United States v. Irie E. Leonard, United States of America v. James L. Sarvis

of America STATES UNITED LEONARD, Appellant.

Irie E. of America

UNITED STATES SARVIS, Appellant.

James L. 71-1503,

Nos. 71-2019. Appeals,

United States Court of

District of Columbia Circuit.

Argued Dec.

Decided Jan.

Bazelon, Judge, Chief concurred in

part part dissented and filed

opinion.

Geoffrey Cowan, Washington, D.C. (appointed Court) appellant for in No. 71-2019. Johnson, Atty.,

Julius A. Asst. U.S. Titus, Jr., with whom Harold H. U.S. Atty., Terry Evans, John A. John F. Attys., Asst. brief, U.S. were on the for appellee. Rutherford, James F. Asst. Atty., appearance also entered an appellee. Raphael Sherfy Gary Quin- G. tiere, Washington, (both appointed D.C. Court) with whom Thomas W. Washington, Farquhar, D.C., onwas brief, appellant in No. 71-1503. BAZELON, Before Judge, Chief TAMM, Judge, WINTER,* Circuit Judge Circuit for the Fourth Circuit. WINTER, Judge: Circuit Defendants, L. James Sarvis and Irie jointly Leonard, E. were tried A. in Francis a five-count Salters felony charging dictment them with degree murder,1 murder,2 armed first robbery,3 degrée robbery,4 and second burglary.5 guilty found Sarvis robbery degree of armed and second burglary. It convicted of first degree murder, robbery, armed and sec degree burglary. ond Salters was ac quitted. appeal. and Leonard both

They advance a number of contentions why as to their should be re- convictions versed. conclude there were We magnitude three errors of sufficient They warrant reversal and a new trial. (1) were: the failure of the district * 2901, 3202, (Supp. pursuant Sitting by designation § IV to 28 U.S.C. D.C.Code 1971). 291(a). § 4. 22 § D.C.Code § 2401. 1. 22 D.C.Code degree 1801(b) (Supp. 1971). 5. 22 IV The first D.C.Code § § 2. 22 D.C.Code was dismissed count Salters murder upon of trial. commencement jury, requested apartment. Among as carefully Rudd’s these to instruct by defendants, Hughes, the Albert to scrutinize Jones and both Curtis government important government un- whom testified for the of two immunity immunity, had der a Francis witnesses whom Salters, granted; (2) limita- third the district court’s defendant. Other including Larry group, of members of the tion of the cross-examination of one government King, important Mauldin witnesses and Robert watched from felony building apartment with reference unrelated outside the but did to two King charges pending against him; (3) not enter. Both Mauldin and tes- give government, im- court’s failure to tified for the Montgomery, as did Donald the district cautioning another mediate instruction when member arresting group departed of an officer earlier. who impeach admitted to Leonard’s testimo- apart- men rifled Rudd’s While these Although ny in his defense. we do own ment, tortured, beaten, Rudd was grounds find them to rever- be Although eventually the none killed. of sal, are of we constrained to discuss some blow, their witnesses observed the lethal testimony pointed the other issues raised defendants’ culpability the to remaining of the contentions because Sarvis, Leonard or Jones testi- both. they again likelihood that will arise on fied Leonard him “he told [Leon- retrial. going kill Ben .... ard] nothing

There was else to do because he had seen . his [Leon- I. face and Jimmie’s face.” ard’s] [Sarvis’] FACTS. Hughes testified that he observed Sarvis torturing and the Leonard deceased. will While we state additional facts in Hughes further Leonard testified that the discussion of contentions to the going Rudd, told him he was to kill and they especially pertinent, which we he observed Leonard take a butcher begin general with a of the case. outline knife from the bedroom kitchen the Benjamin brutually Rudd was robbed harassing where the victim Sarvis was apart- and murdered in his basement Hughes sculpture awith knife. also tes- St., N.E., ment Washington, at 854 21st apartment, tified that as Salters left the during evening September D.C. “they going to Salters said that were 15-16, 1970. home in a Rudd arrived kill him.” p. taxicab about 11:00 m. When he left standing cab, group young men and their de- Sarvis Leonard based across the street Rudd called him. separate fense on Leonard testi- alibis. joined group for a minute then and fied; in effect Sarvis did not. Salters apartment, crossed ac- the street to his presence, admitted his but contended companied by two of them. Six witness- participate in the crimes. that he did not accompany- es identified one of the men testify. didHe ing Rudd as the defendant Leonard. Three witnesses identified the other II. apparently the defendant Rudd Sarvis. refuge IMMUNITY sought AND ACCOMPLICE felt threatened and apartment Virginia INSTRUCTIONS neighbor,

