and Mendez three gun- times in the The head. Texas state indicted authorities man Vertucci that told if he described his aggravated and kidnapping offenses they return kill him assailants and 10,1982, robbery of Vertucci. On February family. and his The then drove assailants charges the state were dismissed. off in their car. 29, 1982, Romanello, On March Mendez threat, Despite described were all and Vertucci indicted in four felo- to police. two men He described by a federal ny grand jury. counts male, 5'7", gunman as a white 140 5'6" to counts were: pounds, youngish 150 a facе. stealing jewelry 1. in violation 18 short, black, clean man was shaven with 2; 659 and U.S.C. §§ combed-back hair. He had large, brown complexion. importing jewelry a 2. into the United eyes and medium-to-olive in violation of wearing jacket He was leather and a 18 U.S.C. §§ 2; pullover shirt. in sufficiently defense was not goods stolen in inter- Vertucci’s transporting
3.
in violation of U.S.C.
with the defenses of Romanello
state commerce
conflict
2;
justify
severance:
§§
the offenses de-
conspiring
commit
rob-
At
core of Vertucci’s defense of
1-3
well as to ob-
scribed in counts
lies
contention
bery
kidnapping
justice in
of 18
struct
violation
U.S.C.
he was not involved
the criminal
§
requi-
and that he lacked the
conspiracy
Roma-
site criminal intent. Mendez and
was that all
government’s theory
and lack
nello’s claim noninvolvement
in the con-
participated
three defendants
from
apparent
of criminal intent is more
acts in fur-
spiracy
performed
various
they
present
defense that
were not
thering the
crimes. Vertucci al-
planned
of the relevant
airport
any
at
legedly
airport;
took the
no
and that
clue that
times
pole
then he was handcuffed to
order
to New
gold they attempted
transport
robbery.
of a
His
appearance
to create the
*4
defense
camp’s
of his “assailants”
accord-
York was stolen. Neither
descriptiоn
partly vague.
guilty.
accurate and
the
to
the other
ingly partly
requires
find
points would
him
the
Accuracy
help
Although
gave
on some
Vertucci
authorities
remember details and
consistent be-
appear
of
a
descriptions
his assailants which bear
other
police; vagueness
points
fore the
on
co-defendants,
to
he has
resemblance
his
prevent
police
actually
would
the
being
never accused or identified them as
to
catching
co-conspirators. According
sum, the
con-
his attackers.
Court
government,
and Mendez
the
Romanello
trial of
joint
cludes that
defendants
stage
carry
were to
out the next
of the
Romanello,
nоt,
and Vertucci has
Mendez
theft, transporting
gold
to New York.
date,
a fair
denied them
trial.
However, they
were stopped
Officer
Record,
I,
judge’s
75-76. The'
Trial
Vol.
they
Theodos before
reached
destina-
partly
Vertucci’s failure
conclusions
reflect
tion.
specif-
at trial and
take
witness stand
at his
ically point
finger
co-defendants.
II. PROCEEDINGS BELOW
of
joint
proceeded.
trial
At the close
together
The three defendants were tried
evidence,
of
jury returned verdicts
a
in the
before
United States District
guilty
against
on all counts
all defendants.
of
Court for the
District
Texas.
Southern
to seven
im-
years
Vertucci
sentenced
The defendants filed
motions and
pretrial
and
prisоnment.
Mendez
Romanello
motions
supplemental
pursu-
for severance
imprisonment.
to ten years
sentenced
ant to
al-
They
Fed.Rule Crim.Proc.
appeal
This
follows.
alia,2 that
leged, inter
their defenses were
joinder
and that
would have
III. DISCUSSION
the effect
a fair trial. The
denying
them
14
a small
comprise only
the trial
The Rule
issues
parties argued
issue before
court,
legal
he
within a
during
greater galaxy
and
entered
cluster
the sever-
order
the motion. He held that
claims.3 Given our resolution of
denying
Farneda)
refusing
alleged
(Longhin
in
2. Vertucci
also
that Romanello and
and
and
nesses
exculpate
requested
give
Mendez
him if he were tried
the law
a
instruction on
sеparately.
grant
The trial
did not
concerning property
court
“in
held
bond”
Cus-
severance,
stating that
had failed in
Vertucci
toms.
specifying:
(1) a
need
his burden of
bona fide
and
claim
the denial
Romanello
that
testimony,
(2)
for the
the likelihood of such
coupled
of severance
with Vertucci’s decision
testimony,
testimony,
(3)
such
the substance of
stand
them their
not to take
witness
denied
(4)
exculpatory
and
and effect of
nature
rights
Amendment
a witness
Sixth
confront
Butler,
testimony.
See
v.
such
United States
argue
against
They
certain
them.
also
Cir.1980).
