United States v. Gregory Larmar Crawford and Kenneth Ray Blanks
581 F.2d 489
5th Cir.
1978
Check Treatment

*2 CLARK, Bеfore FAY VANCE, Cir- Judges. cuit VANCE, Circuit Judge: trial, In a a jury Gregory found Larmar Crawford and Ray Kenneth Blanks guilty possessing an unregistered sawed- shotgun, off in violation of 26 U.S.C. 5861(d) and 26 § U.S.C. 5871. Arguing § that they should have been tried separately, appealed to this court. We re verse. driving

Blanks an automobile in Me- ridian, Mississippi, and riding Crawford was. as passenger in the front seаt when it was stopped city police officers. The officers recognized Blanks and knew that he did not have a driver’s license. While impounding vehicle, werе the arresting officers found shotgun par- sawed-off n tially hidden under the dash. The government contended that de- both possessed fendants the firearm. Blanks testified that Crawford owned the firearm presented witnesses who supported that Crawford, testimony. hand, on the other claimed that Blanks was the shotgun’s own- er he and that had not seen it before night of his arrest. present- Crawford also suggested a witness who that Blanks gun. trial, owned the Before and several 1955). defendants unsuc- Denial of a during the severance times will not result in reversal unless the cessfully moved for severance. defendant can show that he or she was “unable to obtain a together ordinarily Persons indicted fair trial without a severance” and can together. United States be tried “demonstrate compelling prejudice against Bolts, 1977), cert. which thе trial court unable to afford [was] *3 protection.” Swanson, United States v. 572 (1977); v. Mor 290 United States L.Ed.2d 523, (5th 1978); accord, F.2d 528 Cir. United 120, 1976), row, (5th cert. 537 F.2d 136 Cir. Perez, supra. States v. denied, 956, 1602, 97 51 430 U.S. S.Ct. recognizе Courts (1977). Federal Rules of Crimi that antagonistic L.Ed.2d ‍‌​‌‌​​​​‌‌​‌​‌‌‌​​‌​​​‌​​​‌​​‌‌​​‌​‌‌​‌‌‌‌‌‌​​​​‍806 14, however, defenses can provides prejudice an ex nal Procedure co-defendants to degree such a rule: that are ception general to this denied a fair trial. E. g., Johnson, United States v. 478 appears If it that a defendant or the (5th 1973); F.2d 1129 Cir. United States v. government prеjudiced by joinder Valdes, 262 F.Supp. 474 (D.P.R.1967).1 A in an offenses or of defendants indict- severance, however, is not every mandated by joinder information or such ment or time co-defendants with inconsistent de may together, trial the court order an are together. fenses tried United States v. counts, grant election or trials of separatе Perez, supra; Martinez, United States v. provide a severance of defendants or (5th 466 1972), denied, F.2d 679 Cir. cert. justice requires. whatever other relief 1065, 571, 414 U.S. 94 S.Ct. 38 L.Ed.2d 469 whether to sevеr de decision U.S; (1973); Robinson, United v. States 139 within the trial for trial is court’s fendants 286, App.D.C. (1970). 432 F.2d 1348 In de grant It a severance if discretion. ciding whether grant to a severance' the jоint may in a trial not be able to jurors trial court must balance possible preju culpability of a defendant determine dice to the against govern solely on the fairly, impartially and basis ment’s judicial interest ‍‌​‌‌​​​​‌‌​‌​‌‌‌​​‌​​​‌​​​‌​​‌‌​​‌​‌‌​‌‌‌‌‌‌​​​​‍economy and relevant to the individual evidence defend must consider the ways in which it can Partin, 621, ant. United v. 552 F.2d States prejudice by lessen the other means. Unit (5th denied, 1977), cert. 640 Cir. 434 U.S. Garza, 1164, ed v. (5th States 563 F.2d 1166 903, 298, (1977); 98 S.Ct. 54 L.Ed.2d 189 1977), denied, 1077, Cir. cert. 434 U.S. 98 Davis, 617, v. 546 F.2d 620 United States 1268, (1978); S.Ct. 55 L.Ed.2d 783 United 1977); States, v. (5th Tillman United Cir. Perez, v. supra; States United States v. 930, (5th Cir.), pаrt, F.2d 935 vacated in 406 Harris, 670, (5th 458 Cir.), 673 cert. 830, 2143, 742 89 S.Ct. 23 L.Ed.2d 395 U.S. denied, 888, 195, 409 93 U.S. S.Ct. 34 States, (1969); Peterson v. 344 F.2d United (1972). L.Ed.2d 145 type To cause the 419, (5th 1965). The 422 Cir. decision of the compelling prejudice prevents co-de court should not be overturned in the obtaining fendants from a fair Opper of an discretion. v. absence abuse of defenses must point conflict to the of being 84, 158, States, 348 75 S.Ct. 99 United U.S. irreconcilable mutually exclusive. (1954); v. McLau L.Ed. 101 United States Swanson, v. supra; United States United rin, (5th 1977), cert. de 557 F.2d 1064 Cir. Wilson, (5th v. 500 States F.2d 715 Cir. nied, 1020, 743, 98 54 L.Ed.2d 434 U.S. S.Ct. 1974), ‍‌​‌‌​​​​‌‌​‌​‌‌‌​​‌​​​‌​​​‌​​‌‌​​‌​‌‌​‌‌‌‌‌‌​​​​‍denied, 977, cert. 420 U.S. 95 S.Ct. Perez, (1978); v. United States 489 F.2d 767 1403, (1975). 