of his Eventually, Gaskins. Rudd was coaxed highly incriminat In addition to apartment hallway. out into the Hughes, ing testimony and both of Jones obviously accomplices, a of whom were point, At this men identified the two government’s portion Rudd; substantial as Sarvis and assaulted Leonard who were evidence came from witnesses down, him took his Leonard knocked partici involved, dragged onlookers or keys wallet, either as him into and young group men pants, apartment. Then, mem- about six allegedly vie began killed the plunder members group whose bers immunity apartment.6 requested instruction. ransacked tim During police investigation, Jones it offered to instruct tes- While knowledge timony Hughes, Hughes denied of Jones and who testi- first grant crime, immunity, com fied under a “is to later admitted their but plicity agreed cooperate. scrutinized and evaluated same granted immunity pur government other both manner as the all case,” during (Supp.1973).7 witnesses testified suant to 18 who U.S.C. § gave only Hughes fact, Thus, both court Jones and testified district accomplices im tes- and under a standard instruction as witnesses’ munity. timony the im- and failed to mention Hughes. Sar- mune status of Jones specifical- Neither nor fail- vis and error Leonard claim ly requested in- the district give accomplice ure or an either an jury testimony of struct immunity instruction. Hughes Jones and should be received they because accom- A. can be no but caution There doubt plices; rather, requested accomplice instruc- instruction would have admonishing proper, because, tions to receive been in Crawford v. 183, 203-204, this evidence with caution because Jones United Hughes granted 260, 268, (1909), L.Ed. 465 immunity.8 Supreme The district court denied Court held group requested Included in were witnesses Sarvis’ instruction was : Montgomery, King you and Mauldin. The testi- this ease observed that certain mony Montgomery govern- testifying indicates that left witnesses on behalf of the group they granted immunity open before went to the victim’s build- ment have been in ing, King that and Mauldin went to the court. building, reports persons observed and heard about What this means is those to happening inside, go immunity granted what was but not did whom any way in has been will not punished anything inside. be for which they may have themselves done on the occa- infra Part VII. investigation. sion under requested grant immunity 8. Leonard’s instruction was: This does not mean that case, testimony exempt prosecution In this there is of two wit- are witnesses from nesses, Hughes, you perjury which, know, Mr. and Mr. Jones who tes- consists of — immunity. type deliberately telling tified under mony This of testi- a lie while under oath or accordingly is rare and the Court will affirmation. give you special respect However, grant immunity a instruction with to reflect does government it. the fact a has made sovereign policy prosecute per- As the power the Government has the decision not to these grant immunity right arguably prima to and the to sons whom a has persons use as witnesses those to whom the facie case because it is felt more will be immunity granted. gained having testimony has been from their than will testimony gained attempting proceed This should be with viewed caution with- testimony. and considered with care. You are to deter- out their jurors hereby mine whether to believe these witnesses and in You as this case are in- you may, considering the extent to which be believed structed that weight in is, you may given testimony any —that believe all of their testi- to be to the mony, testimony immunity some of their or none of it. witness granted, keep as to whom has been give weight your You should it such in delib- in mind the fact wit- you fairly cumpulsion eration as think it is entitled to ness is under some to tes- [sic] tify receive. and that has a witness vital interest you trial, wit, pres- If believe these witnesses testified be- the outcome of the self punishment hope cause of a fear of of re- ervation. you may disregard testimony liberty, however, give ward You are not at you entirety. If, hand, underlying be- other more consideration to the factors testimony witnesses, you immunity grant lieve the of these than other fac- along merely should consider it the other evi- tors in the case because those fac- determining immunity dence the case in whether or tors have resulted in a guilt beyond given is established a reasonable witness. doubt. evi- tion who turned “state’s has not been like a witness extended to a case nonaccomplice dence” the instant one where tes- timony accomplice corroborated the tes- an ordi- is not taken as that of to be timony and was sufficient itself good nary in a character witness serve as basis conviction. Thus generally case, is whose Tillery, plain where court found er- supposed prima facie to be correct. ror, virtually government’s all contrary, of such the evidence On upon accomplice’s case rested testi- ought received with a witness to be mony, accomplice changed his testi- greatest suspicion, care mony prior several times to trial to ought caution, and to be extent that the court characterized it as passed upon under the “extremely unreliable, not incredible if governing ap- same rules other and (Id., and insubstantial” F.2d at parently credible witnesses. 648), factually case was close.10 accomplice has characterized The Court Similarly, McMillen, plain error was “inevitably suspect” noticed where the court in- district States, Bruton unreliable. pre- structed as to the now discredited L.Ed.2d sumption truthfulness, “[t]he Lee See On v. United connecting . . . [defend- States, 747, 757, 72 S.Ct. ant] with the came [crime] 96 L.Ed. 1270 from the mouths involved in of others haveWe no doubt that escapade,” were not and “[t]hese practice better sponte for a district sua accomplices paid price who had their jury concerning to caution the an society and were carrot or free from accomplice’stestimony, and that it re stick.” 386 F.2d at 36. See also United give request versible error to refuse to Evans, States v. 163-164 accomplice ed Freed instruction. Unit (3 1968). U.S.App.D.C. 392, ed 266 F. By contrast, ease, in the instant non- (1920). However, neither defend accomplice testimony corroborated the requested accomplice instruction; ant testimony accomplice significant ato ex- object did nor either to its Rule omission. against Leonard, tent and to a lesser ex- 30, F.R.Cr.P., appeal the claim on bars against Leonard, tent Sarvis. As to give unless the district court’s failure to substantially four other witnesses cor- accomplice an “plain instruction was er testimony roborated the of Jones ror” in the circumstances this case. Hughes. While three of these witnesses 52(b), Rule F.R.Cr.P. onlookers, they were at least did not give accomplice That the failure to participate an robbery or murder may, exceptional instruction in certain accomplices. Gaskins, and were not circumstances, plain neigh- constitute error has witness, fourth was the victim’s recognized among way circuits. bor and inwas no connected with Tillery (5 States, v. United group. 411 F.2d 644 the miscreant One other wit- 1969); Cir. States, ness, McMillen Although v. King, United identified Sarvis. cert, 29, (1 386 F.2d 1967), King “hang 35-36 group Cir. did around” with denied, 1424, 390 U.S. 88 20 S.Ct. apart- to watch from outside of the the-, (1968).9 recogni- L.Ed.2d 288 building, King But such participate ment did not Compare States, subsequent arising Williamson v. aggra- United 332 10. In cases on less (5 1964) ; F.2d 123 Evans, facts, Cir. United v. States vated the Fifth Til- Circuit has found (3 1968) ; lery 398 controlling: F.2d 159 States, Cir. not Davis v. United Johnson, (7 United v. (5 States 1969) ; 398 F.2d 29 411 F.2d 1128-1130 Cir. 1968) ; Jones, Cir. United States v. County, 425 F.2d McDonald v. Sheriff of Palm Beach cert, (9 Cir.), denied, Fla., 1048 (5 1970) (Per Cir. (1970) ; Curiam). 27 L.Ed.2d 51 Smith, United See United States v. Holt, (8 1970). (4 States 1972) (Per F.2d Curiam). F.2d 12 Cir. he, looting apartment, upon so that in Rudd’s rule court trial re- quest accomplice. too, not an should instruct caution with re- gard testimony paid to the informers: course, Hughes un- were Jones Of informers, accessories, to some extent use of der carrot stick ac- trial, changed complices, friends, they before their stories false or casting thereby betrayals their some doubt on other “dirty which are busi- credibility. They from did so once questions ness” raise serious admitting guilt; claiming credibility. innocence to they To the extent Tillery do, but, accomplice unlike in who a defendant entitled broad to changed times, story probe his four their be- latitude credibility by cross- extraordinary does havior was not examination and to issues disposition pre- jury the same evince submitted with careful in- prompted in varication which structions. Tillery heavily accom- discount paid Like the informer who plice’s testimony. Moreover, jury pecuniary has a testifying, interest in or pre- was not instructed that were accomplice penal who has a interest regard sumed truthful. Both with shifting guilt cohort, to his a witness Sarvis, Leonard and we conclude granted who has been immunity has an accomplice the omission of the instruc- incriminating interest another to save plainly tion was not erroneous. McMillen, supra. himself. Typical Cf. B. Defendants’ there contention that ly, government case, offers spe error the refusal .was immunity to a lesser or minor co-con regard cial instruction testi to the spirator, accomplice, who stands mony govern witnesses to whom the jeopardy being convicted, as an incen granted immunity, ment stands on a has testify sig tive to others more footing requests surer because nificantly potential involved. witness, A have not made refused. Defendants confronted, so pro realizes that he can cited, found, any nor have we ease which cure own incriminating freedom holds that is reversible error to refuse another, and therein lies his motivation requested immunity instruction. falsify.11 hold, therefore, We that the analogous However, persuasively we find district court committed reversible error court, requiring the rule the district refusing jury to instruct when re upon request, to caution quested, to consider with caution the paid informers should Hughes, impor Jones and circumspection. received with government tant witnesses who had been U.S.App. Fletcher United granted immunity prosecution. (1946); D.C. addWe that we be un Masino, (2 States 133 saying that, retrial, derstood as if 1960). v. Kin See United States request Sarvis and Leonard an instruc nard, U.S.App.D.C. 386, regard tion Hughes with to and Jones that their is to be viewed with Lee, they In On at U.S. S.Ct. caution both because were accom plices they the Court rationale grant- articulated the and because have been Although prevarication government (1972), pros the incentive to is is still free to perhaps greatest prosecutor witness, testifies, long first when ecute the after he protection immunity, prosecution afforded the offers as the is not based on the wit grant immunity testimony. 24-26, witness the actual ness’ nn. See infra. The necessarily government eliminate that incentive. does not therefore retains its “carrot and government falsify transac cannot stick” Since and the witness’ incentive immunity pursuant supra. McMillen, course, § tional to 18 U.S.C. continues. Of Cf. compul case, alleged and under in is no constitutional is the district Kastigar so, granted erroneously sion to do United court transactional im munity. 32 L.Ed.2d Part VIII. infra. prosecution, they dispositions immunity either to will the Defendant ed Rath- or to counsel. double instructions. be entitled merge both er, court should the district previous fact, day, As- another single requests that the into a instruction Attorney ad- sistant United had States Hughes to be and Jones government vised Jones’ counsel they are caution because scrutinized willing accept plea would be accomplices have been because guilty to one misdemeanor in either case immunity. granted and would ask the court to dismiss the charges. other ately Jones’ counsel immedi- government’s