(5th
611 F.2d
1071
testimony concerning
should not have
Farneda
excluded;
they join
in at-
argues
appeal
been
on
trial court
3. Vertucci
Longhin’s
tаcking the admission of
statements.
admitting
erred
statements
two.wit-
claim, however,
conflict,
explore
we need not
must be in
such
anee
defenses
regions.4
jury,
those other
universe is
in order to believe the core
astral
Our
of one
defense, must
question.
disbelieve’
necessarily
limited
Rule
Berkowitz,
core
other.
of the
662 F.2d at
A. Requirements for Severance
1134, Sheikh,
Trial Vol but any He doesn’t have choice evidence. today, but sitting in this courtroom however, to be underly- with the disagree, We him in with the other two. lump don’t and Mendez ing premise that Romanello Cir.1978) (defense reversible, (5th lack of intent not of Smith was not 5. The conviction highly prejudiced “not in the of non- because he was with co-defendant’s claim irreconcilable by pres- Salomon, presentation involvement); his defense Johnson’s 609 United States v. Moreover, at 1132. Smith 1172, Cir.1980) ence at trial.” (5th (entrapment de- 1175 F.2d appealed ground. Id. at 1131. on this not necessarily prove that co-defend- fense did not Marable, guilty); and United States v. 574 ant distinguishable from others 6. Our case is Cir.1978) (claim (5th 224 of non-involve- F.2d In Berkow- has been denied. which severance irreconcilably antagonistic to defend- ment not itz, participa- his own each defendant admitted defense). no ant who offered co-defendant in the crime but described his tion deeply 1132-33. more involved. 662 F.2d at as argues government the three also 7. The Sheikh, knowledge both defendants denied antagonistic, because could not be defendants crate, packing heroin was contained in a excul- had offered to Romanello and Mendez that he believed the co-de- but neither indicated separately. Brief pate if were tried knowledge. to have that fendant appears argument Appellee at 42-43. This Berkowitz, Sheikh, In contrast to both however, specious, since Romanello somewhat premised on claim of innocence actually exculpated Vertucci Mendez never guilt; and the сo-defendants co-defendants’ motion for severance after their before disprove attempted his defense. in turn was denied. distinguishable case is likewise Our Swanson, 529 v. 572 F.2d United States
179
Record,
IX, 30,
Through-
always
has the
option
acquitting
Vol.
32-33.
Trial
The real
every
question
defendant.10
for a
Burge reminded the
counsellor
out
considering
court in
a severance motion is
indicted Romanello
that the state had
convincing
not how
a defendant’s evidence
kidnapping
robbing
is, but whether
the core of his defense
XIII,
client, see,
id.,
(cross
e.g.,
Vol.
directly implicates the co-defendant. We
V, 80
Hensely),
of John
Vol.
examination
the core of Vertucci’s defense
believe that
Theodos);
(cross examination of Officer
directly accused Romanello and Mendez.
XV,
and that
(closing argument)8;
Vol.
Moreover,
was substantiat-
that accusation
his assail-
accurately
Vertucci had
described
when
introduced Ver-
government
ed
ants, id.,
XII,
(cross
Vol.
76-79
examination
ar-
description
tucci’s
of his assailants and
Theodos to show that Mendez’s
of Officer
gued
description
accurately
description),
matched Vertucci’s
Vol.
car
Romanello and Mendez.
Trial
matched
See
VIII,
(cross
examination of John Hense-
Record,
XV,
matter,
practical
Vol.
89. As a
XV,
ly),
(closing argument).
Vol.
well
arguments by
Burge
counsellor
as
An accusation
cоunsel can state the
by
government
identified Romanello
as
of his client’s defense and cast blame
core
alleged
and Mendez as Vertucci’s
assailants.
Judge
on the co-defendant. As
Tate stated
hold that
defense of Vertucci was
v.
majority
for the
United States
Sheikh:
mutually exclusive of and irreconcilable
of an
stance on
taking
adversarial
with the defenses of Romanello and Men-
of counsel for co-defendants
part
dez.
generate
prejudicial
trial conditions so
put
To reach a different conclusion would
multiple
under
attack
co-defendant
like Romanello and Mendez in
defendants
and his co-de-
[i.e., by
impossible positiоn. They
an
would suffer
deny
as to
him a fair
lawyer]
fendant’s
compelling prejudice because of the accusa-
trial.
lawyer,
co-defendant’s
but their
by
tion
those condi-
D.
to Vertucci
gold smugglers
who fabricated the rob
bery story in order to shift suspicion
Whether
from
suffered
sufficient
Mendez,
themselves to
prejudice
Romanello and
to deserve a new trial is a more
innocent couriers.
complicated issue. Since Romanello and
Mendez did not base their defenses on a
The attorney
(Mr.
for
Borg)
Romanello
direct accusation of
he is superfi-
Agent
cross-examined
Hensely about Ver-
cially different
typical
from the
co-defend-
tucci’s statement
and elicited testimony
ant receiving a new trial
for failure to
robbery
defense was suspicious
sever.