43 L.Ed.2d 658 denied, 945, (5th 1973), cert. 417 51 Cir. U.S. 3067, (1974); 664 94 41 L.Ed.2d Schaf This record discloses that the defens S.Ct. States, 17, (5th 221 F.2d 19 es by fer v. United asserted Blanks and Crawford were States, 253, (5th 1968), 405 F.2d 1. of the factors that caused this court 265 One Cir. Stаtes, 2140, require a in DeLuna v. United cert. 395 U.S. severance 23 769; Practice, (5th 1962), ¶ said to L.Ed.2d F.2d 140 has been Moore’s Federal (1977). antagonism been the of the defenses as- at 14-4 04[3] have See, by v. serted the co-defendants. Gurleski mutually granted separate well as exclusive. a new as trial. irreconcilable Kotteo- States, was the guilt of each kos v. United The sole defense S.Ct. (1946); Blanks incriminated Crawford 90 L.Ed. the other. Barton Unit- every opportuni- at himself ed 263 F.2d 894 exculpated 1959).2 hand, Crawford, attempt- ty. on the other REVERSED and REMANDED. culpable that he because ed to show of the firearm. possession Blanks alone CLARK, Judge, CHARLES Circuit dis- government’s best witness Each was senting: against оther. Each defendant had With deference I majority, am left only present- hostile witnesses confront not with neither a definite nor a firm conviction wit- by also hostile government, but that the prejudiced defendants were legally Wit- presented by nesses his co-defendant. by their The government con- each were thus against nesses defendant possessed tended both defendants adversary and one cross exam- examined *4 which shotgun lawfully sawed-off was dis- adversary. A fair was by ined another triаl covered under the dashboard of the car they inherently impossible prejudi- under these jointly occupied. The common defen- cial conditions. by sive tаctic used both Crawford and first Before when defendants Blanks was to claim the other was the severance, the trial court was possessor weapon. moved for sole of the contraband each a given aware that defendant had the While I-didn’t-he-did of defense each directly other implicating statement the antagonistic defendant was to the use of by de defendant, and that the defenses asserted the the by same tactic the other the See, be antagоnistic. fendants would Unit common assertion of these cross-accusations Johnson, ‍‌​‌‌​​​​‌‌​‌​‌‌‌​​‌​​​‌​​​‌​​‌‌​​‌​‌‌​‌‌‌‌‌‌​​​​‍(5th v. F.2d 1129 Cir. States 478 be possibili- could reconciled under the third 1973). the trial progressed, repeated ty: joint possession. As No by case relied on were al majority motions for severance overruled the abuse finds of discretion in though inevitability рrejudice denying the of should severance in this same fact matrix. apparent. have become Under Rule 14 the appellate Our task is to the review еxer- duty when prejudice trial court’s to sever by cise of the judge discretion trial who appears, throughout continues the severance, on rules a motion to 511, v. United 362 80 Schaffer reexercise that discretion here. Discretion 945, (1960); S.Ct. L.Ed.2d 921 United ruling in request on a for severance rests Clark, (5th v. 480 F.2d 1249 States upon balancing a the of intеrests of defense 1973), cert. 414 U.S. prosecution. and Even aside the from fact (1973). 38 L.Ed.2d Because shotgun that a sawed-off in an automobile uncomplicated only еvidence was two is as apparent about as an in elephant involved, defendants were the inconven bathtub, the government’s contention of expеnse ience of would separate trials joint possession should not ignored be in the great. not have been States balancing process. prejudicе prose- to Johnson, Harris, supra; United States v. resulting cution from separate trials in States, supra. supra; v. United Schaffer which each defendant could lay оff on the Although (who of each evidence defend- other could make himself unavailable guilt strong, amendment) ant’s individual was this by invoking the fifth was a intrinsically trial prejudiciаl. proper weight A sever- in place to the scales. The granted. ance have been Applica- people justice, interest of the which governing tion our by of the standard review be served allowing single jury would to requires each be of these defendants decide between three possible versions Wright, appellate Procedure, 2. “If left with a court definite C. Federal Practice & may (1969), quoted defendant have at firm conviction that a § in United States v. Johnson, prejudiced give been the refusal to him relief 478 F.2d 1134 n.8 joinder, 1973). it must from reverse conviction.” privilege of outweighs possession, enjoy advantage in an disclaimers. respective their presentation of discretion any abuse do not discern

I

here. raised as no merit in issues I find

Because or as to possession proof prior acts the Youth Cor- ‍‌​‌‌​​​​‌‌​‌​‌‌‌​​‌​​​‌​​​‌​​‌‌​​‌​‌‌​‌‌‌‌‌‌​​​​‍findings on judge’s Act, majority which the matters

rections reach, I would affirm. not have

did PETROLEUM

The AMERICAN Petitioners, al., *5 et

INSTITUTE Manufacturing Chemists Association Specialties Manufac

and the Chemical Association, Intervenors,

turers AND SAFETY

OCCUPATIONAL et ADMINISTRATION

HEALTH

al., Respondents, Department, Union

Industrial

AFL-CIO, Intervenor. 78-1676, 78-1253, 78-1257, 78-1486,

Nos.

78-1677, 78-1707 and 78-1745. of Appeals,

United States Court

Fifth Circuit.

Oct.