advised Jones of the offer while was in the Jones witness III. waiting testify govern- room for the in ment this case.13 Jones testified FELO- IMPEACHMENT —PENDING government on voir dire the next NY CHARGES. day and at in trial later the week. He in also error find reversible previously We govern- had testified for the ef limitation of the court’s the district grand jury. ment before the cross-ex forts of Sarvis trial, attempted At defense counsel concerning unrelated two amine Jones by asking cross-examine whether Jones charges pending felony which were government any disposi- had made dire against voir Jones’ him.12 Prior to charges pending tion of the unrelated Nesbitt, testimony, the Assistant Mr. against him. The district sus- Attorney prosecuting the States government’s objection, tained the rul- coun case, court and defense advised the ing that the defense had no factual basis charge robbery narcotics sel questions. for this line of It further in- charge currently pending disregard structed the defense then in Mr. Nesbitt Jones the district. questions counsel’s because the defense good in represented, absolute no doubt proof any disposition had no faith, that: ruling been made. The district court’s effectively foreclosed the defense from in touch with either I have not been unearthing establishing any factual any stage proceeding of the counsel arising basis for bias or self-interest out your [against Honor, Jones], and have pending charges. Undoubtedly, myself, representation made no ruling the district court’s based regard cases, disposition of these government’s misrepresen- innocent knowledge, my Kleiboemer and to Mr. tation. Attorney United States Assistant [the charges] prosecuting generally never It has the other been held that a wit- regarding any representations “may ness’ made self-interest or bias be shown append a text of the 12. At the outset we word about errors discussed II Parts present purposes, IV. For correlation the issue discussed we decide in this Part III Part III and that contained Part II. the limitation on Jones’ requisite conjunction instruction discussed in cross-examination Had the with the given, unlikely other II been that we errors warrants reversal Part a new trial. the error discussed would conclude would, standing alone, III be of this Part light 13. These facts did not come to until magnitude sufficient to warrant reversal and They after the trial. described an af Perhaps of a new trial. is un- by fidavit Jones’ in the counsel narcotics likely also, suggested by one of defense case, which has been submitted to this court. argument us, before if the counsel government dispute The does not the factual limitation cross-examination Jones representations affidavit, and we treat pending felony charges unrelated about them as true. See United States v. Kear only error, it would warrant reversal ney, U.S.App.D.G. 328, 170, 136 420 F.2d and the award of a new trial. The cases (1969) ; 173 n. 4 M. & Steinthal v. Co. Sea come to us with the error discussed mans, U.S.App.D.C. 221, 1289, 147 455 F.2d having (1971). Part III been committed the eon- 1294 14n.