Crawford,
Cf. United States v.
su-
Record,
XHI,
the start. Trial
Vol.
pra, 581
(each
F.2d at 492
defendant accusr
Then, in closing argument,
55-59.11
Borg
ing
other). Moreover,
although United
declared that “Vertucci was not robbed.”
Johnson,
supra,
seems at first to
Id.,
XV,
Vol.
187. The discrepancies be-
case,
bear a resemblance to our
it too is not
tween the
appearance
actual
of his co-de-
point.
on
The formal similarity is that de-
fendants and his description of the “suppos-
(like Vertucci)
fendant Smith
incriminated
gunmen”
ed
proved that he had been told
Johnson
having
without
Johnson base his
by smugglers to give
description
defense on
guilt.
distinction,
Smith’s
Romanello and Mendez.
Id. at 286-87.12
however, is
(unlike
that Johnson
Romanello
(Mr.
attorney
Clark)
also
Mendez)
did not attack Smith at all.
argued that Vertucci had been coached to
addition,
did not appeal
Smith
the denial
give
story.
fabricated
given
Vertucci had
of severance.
Therefore we are faced question with a car;” “getaway therefore, he could not impression: first whether Vertucci may himself; have seen it he must have been deserve a new trial if the core of primed. addition, his de- Id. 171-72.13 In he [by Borg]: you Oh, Mr. Now when heard desсription Q we have heard about the description you this supposed gunmen at an area that knew had that came to Vertucci people coming going, you suspi said-, you identify if me harm will come story, you? you. cious of that weren’t Yes, Well, you A: sir. description gave? do know the fact, As a description matter of even on per- Q: December .. . is not the of a [T]hat 8th, you thought suspect? saw, actually was a son that Vertucci claims he but suspect, yes. A: somebody He was a had to be that was told about it. you story And had doubts about his Q: He told. [sic] then, you? even didn’t *8 Yes, A: sir. pointed 13. As Clark out: it, you you? Because didn’t Q: believe did A: I had doubts. The identification the car was all Borg: nothing Mr. I hаve else. up. botched The car was dark outside with right. inside; The Court: All light just opposite. blue he had it the that, Id. at 58-59. Someone must have told him whoever working he have been with. Borg argued: 12. Id. tried, deny Mendez-were had to the light to the not have been handcuffed could claimed, lying. and show that Vertucci was robbery because he had long as he pole accuracy description, they the of his pole and would have Given yelling been from the just could not claim that someone else earlier. Id. at 172.. Clark been discovered pro- him. The itself conspiracy plan had taken robbed smugglers concluded explained antagonism di- duced and be- night late at pole could was stolen. tween the defenses. The say to rected him each attacked the Thus, put officials would be off not lose when defendant customs Vertucci’s involvement weakened each merely trail. Id. at 174.14 attacks other. operation would also ex- smuggling strength with a and underscored the defense certain customs plain his failure to fill out government’s theory. want to smuggles, you
documents: “[I]f
Thus, in the circumstances of this
it;
Id. at
through,
it
that’s
that’s all.”
get
case,
very prejudice
Vertucci suffered the
175.
designed
the severance rules are
of Vertucci’s de
attacking
In
the truth
rectify. Although the coré of his co-defend
fense,
Borg and Clark aided
attorneys
guilt, they
was not his own
ants’ dеfense
substantiated
prosecution.
They
nevertheless had to undermine Vertucci’s
that Vertucci had
government’s contention
to establish their
innocence.
defense
own
robbed, but had been hand
never been
hold that a defendant
like Vertucci
Moreover,
pole by colleagues.
cuffed to the
new,
deserves a
severed trial when:
con
with a basic
they presented
guilt
1.
the core of his defense is the
was untrue
flict: either Vertucci’s defense
co-defendant;
words,
Ver
or theirs was.
