United States v. Cecil Arnold Odom, A/K/A Bud Kelly
888 F.2d 1014
4th Cir.
1989
Check Treatment

*1 PART, IN REVERSED AFFIRMED IN action, are collateral. and those which IN- PART, WITH case, however, AND REMANDED in another Supreme Court STRUCTIONS. distinc integral/collateral rejected has determinations, stated, finality tion for least, matter, at we think general

“As attorney’s

indisputable a claim of the action part of the merits

fees is not v. Budinich pertain.” fees

to which the Co., Dickinson &

Becton 1717, 1721, 100 L.Ed.2d 178

S.Ct. attorneys’ America, fees was on perspective This UNITED STATES v. Ernst reiterated last term Osterneck Plaintiff-Appellee, U.S. -, Whinney, 109 S.Ct. & Both Bu (1989).8 990-91, L.Ed.2d 146 ODOM, Kelly, Bud Arnold Cecil a/k/a de were unanimous dinich Osterneck Defendant-Appellant. cisions; extensively; and both cited White expansively. White interpreted both No. 88-5687. deci- light Supreme these Court Appeals, States Court of United

sions, persuasive the Eleventh Circuit’s Fourth Circuit. Gordon, own rationale analysis in and our Argued May 1989. Hicks, that Mor- expressed in we conclude timely Decided 1989. attorneys’ fees was Oct. ley’s request for the district also conclude filed. We denying its discretion

court did not abuse attorneys’ hearing issue

Cohen Fund v.

fees. Environmental Defense Cir.1983); (4th

Lamphier, 714 F.2d Ass’n Concerned Veterans

National 1319, 1330 Secretary Defense, 675 F.2d (D.C.Cir.1982). other issues. He raises a host of

Cohen

argues weight of the evidence defenses;9 him on his affirmative

favored refusing court erred

and that the district limi- on statute of grant separate issues, refusing give re- and in

tations We find these

quested jury instructions. merit.

arguments to be without

Conclusion the district recapitulate, we find that

To Morley’s declining to reduce

court erred in settle-

recovery by the amount received Baker, affirm on all Watts. We

ment grounds.

other Osterneck, 59(e) plaintiff.” applied 109 S.Ct. at 991 to a tion due held that Rule 8. Osterneck Budinich, 1717). discretionary prejudg- postjudgment (citing at motion for interest, "[Ujnlike attorney’s explaining, ment fees, regarded as an law were which at common limitations, the statute of He lists these as part of the element of and therefore not costs contributory compara- estoppel, waiver and judgment, prejudgment tradition- interest merits ally set-off, intervening negligence, cause. tive compensa- part of the has been considered *2 During underling.” days “an these two trial, attorney Fineham’s made several mo- for claiming tions a severance Finc- that being unduly prejudiced ham was by the appellant’s attorney manner in which was conducting appellant’s defense. On the day trial, Judge granted third a Motz appellant’s objection. over judge proceed to elected with the trial Fincham, who was convicted. trial that judge found because he had mistrial, granted and a severance not a requirement there was no there a that necessity” to “manifest discontinue the tri- required by al as v. Washington, Arizona L.Ed.2d judge The trial further found “even if proper is the case, standard in such a there was manifest necessity here.” We find that on facts the did not abuse granting a discretion in severance. The had discretion as to which de- trial, fendant to sever from the and judge did not abuse discretion sever- ing the appellant rather than the codefend- Baltimore, West, Md., Luther for Charles ap- ant Fincham. We find no violation defendant-appellant. pellant’s protection against Sale, Slaymaker Barbara Asst. U.S. him to requiring now stand trial. Baltimore, (Breckinridge Atty., Md. L. Will- cox, Atty., Washington, D.C., on U.S. I. brief), plaintiff-appellee. understanding ap- For a proper of this necessary prosecu- it is peal, to review the Before and MURNAGHAN consequence resulted as tions that have CHAPMAN, Judges, and Circuit witness, of the murder of a federal John SMALKIN, United District States Vitkauskas, killed who was June Judge Maryland, District of testify against Dale Jo- Vitkauskas was designation. sitting by son, seph Sr. and his Dale Jo- Benjamin, CHAPMAN, Judge: seph their trial for the Benjamin, Jr. Circuit car. An indictment theft an armored presents appeal an unusual This former February charg- was returned on question. and Appellant a code- Benjamin, Sr., ing Joseph Dale Victor Car- Fincham, fendant, were tried Victor Carroll Miller roll and Cleveland Everett government conspiracy to murder a wit- murder, tampering with conspiracy to with aiding abetting in the murder ness and informant, witness, retaliating against days After of a witness. two witness, using tamper firearm appellant’s became obvious against an using firearm to retaliate plan attorney adopted of defense present appellant, Cecil informant. The power in his doing included all Kelly, known as Bud Arnold also per- Fincham attack codefendant action. not indicted first past wrong- suade the reference began Trial on the first indictment “kingpin” was the ful acts prosecution contended killing merely May 1988. The appellant and that attorneys govern dur- ground to kill rules hired Miller Benjamin and Fincham testifying him and examination statements prevent Vitkauskas trial, Benja- During the of witnesses. so against Benjamin. and cross examination testify in his defense attempting prevent antago- min elected to doing he was *3 claim- information, moved for a severance Fincham then such as prejudicial nistic and antago- Benjamin’s defense was that dealings, from prior firearm and narcotics to his own defense. prejudicial nistic and brought by one defen- being into evidence evidentiary Judge Young conducted an against the Counsel for Odom dant other. hearing to sever and found on the motion objected ground rules because he to these completely an- Benjamin’s defense “is that of Finc- present more evidence wished with Finc- tagonistic to and irreconcilable in his wrongdoings, ham’s and jury Benja- If ham’s defense. believes jury questioning and in statement Fincham, sim- story, min’s it must convict possible everything he did the witnesses story, ilarly, jury Fincham’s believes eyes jury. of the prejudice Fincham the defense, in his it Benjamin refers attorney was admonished on several judge Benjamin.” The trial must convict judge, occasions the trial but without Benjamin’s defense fo- further found that Appellant’s attorney refused to success. drug and on Fincham’s involvement cused ground follow rules established killed that Fincham had Vitkauskas claimed proceeded upon attack with his police prevent telling him from about During the codefendant the first Fincham. judge drug dealings. Fincham’s found days of trial Fincham made unsuccess- two that, testify as a Benjamin was to ful motions for a but on the phone call he made to Fincham result of morning day of the third of trial the court knew of to advise him that Vitkauskas necessary to found that a severance was ring, distribution Finc- Fincham’s cocaine protect presented ques- Fincham. This Benja- ham had killed and set Vitkauskas tion of which defendant should be severed. guy.” upmin as “the fall The court found severed, asked to Odom Fincham but Benja- of Fincham allowed that a severance the trial asked to be retained and complete with- min to defense proceed against him. The United States unfairly prejudicing Fincham’s case. out Attorney the case continue asked acquit- verdict in the first trial Fincham had Fincham because Miller, Benjamin and convicted who ted the first trial and a been severed from govern- cooperate with the then elected charge of Fincham on a second severance Acting upon supplied information ment. conspiracy to commit murder as serious as Miller, grand jury returned a su- public that give appearance to the charging Fincham perseding indictment system.” Fincham “beat conspiracy to appellant Odom with granted the motion to The trial murder. Miller’s statement was that Odom proceeded with the tri- appellant sever fully planning of the involved al of Fincham. murder and that Odom had ridden when Vitkauskas Miller Vitkauskas thereafter, filed a motion Shortly Miller was taken on his last ride. also on double to bar his retrial paid money stated he was $500 grounds prevent motion to and a forgiven a cocaine debt and also had retrial, government, in the event of a payment killing Vitkauskas. developed since the using any evidence previous trial. Both motions time of his indictment, Following superseding appealed. and Odom were denied anticipa- Fincham for a severance moved unspecified antagonistic defenses. tion of hearing