90Q in a criminal case when the exploration have allowed full of these witness testifies the state and it is matters on cross-examination. pending shown that an indictment 275 F.2d at 132-133.14 against him, accomplice or that he is an permissible scope explo The or co-indictee in the crime on trial.” McCormick, ration on cross-examination (Cleary is not cur Evidence 40 ed. § explicit (footnotes govern tailed 1972) omitted). Masino, absence promises leniency, ment for the de government court reversed where the district attempt fense to show court had barred defense cross-examina- might prosecution “conduct which led tion a witness of two witnesses con- cerning prospects to believe his for lenient the recent dismissal narcotics government charges depended treatment The them. court’s rea- degree cooperation.” soning quotation, Unit warrants some length: ed Campbell, 547, v. States 426 F.2d 549 (2 might 1970). reasonably Cir. Jones When a in a criminal witness case is have surmised that there was some con being questioned possible as to his nection between his in this testifying falsely motives for wide lat- government’s offer, cas'e and the arriv itude should be allowed cross-exami- ing waiting did while he was highly nation. ... rele- It was testify in this case.15 bring vant and material out that The defendants were entitled . . . [state criminal] given broad latitude their effort to charge quashed had been impeach government credibility upon the intercession the Assistant witnesses on Alford cross-examination. Attorney. United States States, v. 687, United 282 U.S. 51 S.Ct. This is the kind of situation where 218, (1931). 75 L.Ed. 624 The district possible the widest cross-examination ruling severely court’s and instruction permitted. appellant should be circumscribed counsel in defense this re jury was entitled to have the know gard and error. therefore reversible happened respect what had conclusion, Since we reach this need we including charge, any part which independently prejudi consider the representatives government government’s cial effect of the erroneous played, so that could draw its good representations but faith to the respect possi- own conclusions with Compare court and defense counsel. ble motives testimo- [the witness’] Giglio States, 150, v. United 92 U.S. ny. witness that was a matter so sify ernment which [the [T]he ^[******] and his witness’] indictment relationship the trial court should possible motives to fal- had called intimately to the him as its disposition related to Williams, gov- 79 S.Ct. United States v. 1972). Cir. (1963); Napue 1972); 83, 763, 83 S.Ct. 459 F.2d 31 L.Ed.2d 104 also United 3 L.Ed.2d 1217 v. Brady Maryland, Hykel, 1194, Illinois, States 763, v. 10 L.Ed.2d ex 360 U.S. (1972) F.2d rel. (3 Dale v. Cir. (3 Accord, Padgent, United v. 432 F. States 89 S.Ct. 22 L.Ed.2d 297 (2 1970) ; Hughes 2d 701 Cir. v. United States, (9 1970) ; Cir. Unit Murray, ed States v. 1174- 15. Tlie fact that Jones had received immuni- (3 1971) ; ty States, Cir. sup- Grant neither detracts nor adds from our (5 1966). Wig- position possible 368 F.2d 658 Cir. See 3A as to the effect on Jones of more, (Chadbourn government’s point Evidence 967 n. 2 rev. § offer. The appellate is that 1970). Amabile, jury, But court, United States the permitted not an should be cf. (7 1968), 395 F.2d 47 vac. on other to make this determination on grounds thorough sub nom. Giordano v. United basis of a cross-examination. alleged impli- out-of-court statement IV. cating proceeds defendant, to the LIM- IMPEACHMENT —IMMEDIATE testify favorably con- the defendant to ITING INSTRUCTION. cerning underlying facts, the de- the requiring rights pro- rever final error no has been denied fendant during Leon trial arose sal and a new tected the and Fourteenth Sixth testimony in behalf. On ard’s cross-examination, his own Amendments. prosecutor asked the could have cross-examined Since Sarvis told arrest Leonard he had whether Leonard, of Leonard’s the admission ing the “other man”—Sar officer that concerning testimony Leon- the officer’s Leonard across the street. vis—lived alleged extra-judicial statement ard’s making unequivocally denied transgress not confrontation does govern rebuttal, On statement.16 supra. O’Neil, clause. United States arresting who ment called the officer 1972). Wing, (8 Hawk 459 F.2d 428 Cir. testify, permitted was over Sarvis’ Bruton, supra. Cf. the al objection, Leonard made testimony con- The officer’s rebuttal leged Again over to him. statements tradicting admissi- Leonard’s denial was objection, prosecutor then Sarvis’ solely impeachment however, evi- ble, as long engaged arresting in a officer jury it as not consider dence. The could detailing colloquy events of Sarvis’ against Leonard, or substantive arrest. respect any Sar- whatsoever court Sarvis contends that district limiting request a did not vis. Sarvis admitting testimo- erred the officer’s immediately offi- after the instruction statement, ny alleged about Leonard’s testimony did and the district court cer’s testimony ad- and that even if the was give charge, the district one. In in fail- missible the district court erred general jury in did instruct court ing jury immediately to instruct giv- effect to as to the limited be terms solely pur- that it admissible impeachment After en evidence. pose impeaching Leonard’s credibili- requested charge, district court’s Sarvis ty. re- further Sarvis contends that advising the an additional instruction mainder of the officer’s voluntary jury apply confession “[a] improper and irrelevant.17 only against defend- admission” making it, ob- sub- did not otherwise ant but Defendants’ first contention is O’Neil, ject. re- stantially denied the The district foreclosed Nelson v. 622, 629-630, quest. 91 S.Ct. (1971), held 29 L.Ed.2d which firmly circuit, es- In this it has been tablished that when evidence admitted impeaching purpose where takes the stand limited a co-defendant making defense, witness, plain error, in the in his it is absence own denies separately Leonard, you Although fact, Leonard as- Q. Isn’t it a Mr. as does you brief, leaving apartment, is at sert these contentions in his stated effect, you apparent if error occurred it was “Aren’t once officers words to the prejudicial Leonard, so, going get if not man?” more the other Isn’t case, unre- than to This is so because Sarvis. sir? A. stricted admission of the officer’s No sir. permit draw the substan- You never said that officer? would Q. that, if there stated A. No sir. tive inference said, fact, participated sir, man Q. Isn’t officer was another who you crime, degree guilt respond- admitting “What man?” and that lie was other some ed, part. Thus, “plain He’s wait- would “The man across the street. on his there ing Isn’t for me” —or the effect? error” as Leonard. words to See United States Canty, U.S.App.D.C. 103, correct, sir? (1972). Accordingly, A. n. 21 we will treat sir. No arguments having by both been made and Leonard.

965 ations, waiver, district we manifest will discuss them seriatim in cautioning an court to omit immediate the factual context which each arose. States, instruction. Jones United 128 v. 8(b) A. Rule of the F.R.Cr. 296, U.S.App.D.C. F.2d 300 36, 385 joinder authorizes P. where “two (Per Curiam); (1967) United v. States alleged . . . . . defendants . are 403, Thompson, U.S.App.D.C. F. 465 150 participated to have in the act or same 583, (1972). 2d n. See 585 10 United constituting . . transaction . 213, U.S.App.D.C. McClain, 142 v. States offense . . Joinder of the ..” (1971). 241, 440 F.2d 245-246 proper. three defendants was therefore Bobbitt, 146 U.S. also States v. United provides Rule 14 the district court with 685, App.D.C. 224, 450 F.2d 691 grant a discretion severance “[i]f no There indication record is appears that a defendant ... purposefully Sarvis or Leonard waived prejudiced joinder . .” a . The district court’s instruction. 14, Pursuant the mandate of Rule general impeachment evi instruction on judge continuing duty “the trial a at has long dence, very buried it was as stages grant all of the trial sever- charge coming of a the end prejudice appear.” ance if does Schaf- pro trial, adequately three-week did not States, 511, 516, v. United fer 362 U.S. gave rise to tect interests which (1960); 945, 948, 80 L.Ed.2d 921 S.Ct. 4 limiting purpose served rule. U.S.App. Wilson, United States 140 v. particularly salutary in a instruction 220, 494, D.C. 434 F.2d 499 joint here, where, jury trial as “great possessed Since district court evidence, re even as consider respect grant to the discretion” with against stricted, In one defendant. severance, of a denial its decision will be Nelson, trial the court noted only upon an reversed ing affirmative show- judge jury con had cautioned not to clearly that the abused district sider evi one defendant the this discretion and that a defendant prior dence extra co-defendant’s prejudiced thereby. United States judicial 624, 91 statement. 402 U.S. at Gambrill, U.S.App.D.C. 72, F.2d 146 449 Wing 1723, S.Ct. 29 L.Ed.2d 222. Hawk 1148, (1971); Wilson, 1159 F.2d at gov to note after careful reviewing exercise rebuttal ernment’s witness testified discretion, district court’s this court has prior one defendant’s state inconsistent approvingly concluded that bal- “[t]he ment, judge trial cautioned joint ance has been struck in favor concerning impeachment character .,” Hines, trials United States v. testimony. of the U.S.App.D.C. 1317, 249, 147 1334, F.2d cert, 975, We therefore conclude admission denied, U.S. testimony concerning quoting (1972), Leonard’s 32 L.Ed.2d 675 alleged prior Krechevsky, inconsistent statement United States v. 291 F. without an immediate limit- Supp. (D.C.1967). instruction This re- ing impeachment admissibility strong favoring policy flects federal purposes requires joinder reversal of both Sar- because it vis’ and Leonard’s convictions. expedites jus- administration