In other
either
disprove
2.
his defense would estab-
or Romanello and Mendez
guilty
tucci was
guilt;
lish
antago
case of
guilty.
typical
were
3. his defense and the defense of his
аccusations,
possibility
“a substantial
nistic
co-defendant are irreconcilable and mutu-
infer
unjustifiably
exists that the
will
exclusive;
ally
demonstrates
this conflict alone
actively
the co-defendant
attacks his
v.
guilty.”
both are
United States
Berkow
trial;
defense
itz,
substantive defenses were not of their nature irreconcil- pressures defendants. These alone threaten mutually Consequently, or exclusive. able to undermine the fair consideration of indi- under Berkow- required severance was not However, conspiracy vidual defendants. itz. dangers joint inherent in trials become howevеr, majority, determines that intolerable when the co-defendants become the statements of Vertucci’s counsel have gladiators, ripping each other’s defenses effectively identified Romanello and Men- In apart. antagonism, lawyer each dez the persons as who robbed Vertucci. government’s becomes champion Consequently, majority finds that co-defendant, against resulting core of Vertucci’s defense is that he was struggle leaves both defendants vulnerable of the gold his co-defendants. robbed to the conspiracy insinuation that a explains Berkowitz in in- majority goes beyond Vertucci, the conflict. We find that Roma- ferring record thаt Vertucci iden- nello and Mendez did not receive a fair trial tified Romanello Mendez and that this under these conditions. should constitutes the core of his defense. The separately have been tried from the other core of Vertucci’s that he defense was two. Romanello and Mendez still be merely imply robbed. Statements that together. tried perpetrated Romanello and Mendez We all convictions and RE- REVERSE robbery clearly peripheral are “minor or MAND for further proceedings in accord- matters which are not at the core of opinion. ance with this defense,” Berkowitz at 1134: what matter who robbed Vertucci if he was in fact GEE, Judge, dissenting: Circuit robbed? Berkowitz presented a similar sit- inapposite defendants, colorful if language, uation: both of a co- accused majority describes defendants as “wretches conspiracy, caine minimize attempted to hell,” in Dante’s “clawing into each other their own involvement and to cast the other antagonistic defenses.” While de- as the more active at 1132. participant. held that the core of their defenses was fenses are to some extent antagonistic, sober fact they antagonistic are not to the activity noninvolvement in the criminal point of being here, irreconcilable or mutually though, implied even each that the these, exclusive. Since this is what our authori- other was Like at their core guilty. require severance, ties I dissent from the defenses of Romanello and the reversal of defendants’ convictions. are quite consistent. Circuit, Moreover,
In our defenses identity even had the of Ver- among require defendants severance if pertained tucci’s robbers to the core of his defense, not, the defenses are antagonistic point clearly as it does the state- being mutually exclusive or irreconcilable. ments of Vertucci’s suffi- lawyer did not so Berkowitz, ciently implicate F.2d Romanello and Mendez as (5th Cir.1981). undisputed The defense of a de- severance. It require is antаgonism fendant reaches such a level of point during at no the trial did either Ver- “if jury, directly order to believe the core tucci or counsel ever accuse testimony offered on behalf of robbing that defend- Romanello or Mendez of Vertucci. ant, necessarily concludes, however, must disbelieve the testimo- that Ver- majority
183 (Vertucci the essence Romanello and of a defense lawyer identified tucci’s robbed), also elaboration of that through any as the robbers insinuations but and in jury by ingenuity defense devised counsel’s that opening in his statement in cross-examination of testimony possibly implicate elicited could a co-defendant (Vertuсci by various witnesses. Romanello and robbed Mendez). compelled As this result is not held, however, ac- implied have in this field and seems to me by precedent during of a made cusations defendant I unnecessary, both unfortunate re- of a co-defendant’s coun- opening statement spectfully dissent. sufficiently sel do not render defenses so. compel as to severance. Unit- Mota, 995, (5th ed v. 598 F.2d cert, nom, Cir.1979), Flores v. denied sub 1042, States, 1084,100 S.Ct. U.S. Mota, for (1980). counsel L.Ed.2d that, client, as to his
defendant Flores noted show what the probably would evidence The co-defendant government contended.1 America, STATES UNITED statement argued opening Mota this Plaintiff-Appellee, severanсe, the evidence required if contended as showed what the Flores, guilt it also establish the SMITH, Defendant-Appellant. Ruth D. preju- that Mota was not Mota. We held No. 83-1235 the trial court’s denial of his mo- diced Summary Calendar. judge tion for severance because the trial
had instructed the the comments Appeals, United States Court were not evidence and could not counsel Fifth Circuit. be considered as such. instructions Similar 21, Feb. 1984. given in this both before opening statement was made2 and
end of trial.3 was instructed Since rely
not to on the statements of counsel as
evidence, the statements are insufficient
implicate Romanello or Mendez. also that Mendez majority suggests
and Romanello did not receive a fair trial
because cross-examination testimony
counsel elicited that the state had robbing
indicted Romanello Mendez for kidnapping testimony Vertucci. This
was, however, balanced by testimony against
the indictments Romanello and
Mendez were dismissed and hence was in- fair
sufficiently prejudicial prevent need not have
trial. believed accusing
Vertucci was his co-defendants of
robbing kidnapping him. majority opinion radically expands concept of core defense to include not Id., 15, insanity relied on the defense. vol.
1. Flores record, 2. Trial vol. 12-13.