Judge held a and denied the Motz II. motion, severance but stated it would Fincham Defendants Odom and subject as the trial devel- to reconsideration charged in same indict properly opening day of trial the were oped. On Fed- joint for a ment and scheduled judge attempted to establish certain district provides Jeopardy Procedure 8 Double Clause the outlined eral Rule of Criminal trial, history they are the return of joinder of defendants when indictment, superseding in the same act and the events alleged participated to have leading granting up to the of the severance constituting an offense. series of acts as follows: Federal Rule of Criminal Proce- provides: dure 14 again Prior to moved for a upon anticipated antago- severance based Prejudicial Joinder Relief from nistic defenses. This court denied the appears If that a defendant or the motion, subject to it renewed dur- prejudiced by joinder government is ing the course of the trial if it became offenses or of defendants an indict- *4 apparent Kelly’s1 that defense was so by or joinder ment or information such antagonistic deprive to Fincham’s as to together, may the court order an for trial a fair In denying latter of counts, separate or election trials of motion, the court also established certain pro- of grant a severance defendants or rules, ground designed to assure a fair justice whatever other relief re- vide defendants, concerning trial for both ruling by In on a quires. motion a defen- extent to which Government could for severance the court order dant present drug evidence as to activities in attorney government to deliv- alleged Kelly which it Fincham and were inspection to the court for in camera er Kelly involved and the extent to which by or confessions made statements present could evidence of and refer to in- the defendants which drug illegal in and other activities which tends to introduce evidence at the tri- alleged he that Fincham was involved. al. After the statement made Santoni, In 585 F.2d United States West, attorney Kelly, Luther (4th Cir.1978), 667, 673 we found that when Fincham renewed his motion for a sever- improperly joined were under defendants ance. The court denied the motion at mandatory, we Rule 8 severance was but time and several times thereafter hand, joinder the other stated: “On However, again it was renewed. when proper permitted the trial court was morning day of the on the third determining exercise its discretion position the Court reconsidered its proceed joint with a whether or not to granted Fincham’s severance motion. Spitler, trial.” In United States catalyst ruling for this was an evi- (4th Cir.1986), pointed F.2d we dentiary question; Kelly wanted to elicit case must out that the facts of each testimony concerning firearm examined to whether sufficient determine concluded transaction which Court severance, prejudice require a but exists to Kelly’s part admissible as defense “Application this standard we stated: properly was not admissible but ... is for the court the first district rul- Fincham. The context which the instance, only here reviewable made, however, ing was was created Spitler abuse of discretion.” In we also Kelly’s defense. general conduct of per antagonistic held that defenses do not unfolding, it As the trial was became require se even when the defen- increasingly apparent despite admo- attempt each dants to cast the on blame Court, Mr. would nitions from the West present we other. on the record spirit by the letter and the not abide convinced that the trial did not are he ground rules and that this Court’s granting abuse his discretion sever- his client the defense of believed day the third of trial. ance on tone, required him to be hostile as well substance, Fincham. See- denying appellant’s motion as in towards his order gathering, ing the storm clouds present indictment under the to dismiss the Kelly” given Appellant name Odom. used the alias "Bud Kelly often as than was referred to more principles of Arizona v. Wash- light that a severance decided Court found to be ington, once a severance is ordered. have to be necessity, warranted charged with were the defendants Since is to has sound discretion over who A properly joined. they were conspiracy, is to be severed.” retained and who co-conspirators preferable joint trial of generate conditions trial will unless such a severed in a Since Fincham been defendants as to one of the prejudicial so alleged arising out of the same prior trial After the deny him a fair trial. murder, not an of discretion it was abuse to the trial obvious began, became possible to consider the for the trial the trial he was throughout judge that public public impact upon opinion and confi- a choice of either faced with going to be might in the courts that result from dence defense, which could curtailing Odom’s a second severance of Fincham and sec- allowing attor- prejudice delay his trial.2 ond inflammatory attacks ney to continue his prejudicial would be III. Fincham. *5 judge decided that the trial We have attorney upon West The attack of granting within his discretion a sev was unrelenting so co-defendant Fincham was deciding of the co-defendants and in erance Fincham could not have prejudicial and We which of the two should be severed. as a co-defendant and received a fair trial question appel now come to the of whether jury as Odom. “The tak before the same required lant Odom to stand trial part on the ing adversarial stance of an jury, a new or whether such a trial before may generate trial counsel a co-defendant’s jeopardy clause of is barred prejudicial to the defendant conditions so any Fifth shall Amendment: “... nor deny him multiple as to a fair