tice, congestion of reduces the judicial time, dockets, V. trial conserves upon lessens the burden citizens who SEVERANCE. and.money must sacrifice both time upon juries, serve the ne- avoids reject We' the claim of reversible error cessity recalling who witnesses in the district refusal court’s upon would otherwise be called to tes- repeated defendants’ motion for sever- tify only once. multiple Each ance. defendant advances arguments Hines, quoting bolster contention. 455 F.2d at Parker setting general (9 After out States, some consider- United cert, 92 S.Ct. denied, 89 v. Cir.1968), 1188, (1972). (1969). L.Ed.2d And the 235 See 31 782 1602, 22 L.Ed.2d S.Ct. 739, specifically instructed the States, F.2d district jury 169 Rakes v. United cert, guilt 826, denied, determine the or innocence (4 Cir.), U.S. 335 744 only by considering (1948). each defendant 51, L.Ed. 380 69 93 S.Ct. which his own conduct and he that was contends B. Sarvis applied Finally, to him. the verdicts required, was prejudiced, severance and jury demonstrate understood that against government’s case because obligation and fulfilled its under damaging more was co-defendants his charge. against him. witness Six that the case Both and Leonard contend was one C. Sarvis Leonard that es testified apartment, prejudice requiring re- that severance the victim’s entered men who Hughes, apparent Jones, only and sulted from the conflict be- while three — hand, placed Al King similarly tween their defenses the one Sarvis. — hand, in the and on the though confusion Salters’ other and also there some and witnesses between their defenses. Sarvis and other of these separate concerning clothes, three wit Leonard relied on alibi defens- all Sarvis’ unequivocally presence, identi firmly es. admitted but Salters his nesses killing. hypothesizes participation denied in the Sal- trial. fied Sarvis Sarvis weight prosecution disparity testify, did in the but wit- to this ters due that may Hughes per- jurors have nesses and Mauldin were evidence, against testify permitted his co-de mitted to that said at the the evidence Salters scene that and Leon- their consideration crime Sarvis fendants to cloud recognized guilt. victim, ard had knocked out the This court has his tearing apartment apart, disparate quantum his and were of evidence “a against going closing argu- may co-defendants to kill him. each two ment, emphasized require conceivably under counsel for Salters a severance participate circumstances,” the evi did not some but if Salters “ damag killing by referring against perpe- often ‘far more dence one ” 1159; ing.’ “they,” implication, Gambrill, 449 F.2d at trators as with the according U.S.App. Leonard, States, 130 Sarvis McHale United v. cert, denied, 163, 757, pronoun “they” pointed 393 Salters’ ac- 398 D.C. cusing finger 985, Finally, 462, L.Ed.2d 447 89 21 them. urges that Sarvis’ efforts to discredit placed which him with Although placing Leon- the evidence undermining Leonard had the effect of quantitatively ard at the crime was both Leonard’s alibi defense. greater qualitatively evi- than the against rely disparity heavily Sarvis, dence does Defendants Rhone v. U.S.App.D.C. damaging” the “far more test. United 125 (1966), meet F.2d recognized The evidence was both where this court compelling. substantial and It that: inconsequential part no sense an trial, Prejudice joinder defendants a rela- swallowed tainted de- arise . where the tively overwhelming mass of evidence present conflicting and irrec- fendants against Leonard. United States Cf. there is a dan- oncilable defenses and ger Cir.1965), Kelly, (2 349 F.2d jury unjustifiably in- that the will cert, denied, 86 S.Ct. demon- fer that conflict alone record, On L.Ed.2d (Empha- guilty. strates that both jury expected “reasonably could added). sis compartmentalize evidence as States, 308 F.2d DeLuna v. United separate relates to defendants.” United Cir.1962). Subsequent cases (5 (3 DeLarosa, 450 F.2d 1057 States cert, “alone,” conclude the word Cir.1971), nom., stress denied sub Jones independent closing argu- “they” evidence of each where word guilt jury’s supports plainly prejudicial ment defendant’s constituted er- verdict, necessarily 52(b), Thus, the conflict does not ror. Rule F.R.Cr.P. prejudice to the extent cannot be the defendants said that the conflict between to sever a district court’s refusal defendants’ alibi defense Sal- danger must be considered a clear abuse dis ters’ defense created a serious Hurt, upon cretion. States v. 155 U. would seize it alone S.App.D.C. (1973); dispositive guilt. as the indicia of 500; Wilson, F.2d at United States danger The that con Salters’ Robinson, U.S.App.D.C. 286, 432 flicting seriously might defense Hines, (1970). F.2d F.2d See prejudiced was, Leonard Sarvis and Project on But ABA 1333-1335. cf. however, by exacerbated failure Salters’ Jus Minimum Standards for Criminal inability testify consequent to and Severance, 2.3(b) tice, and Joinder § Sarvis and Leonard to cross-examine conflicting spectacle The Wilson, him. In Hurt the court emanating and veiled stories accusations reasoning based some extent its to from the defense no adverse table doubt de fact defendants whose ly How affected defendants’ defenses. fenses conflicted all testified and were ever, the alibis of Sarvis subject to cross-examination. by solely were not contradicted Salters’ government presented defense. The Gambrill, joint one defendant in a independent incrim substantial proffered trial two witnesses tes- whose inating Moreover, and Leonard. Sarvis timony provided de- alibis both the government’s much of the evidence came fendant and his co-defendant. The co- group who, from other members of wanting defendant, him- disassociate Salters, during present like were self from he what considered to be a Hughes, commission of the crimes. patently sought alibi, incredible and ob- King Jones, Mauldin and all testified tained an instruction from the court they present were and observed testimony which limited the alibi testimony some of the The events. proffered defendant who the witnesses. impact these witnesses diminished This instruction had the effect of im- signifi Salters’ defense which derived plicitly impugning proffering de- mainly implication cance from the alibi, fendant’s he an effect could present he was and observed Sarvis dispel because co-defendant’s failure Hughes Leonard. Mauldin and did testi testify precluded cross-examination. fy by to statements which in Salters Although the court reversed on another criminated and Leonard. And Sarvis suggested ground, if a similar reasons, for obvious counsel for Salters problem remand, arose on the district join vigorous objection did not grant court should a severance. 449 F. hearsay Sarvis Leonard to his testi 2d at 1161-1162. mony. But, shown, as will be though might Even a district court hearsay testimony would have ad been properly exercise discretion in these its even missible if and Leonard had Sarvis grant severance, circumstances separately. Hurt, supra; tried See refusal to do so here not a clear Wilson, 434 F.2d at 502. damaging abuse im- of discretion. The plications Neither Sarvis nor Leonard ob defense of Salters’ cor- were jected closing argument by by to the coun roborated substantial sel Salters. He did similarly not refer to the several situated witnesses. inability other defendants name. With ev The of Sarvis and Leonard establishing idence that at six men least cross-examine did Salters thus not cre- group were in prejudice which ransacked the ate such the district apartment say victim’s we cannot court’s refusal their motions unvariegated emphasis Salters’ counsel’s for a severance constituted a clear abuse cert, denied, (1957), 78 S. defendant “[T]hat of discretion. Mc acquittal 2 L.Ed.2d 415 might chance of have a better Ct. Wigmore, 297; supra, su Cormick, separately § not establish if tried does pra, 1749-1757, right Wilson, §§ to severance.” Hughes may properly of Mauldin and at 501.18 under either of these have been admitted Hughes Mauldin D. Witnesses exceptions. testify permitted over objections and Leonard of Sarvis and Leonard contend during statements made Salters could not cross-examine that since incrimi- Salters, of the crimes which their admission commission co-defendant The dis- hearsay testimony and Leonard.19 vio nated Sarvis of his statements apparently right Maul- admitted trict lated their sixth amendment testimony only purpose required for the din’s confrontation severance. proving They rely primarily made statement that Salters on Bruton v. United prove joint States, supra, and not to the truth of Salters’ in a which held that ruling statement, although trial, of a defend where confession gave explicit only against no without confusion and it him and ant admitted point. testify, The district instructions on this he did co-defendant’s not Hughes’ apparently rights testi- admitted constitutional ly were not sufficient excep- mony by cautionary protected under rather nebulous a instruction. gestae.” tion termed “res The Court reasoned: because the substantial risk hearsay exception The to the jury, despite to the instructions contemporaneous rule for declarations incriminating contrary, looked to the partake is often sub which of the event extrajudicial in determin- statements gestae, sumed under the of res rubric ing petitioner’s guilt, admission recognized increasingly excep and is an in this confession [the] McCormick, supra, 298. See tion. § right joint petitioner’s trial violated 512(a); Model Evidence Rule Code of by cross-examination secured Proposed Federal Rule of Evidence Confrontation Clause of the Sixth 803(2). Similarly, gestae often is res Amendment. recog generally to refer used to another at 391 U.S. 1622. The S.Ct. at hearsay exception nized to the rule for dangers Court focused on the raised spontaneous excited ut declarations or Murphy powerfully incriminating terances. Ball, Auto Co. v. Parts where the U.S.App.D.C. 416, extrajudicial statements of a code- 18. It 19. Mauldin testified: McHale, 398 F.2d at 758. Leonard “were time.” Other far. joint All should be they course. But he meant ey Well, was about all. you know, ment at the time. “they”, those that went were trials he so tearing well be that [Salters] ^[*] granted how those doing are so just established that they up who . took it Hs almost just . were great were in. He [no] apartment apartment. was apartment dangers looking as a sk case granted telling matter of just severance goes for mon- at ^[*] about, apart- these what That said Ilughes some clock and some clothes under he said that victim] Mr. Rudd was asked him where did he pening no cause he knew their faces. A came apartment, He [Sarvis] Hs couple . alternative, [Salters] money. out, —what testified: they building out, of minutes later Francis Salters So, H* and had were came Irie knocked Bennie he said I because if with a going asked him what was they & out of the entrance going [Leonard] going to call the dragged shopping bag, were they get on? Hs it from? So him let looking didn’t have So, [Rudd, it. kill police him into the he said Jimmie and a ISo hap- him. live, way be- side-by- fendant, ments issue were admitted under accused who stands arguably recognized hearsay excep- defendant, deliber- with the side joint spread The ately in a tion converse before .... is equally merely true: because evidence are the incriminations trial. Not long-es- devastating their to the defendant but is admitted in violation of a suspect, inevitably credibility hearsay does tablished not lead rule is unreliability ev- con- of such to the conclusion that . The automatic rights intolerably compounded when idence frontation denied. is here, accomplice, alleged does 155-156, Id., at 1933. at 90 S.Ct. testify tested and cannot be Supreme applied this Court cross-examination. Evans, emerging in Dutton v. doctrine Id., 135-136, 88 S.Ct. 27 L.Ed.2d 213 incriminat- Salters’ statements Dutton, (1970) (plurality opinion). ing, fifth himself of his he availed hearsay the statement evidence of But, right testify. amendment co-conspirator the de- incriminated which Bruton, Salters’ unlike confession and the co-con- was admitted fendant all statements were admissible spirator testify. The did not recog- generally under defendants pursuant to a state admitted hearsay exception rule. nized hearsay exception co- for statements expressly Significantly, reserved Bruton conspirators the termination made after this issue: conspiracy. concluded Dutton therefore, us, There not before exception application “in the of this hearsay recognized exception to the did not vio- this case circumstances of petitioner concerned rule insofar as Id., at 91 S. late the Constitution.” no view whatever we intimate distinguished The Court Ct. at 219. necessarily exceptions raise that such grounds: (1) Bruton Bruton on three questions the under Confrontation joint while the defend- a trial involved Clause. alone; (2) Bru- tried ant in Dutton was ability jurors to con- Thus, ton involved the Id., at 128 n. at 1624. only against hearsay con- the the sider Bruton not alone resolve issue. does (3) fessing defendant; in- Bruton Green, In California 399 U.S. wholly inadmissible a volved confession (1970), 1930, 26 L.Ed.2d 489 90 S.Ct. hearsay against while the one defendant Court addressed constitutional de- was as to admissible Dutton presented by the issue admission plethora The discussed a fendant. Court trial, hearsay in criminal and sus- a impelled the conclusion of factors which permitted a which tained statute state accomplice’s admission prior ex- the introduction of inconsistent hearsay not did violate statement trajudicial as substantive evi- statements (1) clause: confrontation in a ex- dence trial. The Court criminal “devastating,” but not “crucial” or was plained : (2) defendant was peripheral; was right may readily deprived confronta- While it be conceded not hearsay the co-con- issue whether rules and on the Confrontation tion statement; generally designed pro- spirator actually made Clause are express (3) quite no values, differ- the statement contained tect it is similar (4) overlap fact; thing suggest past the co- about assertion ent knowledge personal complete conspirator had and that the Confrontation partic- nothing identity of the other than a and role more or less Clause is possibility hearsay ipants; (5) of the rules of codification faulty recol- was than founded have more statement [W]e remote; (6) the statement was once violation of confronta- lection found a (7) though spontaneous; it was the state- tion values even Bruton, “inevitably suspect.” 391 U.S. opinion against The con- penal interest. Thus, 135-136, these 88 S.Ct. 1620. that: cluded hearsay were surrounded declarations reliability which indicia of These are reliability than compelling indicia of less determina- widely viewed have been in Dutton. Had these those admitted may be whether a statement tive of placed singular or critical been a declarations though there before sustaining government’s element declarant. confrontation no proof, their admission burden of Id., 91 S.Ct. at 220.20 could not trial the defendant where many reli- Although “indicia of raise would cross-examine declarant ability” the instant case Dutton issue. confrontation clause a serious readily apparent similar, it is reliability case, their But in this significant three as- differ in the cases importance dimin- and their bolstered trial, joint pects the instant case was : and corrobora- ished the substantial important, evidence was the contested eyewitness testimony presented. tive hearsay was an accom- and the declarant trial, joint ad- of this circumstances plice. however, conclude, that for We hearsay declarations mission of Salters’ do not suf- several reasons these factors clause. the confrontation did violate aggravate ficiently the circumstances Dut- that under We therefore conclude compel that the confron- the conclusion ton, did not re- the confrontation clause required in this clause severance tation case, quire even in this a severance disputed was ad- case: though have been a severance recognized generally under a missible improper. against hearsay exception all of the defendants, been and would have admis- VI. each