under attack subject DeVeau, 734 F.2d person be for the same offense trial.” United States put be twice life or Cir.1984), cert. denied sub 1023, (5th 1027 States, person protected by limb.A Drobny v. 469 nom. United U.S. language being subjected to the haz 906, 83 L.Ed.2d 921 105 S.Ct. possibility bring ards of trial and convic attorney’s tactic was to out alleged detrimental and tion more than once for the same any information that was regard being placed jeopar It is twice to Fincham without offense. prejudicial triggers protection dy was relevant and not whether such information punished. in the indictment. convicted or twice charges contained twice However, every prohibit a valiant effort second trial is judge The trial made co-conspirators joint trial of with conduct a ed. either, he prejudice to but when out undue Supreme Court has not addressed impossible trial was found that a fair Jeopardy Clause as it relates to the Double together, he being tried

the defendants of a defendant who has been the retrial his discretion and sev proper made use of after attached in a severed a later trial. appellant ered the However, provided the Court has trial. guidance to us in Arizona v. motion was Although the severance substantial Washington, opposed made Fincham and (1978), which involved a claim to decide L.Ed.2d judge had the discretion jeopardy protection after trial to double should continue be which defendant request at the granting of a mistrial jury, and which defen empaneled fore the prejudicial statements subsequent state because dant for a should wait attorney in by the defendant’s his Aquiar, F.2d made United States v. opening (5th Cir.1980), “In statement. the court stated: previously, those were not the circum- opinion ered as to whether Court offers no pro- might us. an abuse of discretion of the case now before have been stances been sev- trial had he not ceed with Fincham’s Washington judge’s was tried and convicted trial decision is great accorded def- murder but his conviction was reversed on erence. reviewing appeal and went to trial a second time. satisfy itself that “the trial jury Washington After the was sworn and exercised ‘sound in declaring discretion’ placed jeopardy, attorney made mistrial.” Id. at 98 S.Ct. at 835. opening an statement in which he stated persuaded that, We are along with the prosecutorial during misconduct spectrum problems of trial which may first trial had necessitated second trial. warrant a mistrial and vary prosecutor objected requested amenability their appellate scrutiny, claiming mistrial that such was a “manifest difficulty which led to the mistrial in necessity” protect public interest this case also falls in an area where the judge, fair trial. The trial after consider- judge’s determination is entitled to curative instructions to the special respect. solutions, other alternative concluded that In this case the trial ordered a adequate granted none would be and he mistrial because the lawyer defendant’s prosecution’s motion for a mistrial. Wash- improper made prejudicial remarks ington then claimed that another trial was during opening jury. statement to the Clause, barred Jeopardy Double but Although respondent insists that evi- Supreme agree Court did not and stat- prosecutorial dence of misconduct was ed: law, admissible as a matter of Arizona Unlike the situation in which the trial has therefore that the statement conviction, ended in acquittal re- proper, regard we this issue as fore- automatically is not barred when a by respondent’s closed proffer failure to proceeding criminal is terminated with- precedent supportive Arizona of his finally resolving out the merits of the *6 by contention and the state court’s inter- charges against the accused. Because of pretation law, of its by own buttressed variety of may circumstances that opinion the consistent of the Federal Dis- necessary discharge make it jury a trict Appeals. Court and the Court of concluded, before a trial is and because Wood, Bishop 341, Cf. 426 U.S. 346- those circumstances do not invariably 2074, 2078-79, 347 S.Ct. 48 L.Ed.2d [96 accused, create unfairness to the his val- (1976)]. 684 We therefore start from right ued by to have the trial concluded a premise that defense counsel’s com- particular tribunal is sometimes subor- improper may ment was have affect- public dinate to the in affording interest impartiality ed the jury. of the prosecutor opportu- one full and fair recognize pos- We that the extent of the nity impar- his evidence to an measured, sible cannot bias and that in jury. importance tial Yet view of the the District quite Court was correct in right, and the fact that it is frus- believing judges might that some trial mistrial, by any prosecutor trated proceeded giv- have with the trial after must shoulder the justifying burden of jury appropriate cautionary in- the mistrial if he is to avoid strict, sense, structions. In a literal a heavy bar. His burden is a one. “necessary.” mistrial is not Neverthe- prosecutor must demonstrate “mani- less, overriding interest in the even- necessity” any fest mistrial declared justice requires handed administration of objection over the of the defendant. highest degree that we accord Id. at 98 S.Ct. at 830. respect judge’s to the trial evaluation of The court found that other decisions had impartiality the likelihood that the of one necessity” “imperious used “evident jurors may or have more been affected necessity” phrases but that these have the improper comment. meaning necessity,” same as “manifest “high degree” necessity. refer to a It necessity improper unques-

concluded that this level of An statement tionably public difficult to define and for this reason the tends to frustrate the in- 1020 necessity” just requiring having judgment a reached situation of “manifest in

terest Indeed, a fair tribunal. such severance insure impartial risk, often not create a statements right A to have his trial com- defendant’s juror bias situa- present in the individual particular pleted jury is not abso- before tion, panel may be tainted. that the entire pointed lute. Black in As out Justice course, may judge, instruct trial Hunter, 689, 69 Wade v. 336 U.S. S.Ct. improper disregard the com- (1949): L.Ed. 974 defen- “[A] may cases disci- ment. In extreme right valued to have trial com- dant’s counsel, remove him pline or even from pleted particular in by a tribunal must in as he did United States pub- some instances be to the subordinated Dinitz, S.Ct. [96 designed lic’s in fair end in interest trials actions, (1976) Those how- L.Ed.2d 267 ]. just judgments.” ever, necessarily remove the risk will not analysis unpersuasive be- The dissent’s improper of bias that be created personal cause it reasons that the nature argument. unscrupulous defense Unless requires applica- the double bar an unfair ad- counsel are to be allowed necessity gauge tion of the manifest test to vantage, must have the trial court’s choice of which defendant power appropriate to declare mistrial sever, among many given several orderly, impartial cases. The interest plainly necessity there was manifest if he procedure impaired were would Thus, place. in the the dis- sever first power by exercising deterred test, sent advocates two-tiered in which reviewing concern that time a must be found to exist disagreed of the tri- assessment steps at process. both of the severance automatically retrial al situation a would Applying the manifest test adoption stringent of a be barred. light inappropriate fashion is of that area, appellate standard of review this origin test’s in the historical context of therefore, impede seriously the tri- single-defendant trials. discussion proper performance See al of his “duty, protect Washington, Arizona v. U.S. at 506-10 integrity in order 18-27, nn. & nn. at 830-32 & prompt to take and affirmative S.Ct. context, professional stop action to ... miscon- 18-27. In this historical the devel- *7 opment individually duct.” test to fit of an focused situation is both understanda- mistrial 510-13, Id. at 98 S.Ct. at 833-34. But, entirely appropriate. ble and recognize that conduct of We Odom’s (which, joint given trials context of misconduct, attorney did not amount to law, reality of are current federal criminal Washington’s attorney, did of and we trials), appropriate more mass often do not label it as misconduct. it place application of the manifest neces- for designed prejudice the codefendant sity judge’s is the trial initial decision test evidence, statements, of by Fincham use proceeding. then stop the trial as it is illegal past acts and innuendos about his question of whom to sever a choice present might not be relevant to the discretion, only for be reviewed charge. familiar The trial with abuse, by application a second first and indictment and he at- stringent necessity extremely tempted try co-defendants who had been test. properly spite of his joined, but efforts way, society the interest fair he found that a trial for Fincham all, achieving just trials see fair for 'long in joint be denied so as he was a would Hunter, 336 U.S. at Wade v. finding with His Odom. entitled at not be the mechani- “special will defeated respect,” and we find that the rooted application cal a test in historical “sound discretion” exercised the insufficiently antecedents related required by Washington Arizona v. in con- cluding presented justify this context. realities circumstances conclude that the severance met the were We not trivial. Odom’sdefense turned in large degree standard of manifest and there attempt into an to show that proceeding responsibility was no abuse of discretion killing lay Appellant the trial of Fincham. Fincham’s shoulders and not his own. protection against Fincham, hand, on the other posi- took the by requiring go will not violated him tion that he prom- was not to blame. The present superseding to trial on the indict- inence during accorded the trial to those conflicting ment. The for the severance versions concerned the court all, was, after created the defensive over whether a fair trial could be insured employed by appellant tactics and his attor- to Odom and Fincham if together. tried ney. heightened problem seek- case,2 a severance of his while Odom strenuously objected to a severance.