sible of them separately. tried Even if the defendants IMPEACHMENT—DRUG USE. separately, most had been probably Salters tried invoked fifth would have and Leonard further amendment. See Gorin United contend erred in district court cert, Cir.), (1 de- 645-646 restricting their cross-examination nied, L. 83 S.Ct. Hughes concerning Curtis his use of (1963). Therefore, Ed.2d 1052 little can heroin, forbidding them to rebut opportunity the be made of theoretical Hughes’ testimony on cross-examination to cross-examine him if the case with direct extrinsic from his Thus, setting been severed. the of a father, expert refusing to allow joint may heightened trial im- regarding general medical pact way statements, of but it no habitual, drug percep effects of use on reliability” affected the of “indicia disagree. tion. We Dutton most relevant. which considered Hughes dire, voir On admitted that he Although undoubtedly the statements week, took heroin a about once or twice impact, had dramatic were not and that this use had until the continued they disposi- “crucial” sense that beginning of trial. When asked whether tively weak bolstered an otherwise case. day he had taken heroin on the of the prosecution presented The substantial crimes, replied, he “I can’t recall.” At eyewitness testimony incriminated which trial defense counsel cross-examined hearsay Leonard, Sarvis and which Hughes concerning drug his habit. supplemented. statements Hughes’ testimony differed somewhat accomplice, testimony. was an dire Since Salters his voir He testi- reliability drugs hearsay his of declaration was fied that he had not on taken Dutton, 90-91, evidence was harmless error because But 91 S. of. so (Blackmun, concurring), unreliable it hurt where incredible that Ct. 210 J. prosecution. two Justices reasoned that admission day (1969); crime. He further he observed the 173-174 United States drugs Fowler, U.S.App.D.C. 79, not taken testified he had several months. counsel See Wilson v. United When defense Hughes attempted question then con- 34 S.Ct. 58 L. drug cerning use, Kearney, Ed. In the court effects government’s affirmed where the district court had court sustained district ruling objection, counsel deferred on this issue that defense cross-examination pending pursue questioning line of could not establishment a foundation. Hughes he first established that The court concluded: unless drugs day had used he observed judge may fairly prob- A all block rulings referred crimes. The further ing' like issue narcotics use to above ensued. prosecution’s eyewitness sole to a disarray con- The authorities are hand, murder. On the other . cerning propriety impeaching drug addiction, the matter of which showing drug credibility witness’ transgression social involves and the use: possibility illegal conduct, prop- erly approached with awareness drug as to addiction to more which so- potential prejudice jury. of the attached, many cial odium has been procedure In some cases the desirable im- decisions allow it be shown to may permitting lie counsel defense peach, even without evidence that by ques- to establish his foundation particular did in the case affect tioning hearing out of witness truth-telling, although apparently of the .... courts, particular more absent show- ing veracity, effect on the witness’s Fowler, 420 F.2d 174. the court re- would exclude it. . ex- [T]he versed conviction because the district cluding courts to have the better seem judge inquiry had blocked all into the arguments. scarcely It can be drug witness’s de- habit. The court enough contended that there is scien- “right clared defendant has a agreement judicial tific to warrant cross-examine as to whether notice addiction in itself using he narcotics at [the witness] usually credibility. Certainly affects appellant the time he commit observed pregnant prejudice. it is On the alleged Im- offense.” 465 F.2d 665. hand, increasing other there is an rec- plicit holding in this is the conclusion ognition non-legal among authorities finding qua non a sine addiction in- various further cross-examination. personality stances linked with upon other defects which do bear ruling district court’s credibility. Hughes’ scope of cross-examination is with the consistent thrust of these cases. McCormick, (footnotes supra, omit § prohibit It did not all cross-examination ted). Kelly Maryland Casualty See concerning Hughes’ drug habit, but al- Co., (W.D.Ya.1929), aff’d, F.2d 45 782 opportunity lowed defense counsel the to (4 1930); Wig 45 F.2d A 788 3 consisting establish a foundation of evi- more, supra, § 934. Hughes dence that narcotics on used recognized day propri This circuit has he observed the events. Defense ety developing drug the matter of ad counsel was unable to this establish purpose attacking, diction on foundation and cross-examination general credibility,21 ground evidentiary addict’s but his therefore had no to ability capacity drugs and to sustain the inter- observe contention that question. Hughes’ capacity events United fered with to observe States Kearney, U.S.App.D.C. 328, 136 events. Kelly, Kinnard, supra.