IV. Deciding that severance was the best appellant’s We find no merit to claim pursue, course to the district court heard government that the be denied the use of argument as to which defendant was to be developed evidence that after severed. That would determine whose trial appellant the date of the trial from which proceed and whose would be de- was severed. ferred to a later date. For once unani- AFFIRMED. mous, the urged defendants both that Finc- severed, ham be proceeding with the trial MURNAGHAN, Judge, Circuit as to Odom. It appears that the federal dissenting: government, although it is clear that it felt majority Because I believe miscon- it had a viable case either background strues both the factual of this Fincham,3 Odom or preferred to continue law, applicable case and I constitutional against Fincham and defer as to Odom respectfully must dissent. already since Fincham had earlier secured A crime Maryland involving terrible occurred mistrial case charges government witness, when a for witness in a murder of the same federal government federal criminal case was murdered. The was concerned about the public established to its own satisfac- effect on the created time, grounds tion seeking escape, sufficient second for ob- the time taining individuals, least, hoped consequences indictment of two at Cecil Kelly, envisaged by government. a/k/a Bud Finc- the federal Victor ham, crime. The cases seemed judge, apprised The district eminently joinder, conspiracy ones for government’s preference and the reasons being charged and obviously the two cases it, underlying ap- was influenced what *8 having overlap an of factual material.1 peared justifiable to be concerns so he sev- gone after the case had to despite objections, ered out Odom based trial, jury impaneled with a and potential public- substantial on the aforementioned bad taken, testimony aspects ity postponed. certain of the case if Fincham’s trial The were developed disturbing against proceeded. as it became to the trial Fincham then judge. grounds trial The for disturbance That ended Fincham’s conviction. Odom 8(b) provides: 1.F.R.Crim.P. states: 2. F.R.Crim.P. appears govern- that a If it defendant or the may charged Two or more defendants be prejudiced by joinder is a of offenses ment or they the same indictment or information if defendants in an indictment or informa- of alleged participated are to have in the same joinder together, tion or such for trial act or transaction or in the same series of acts may separate order an election or trials constituting or an transactions offense or of- counts, grant a severance of defendants or may charged fenses. Such defendants be provide justice requires. relief whatever other together separately one or more counts or and charged brought why all of the defendants need not be were the two cases to 3. Otherwise place? each count. trial in the first not of that fact does answer jeopardy- a double lishment attempts now raise them, trial, question retrial. of whose between bar to his “necessary It be was not aborted. presented here is real- legal question The discharge jury before a trial conclud quite simple. jury had sworn ly The been 434 U.S. at Washington, ed.” Arizona v. As had to Odom. and attached 505, at 830.5 would 98 S.Ct. Severance made clear in Arizona Supreme Court inevitably lead to mistrial and conse 434 U.S. Washington, quent placing of one severed on (1978), premature termi- 54 L.Ed.2d 717 jury. trial trial before a second The trial objecting defendant’s nation of an proceed. against other could and would govern- unless subsequent retrial bars Mistrial, however, constitute would double that the defendant’s ment can demonstrate jeopardy in Odom’s case6 but would not to manifest neces- terminated due Odom, opposing sim- so in Fincham’s. sity. presented is thus do question The necessity severance, manifest existed insisted that his trial contin ply whether had right to have deprive interruption of his “valued un ue without but particular completed by severance, tribu- requested his trial like had Arizona, 434 U.S. at 98 S.Ct. at nal.” By act, mistrial. Finc- consequently a 830. ham consented to retried. Because request, of Fincham’s his retrial would not open question It not seem serious does jeopardy. Oregon amount been whether some severance should have 672, 102 Kennedy, S.Ct. may granted.4 accept that mani- We it was 2087-88, 72 L.Ed.2d 416 Odom’s festly necessary if for a severance to occur severance, there would. With Fincham’s That, of fair trials were to be assured. longer any no would be course, separate trials for necessitated retrial to sever Fincham’s Odom. Odom, a continuation before Fincham and Jeopardy up not run the Double one, jury and retrial same definitely Clause. Odom’s would. other. significant The found that no part Manifest abort one Odom’s,by aspect prejudice Fincham's or had occurred to either defendant far,7 existed, undoubtedly specifically estab- thus found that he severance but [ejven requests completed Rule 14 the first trial is not While severance under 4. trial,” grossly prosecution may "must be raised F.R.Crim.P. second unfair. It refused, 12(b), requested, imposes but been the financial and emotional burden accused, pre-trial the rule severance and in event prolongs period on the in which party's request concerns a not stigmatized he is an unresolved accusation court’s act to insure fair trial. district wrongdoing, may even enhance the risk con- that an innocent defendant operation. in full It 5. in fact remained danger victed. such unfairness to Fincham, ultimately the trial con- carried on a trial is defendant exists whenever aborted victing him. completed. Consequently, before it is rule, one, general prosecutor is entitled to Creating necessity” to inter- 6. a "manifest one, opportunity require only ac- rupt his trial. cused to stand Id. Prejudice from this no means absent accept govern- chose to district record, Indeed, prejudice to Finc- however. ment's because he felt the di- recommendation defense, perhaps ham caused minimal, while *9 analogous prosecutori- to the initial lemma was alternative, undoubtedly is albeit jeopardy before had al decision made attached. unstated, government’s prefer- reason the for Here, analogy inapposite. govern- is the proceeding against ence rather than him presented ment is with two trials which have prohibition jeopardy The double was Odom. progressed midway point; it will gov- to obvious- designed prevent possibility of such ly proceed choose to with the case that is tacti- overreaching purposes for the of se- ernmental curing sound, cally which valid- advantage. Jeopardy specifi- more it did. Whatever a tactical final, ity trying allegations policy cally judgment as to attaches becomes before had, embracing right review of the record there is "valued to have first reveals defendant’s tribunal,” particular question up” by completed "softened no Arizona, vigorous U.S. at because Odom's defense. Tactical ad- 98 S.Ct. at counsel's legal could see no reason to favor one over sever ig- and whom continue. That fought the other.8 who had sever- nores the fact that sought Fincham had trial, throughout ance wished to be himself, therefore, severance and for Fincham, sought retained. who had sever- retrial, necessity, while Odom vigor- had throughout trial, ance wished to be the ously insisted on his continuing. case It Ignoring requests, one severed. their not, submit, I open an alternative judge sought government’s recom- the trial court to exercise its discretion as mendation, unsurprisingly was the to which of the two defendants to sever opposite exact of the individual defen- (granting mistrial) and whose case to Asserting potential publicity dants’. bad continue on when one of the defendants stemming from the severance of Fincham asserting jeopardy provisions the double straight a second the Constitution going insisted on forward pressed for his retention. The court acced- and the other prepared defendant was government request ed to the and severed accept severance and mistrial. There sim- Odom. ply was not a to sever unraveled, Once that contention is to choose Odom there- merely stands revealed as an assertion not by declaring a mistrial in Odom’s case. that either Odom or Fincham could be se- The Jeopardy Double Clause will have little (i.e., lected for continuation of his trial dis- meaning in multiple trials the district other) govern- continuance for the at the court has the simply pick discretion choice, but, indeed, ment’s as a statement and, choose doing so, ig- course of that both Odom and Fincham could be nore one defendant’s insistence on already forced to abort a trial well under- tried when there was open a course attached, way as to which and trial to continue on. required to start majority anew. The problem faced, with which we are attempts gymnastic suggesting feat in indeed, strongly arises because pro- Odom that, if this case had involved trial of a against any tested severance which would single circumstances, defendant in Odom’s result in the discontinuance of the case in his double claim would be well progress him, while Fincham taken,9 question but because the severance sought just opposite. had to insisted be decided first and involved a sever, continuing against that trial’s choice of whom him a mistrial alone. either Odom or While a manifestly the court was severance was neces- free to exercise sary long its discretion as to whom it as there were the two defen- vantage necessity. is not manifest As the Su- either of these defendants as far as I am Arizona, preme Court stated in "the strictest point. my concerned at this That would be scrutiny appropriate when ... there is reason concern, specific thought concern. If I some- prosecution using supe- to believe that the body unfairly prejudiced, had been I would rior resources of the State to harass or to say that that was the one who would have to advantage achieve a tactical over the accused.” be retried at a later date. I don't think that at 98 S.Ct. at 832. Arizona exist in this case. [sic] concerned, As far as I am 8. The trial court ruled that it matter of who was not Odom’s “finger pointing" prosecute generally at properly Fincham that caused him to at what time sever the case: lies within the discretion of the Executive Branch, causing It's not that which is me to reach and since I see no reason not to be simply case, this decision in this case. guided by It’s they what desire in this I am accumulating problems I see terms of evi- going my to exercise discretion to have the dentiary rulings everything else which I proceed against case Mr. Fincham. Thank part think discretion is the better of valor at you. point, seeing problems down the road, you go it's sort of like when out to sea in (here multiple 9. Because there were defendants sailboat, gets high get the tide so and waves two), may promote the district court the mani- high, you get so no matter how much want to fest sever to cover the lack of neces- port, you just go to the next back a little more That, sity place jeopardy. Odom in I conservative. I think that's the conclusion I suggest, lightly avoids too the clear constitution- *10 have reached. prohibition jeopardy. al of double why going Now am I forward with Mr. go against Fincham? I think we can forward

1024 Odom, proceeded against had discontinuing constitut- If trial dants, portion of Odom have already manifestly prejudice commenced trial no would at- necessary, if Fincham’s manifestly defendant; was not either one wished to tached mandating reason trial were severed. The severed, retained. In one wished to be be de- mutually antagonistic a severance—the case, by sever- Fincham’s discontinuance not man- fenses of Fincham Odom—did subsequent him as to retrial ance defendant preference over which date a problem not create the constitutional words, may it other was to be severed. us in Odom’s case as which confronts sever; necessary to it manifestly have been things developed, for Fincham—not have manifestly necessary to sever not request for a sever- Odom—initiated Odom.10 request The to a motion ance. amounted essence, argument, in is majority’s The and ended a mistrial as to Fincham to war a severance is found be that “once basis, jeopardy grounds, double for as- on necessity, by ranted manifest serting retried. could not be Ore- who is to court has sound discretion over 667, 672, Kennedy, 456 U.S. 102 gon v. be and who is to be severed.” retained 2083, 2087-88, (1982). 416 72 L.Ed.2d S.Ct. 1296, Aquiar, F.2d United v. 610 States Odom, disagreeing Fincham and as to while Cir.), denied, (5th cert. severance, that, for a as one the need were (1980). In the 66 L.Ed.2d 31 S.Ct. severance, if there were to be a the case view, given majority’s manifest proceed against Odom. Odom was sever, the trial did not abuse sought the one who trial, and that discretion to defer Odom’s the essence of the clause is double the matter.11 majority is end of one, trial, put upon once his or her is however, rationale, pat- majority’s is entitled to continuation to conclusion a mat- A mere recital that ently incorrect. guilty finding acquittal. finding of or a ter the discretion of the trial is within necessary Only injus- if a retrial to avoid not immunize from constitutional does being to the one tried a trial tice instance, neces- concerns. In this manifest subsequent and a retrial occur.12 aborted trials, sity existed may have to sever severed, pro- If Fincham were trial could stage not the critical but that is injustice ceed without threat of double examination. place. in the first Re- prompted severance must focus on the severed analysis only in such trial is allowed circumstances rights defendant—it is his that are caused where mistrial was tested, safeguards that his constitutional of an error which could not occurrence weighed public interest must be during cured the remainder of Thus, the in- complete prosecution. necessitate a and which could rever- whether, quiry must be after severance barred, appeal. Retrial is how- sal mandated, necessity dictated manifest ever, where reasonable alternatives to right to have his that Odom be denied the cure mistrial are and could original jury feasible completed before the problem. sworn. judge's determining proposition exer- that the trial discretion is 10. "In whether the trial mistrial, declaring cised sound discretion in defendant unaffected whether the seeks or dras- were less we must consider whether there acquiesces in the of the first termination ending dras- the trial. If less however, tic alternatives Rich, inapposite. In Rich a available, they were should have Sartori, tic alternatives discharged objec pending over the trial was employed." United States v. been the defendant Rich. In the absence of tion of (4th Cir.1984). Many courts F.2d 975-76 necessity, the court found Rich’s re manifest require resorted to measures be "[c]urative jeopardy. trial barred double State 1078, can be found." before Frazier, Md.App. 555 A.2d case, course, if, as 12.Of in Fincham’s crimi- mistrial, requested has nal defendant jeopardy does not arise. to United States cites (10th 1978), Rich, 589 F.2d 1025 Cir. *11 Frazier, 118, 130-31,

State Md.App. good, it as underlying the pro- decision to (1989). 555 A.2d ceed Fincham rather than Odom. Policy concerns do confront, trump not In the constitutional situation which we there was, above, rights. paramount rights indicated ne- waived his by re- cessity discontinuing joint trial of questing severance. Absent factor However, Fincham and Odom. what had completely barring Fincham’s retrial if sev- upon finding to be done of manifest ne- ered, request to be retained must cessity to merely grant- sever was not be honored. “If a defendant chooses to ing of a mistrial to by grant be followed stick it out to the end, sweet or bitter a new trial to either party. Rather, it was is his If choice. the defendant desires a question party of which could be severed mistrial, he must manifest that desire triggering without jeop- law of double asking for it.” State, Crutchfield Here, ardy. Fincham could argue not dou- 101, 108, Md.App. 555 A.2d jeopardy upon ble retrial. Odom (1989). As Fincham sought mistrial while do, emphatically done, most could and has adamantly Odom insisted proceeding on so. with a choosing in effect “to stick it I in denigrate no fashion wish to out to end,” the sweet or bitter where he discretion judge. of the trial Absent con- had obviously already placed been jeop- imperative, reasoning stitutional ardy, the district court required certainly withstand our review.13 Yet con- accord to Odom his preroga- constitutional para- stitutional concerns must remain posture, tive. In that there was a manner Indeed, resulting mount. impingement of proceeding which could achieve both ob- on the trial court’s overall control of the jectives, with no intrusion on constitutional process severance is minor. If both Odom rights, severance for Fincham request- who sought mistrial, and Fincham prob- no it, ed and proceeding on with the trial of lem under double clause already which had commenced and occasioned, would have been whichever de- adamantly insisted pro- fendant’s extant trial had continued on and ceed. whichever defendant’s extant trial was de- stated, justification As ferred. If neither Odom nor the action of Fincham had sought with each district insisting asserted on the basis continue, problem United his case Aquiar, States v. 610 F.2d 1296 would also obviously (5th not Cir.1980), be before us. which mandates that defer- One “defendant’s right valued to have his given ence should be to the action of the completed by particular tribunal choosing district whom to continue to be subordinated to the [would have] try unless, course, and whom to sever public’s interest designed fair trials either rights defendant’s infring- would be Hunter, just judgments.” end in Wade v. However, severance, ed. while actively 684, 689, 834, 837, 93 sought, Aquiar objected was not to in L.Ed. 974 things, that state of apparently, instance, perceived particular however,

In this no such infringement. court’s choice was objection equate mandated. There was lack of acqui- seemed to need, only policy, perceived no manifest Id. at 1301.14 escence. Opting government’s preference Also,

13. prevailed. anew if her contention it was (hardly imperative), judge, a constitutional her intention to have her counsel criticize one however, disregarded protec- the constitutional exercising right defendant for his constitutional tion, concerned, against so far as Odom was silent, to remain in contrast to her election to jeopardy. double testify. object Her failure to to severance takes significance light on added of those condi- Aquiar distinguishable per- also since the tions. asserting son there because of a Furthermore, relying object severance to which she did not was the defendants, Aquiar sought wagging dog justify tail has as one of seven the choice of Odom she, severed, arguably culpable try- some more than to be rather than because entirely of six of whom kept would have to start accentuating aspects Odom’s counsel *12 up the in this of throughout, point his trial to ease consideration The critical however, acquiesce in necessity Odom did not The manifest not to is that severance. sought In- Fincham it. severance while with the continue his ended severance. deed, opposed He adamantly it. proceed By choosing to sever Odom continue as to him. He asked that the trial Fincham, granted in only the mistrial that, jeopardy rea- for double now asserts affected, the was of the defendant case sons, longer put to trial a no he repeatedly, even Odom. It was him being a manifest second without there time opposed.16 point vehemently is effec- rights. Al- of his constitutional violation tively up in Crutch- cogently summed though congenial task to fore- is not a it field: prosecution of a government’s close the summary, case is one in which thought a it at had case where least judge, concluding upon the trial that conviction, strong securing a chance of damaging had ad- statements which been nevertheless, cannot such considerations into mitted evidence have been as, high rise to same level contra- the excluded, it upon took himself to declare dict, States Constitution which the United sponte in a mistrial sua to protect order provides in Amendment 5: “... nor shall rights the of a defendant who did not subject any person for the same offence protection. seek consent that or to of put to be life or twice limb_” being nothing in the There record indicat- The federal can- ing manifest, i.e., evident, palpable, Odom, will, prosecute against his for not obvious, clear, plain, patent, necessity he crimes for which had been crime or put judge for to have aborted the for which he been indicted and urged gave justifiable Everyone of is no one here. case rise to the fear construction joint agrees any prejudice person” Fincham were the trial to that after "nor shall duty phrase proceed. had a But Odom’s counsel amendment to the Constitution the “ex- protect cept necessity” The district be- Odom’s interests. in a case of manifest should be however, granting ques- authority, fore the severance observed in I know of no for inferred. prosecution: expanding "except tions to the term to read: inferred (Odom’s counsel) Why ar- doesn’t Mr. West’s necessity of manifest or the case convenience gument Why isn't evi- have some force? that government." prosecutor reasonably argue from which one could dence phone have the effect that the call did not vitally important 16. It is to bear mind that government? to it at least subscribed mistrial, purposes of the double saying Why is not ... isn’t what Mr. West jeopardy analysis, case. was limited Odom’s right? argument Why legitimate isn't that reiterate, necessity To he and manifest him to make? together not be tried mandated sever- nothing also found district was ance but severance of Fincham sufficient. unfairly argument preju- West’s "was objected It was error to sever who of the dicial as as I am concerned terms far vociferously. There be no severance of this case.” whole context any longer, in the case unless manifest severance of Odom had occurred Even after recognizes proceed one pressing jeopardy objection and he was against double Fincham, sought with Odom’s severance, once who retrial, while the district court did granted it. of attack “with a allude to West's hostile tone language Washington, Arizona expressed personal venom” 824, 830, 497, 505, U.S. 54 L.Ed.2d 717 98 S.Ct. right disagreement with to introduce no West’s (1978), is most instructive: provocative evidence. importance right, in view of the of the Yet between actual is a vast difference There by any and the fact trial, it is frustrated mis- defense, partic- aggressive and an "misconduct" ularly prosecutor shoulder burden must carries the choice of label constitu- when justifying is to the mistrial if he avoid the presentation significance. Energetic tional heavy bar. His burden double is hardly proper basis for extin- client’s case prosecutor one. The must demonstrate “man- right guishing client’s to be constitutional necessity" mistrial declared over ifest jeopardy. free objection defendant. lorn, U.S. today pundits United States are some averse There Cf. 547, any adding decrying 27 L.Ed.2d 543 judicial to the utterances Again, manifestly founding They while the language fathers. favor severance taking necessary, the mistrial in the case of Odom was Constitution as it is written with no not. But such a strict insertions or emendations. trial, a retrial appellant barred Jeopardy Double Clause of the Fifth ULMET, Oliver Donovan

Amendment, applicable which is made Plaintiff-Appellant, *13 proceedings by in courts State the Due Process Clause of Fourteenth America; UNITED STATES of John O. v. Maryland, Benton Amendment. Marsh, Jr., capacity in Secretary as 784, 2056, U.S. 89 S.Ct. 23 L.Ed.2d 707 Army, Defendants-Appellees. (1969). deny appellant’s It was to error motion to dismiss the indictment. No. 88-2593.

Id. 555 A.2d at (emphasis origi- United States of Appeals, Court nal).17 Fourth Circuit. Accordingly, I would reverse and remand 31, Oct. 1989. instructions indictment of Odom be dismissed on ORDER grounds.18 Upon petition consideration

rehearing filed Oliver Donovan Ulmet 22, on September 1989, IT IS ADJUDGED AND ORDERED: petition 1. The rehearing granted; is 2. opinion September 11, The 1989, vacating the order of the district court and dismissing withdrawn; the case moot as is opinion affirming 3. An the district court Judge which Circuit BUTZNER Judge and District TILLEY concur and a dissenting opinion Judge of Circuit MUR- Though opinions 17. holding only boat passengers way two in such a Frazi- Crutchfield early April er majority. were handed down over a cannibals are never in a It all argument Imagine month to comes down the case to this. two individuals us, together. they walking trip argued. journey concerns not out for a were briefed or mountains, pass through leads they The fact them in the are state decisions on a part gorge barely of which a narrow point consists of federal constitutional law should not ren- negotiable traveling side two side. A inapplicable. der them however, slide, brought mountain has down a Etheridge Hospitals, Medical Center [v. debris, large making mass other of rock and ], (1989) 237 Va. 376 S.E.2d 525 the Su- impossible pass for more than one to at the preme Virginia validity Court of discussed the Passing same time. Indian file would cause cap of the under the Federal Constitution and dislodged arise the risk that a boulder one rejected challenges some same raised might Only strike and the other to cause fall. Etheridge here. While of course not bind- proceeding alone side or side would be safe. ing upon law, us in these matters federal (Fincham) One of the hikers press does not want to reasoning persuasive we find its and we fol- prefers nearby on but wait at a inn ’til case, adding only low it in this some addition- morning journey. next to continue the al comments. (Odom) other faces extreme time constraints Bulala, Boyd (4th 877 F.2d 1195-96 requiring presence at destination as soon Cir.1989). possible necessary, manifestly and feels it will, is, necessary you carry on. There consequences may be as unfortunate however, absolutely no manifest asserts, as the as still be (Odom) feeling exigen- detain the traveler time’s liable under state law for crimes commit- and, (Fincham) companion cies even if the Wheeler, ted. See United States v. manifestly necessary exhausted and found it 316-17, 1082-83, 55 L.Ed.2d 303 be, stop, hurry the man in a and no be, carry through doubt the one all, end, It is too reminiscent of that gorge debris choked while his erstwhile com- game ferry panion enjoy good night’s childhood permitted of how three mission- prefers. aries and three across a rest at cannibals river in a the inn which he