21. See 465 F.2d at 571-572. Cf.

972 immunity.25 concerning Hughes’ “use-restriction” Perhaps responses so-called pre- order suspect,22 error in the drug and of an Because habit were his own signature, pared district court’s dire for the his voir some extent contradicted to grant Hughes’ drug erroneously purported trans- Nevertheless, testimony. immunity26 and to Jones plainly actional Hughes. issue. We habit was collateral government concedes The a rule which would hesitate establish highly inadvertently exceeded encourage the district court would sub-trials authority. statutory Neither defend- use before its issue of narcotics sensitive 52(b), F.R. objected trial, Therefore, Rule jury.23 we conclude that ant barring error ruling Cr.P., reversible judge’s each claims defense but the trial proffer what occurred. extrinsic evidence to counsel’s testimony Hughes’ on cross- contradict they Leonard contend Sarvis and Mc- correct. examination was injured by prejudicially exces this Wigmore, 47; Cormick, supra, su- 3A § they immunity, since, grant sub sive pra, 1000-1007. §§ might Hughes mit, not have Jones recognize Finally, desirability we they they had known that if testified increasing judicial appreciation of the only legally have the benefit could drug general percep- effects of use on immunity. For this use-restriction memory, credibility tion, and the proposition that proposition and for may knowledge expert testimony issue, standing de to raise the have bring How- to this troublesome issue. States, rely on Ellis v. fendants ever, we cannot the dis- conclude U.S.App.D.C. F.2d 791 416 trict court was in error when excluded evidence, given proffer of such reliance on that defendants’ We think state of the record. Ellis, misplaced. In the district Ellis powers judicial court exceeded its granting immunity VII. under where it could grant none at all. In those circum-

law possible stances, it that the witness IMMUNITY. may testify. But never chosen government’s request, Hughes here, At have been would Jones granted immunity testify compelled fully, even if district Hughes pursuant properly witnesses Jones district court had grant restricted (Supp.1973).24 immunity. This U.S.C. use-restriction § contempt authorized the court statute Their alternative was a States, Compare part, 22. Fletcher v. United U. under ness an order issued (1946) may comply S.App.D.C. not refuse to witness supra, Godfrey privilege against Kelly, v. United order on the of his basis testimony U.S.App.D.C. 285, self-incrimination; 353 F.2d 456 but no Kinnard, supra. compelled under the or- other information Cf. directly (or any der or indi- information sensitivity Kearney, recognizing 23. rectly derived from such or oth- proper issue, voir recommends dire as information) er be used exploration. F.2d at forum for its criminal case. witness opportunity had an to estab- defendants dire, requisite immunity provides voir but “immu lish foundation Use-restriction nity compelled use were unable to do so. Kastigar derived therefrom.” provides pertinent § 18 U.S.C. 441, 443, United S.Ct. part: 1653, 1655, 32 L.Ed.2d 212 refuses, a on the basis Whenever witness privilege against self-incrimination, provides immunity 26. “immuni- of his Transactional testify provide ty prosecution in to information for offenses or other to which compelled testimony Kastigar, proceeding a a before ... court relates.” presiding person over at and the U.S. at S.Ct. 1655. proceeding the the communicates to wit- Hughes no time Jones and at of witnesses-to whom the citation. granted testify. immunity, option had Government and not refusing to allow defense counsel to argue since Defendants further important cross-examine an Government Kastigar States, 406 concerning felony charges witness then (1972) L.Ed.2d 212 pending addition, In I him. had not at the time of been decided , that, concur in the Court’s conclusion Hughes trial, might have Jones and here, the trial circumstances court thought immunity un- that mere use was rulings did err in several on nar- not its constitutional, and would therefore not impeachment.1 cotics addiction granted they have testified if had been immunity. only First, use no evidence points, however, part I com- On two imaginative supports record majority. First, pany I with cannot Secondly, supposition. we cannot dis- agree misapplication I with what see as grave potential prejudice cern plain error and harmless error stand- injustice proceedings ac- ards complice the Court’s treatment transpired. erro- The district court’s I instruction issue. assume grant immunity neous was of excessive that, retrial, request the defense will plain prejudicially not im- error which give hybrid and trial court will pinged upon rights. Rule substantial sug- accomplice immunity instruction — 52(b), retrial, Before as- F.R.Cr.P. we gested by majority.2 deal, I there- that the sume district court correct will fore, accomplice with the instruction is- granting immunity its order ob- so sue, promises because it affect the repetition viate of this contention. defendants, but because retrial of these Reversed; granted. new trial import plain of the of the error-harmless dichotomy proper

error exer- both to appellate our and cise of function Judge (concurring BAZELON, Chief duty definition of the trial court’s dissenting part part): and accuracy further the of the fairness Defendants Leonard Sarvis guilt-determining process. charged having participated in a particularly robbery, brutal crime—the My complex concern is the second here Benjamin torture and murder of Rudd. problems by raised the trial court’s trial, joint At the conclusion of their repeated denial defendant mo- Sarvis’ jury guilty of found defendants both to sever his trial from that of de- tions second-degree robbery armed bur- Leonard, fendant and of motions both glary. acquitted mur- Sarvis separate Sarvis for counts; der Leonard was convicted trial their co-defendant Salters. The first-degree defendant, murder. A third implicates denial of these motions Salters, together one tried Francis scope of the trial court’s discre- except Leonard and on all counts 14,3 tion under Rule but also both the first-degree charging murder, governing hearsay rules admission ev- acquitted. rights idence and constitutional of con- join and, arguably, compulsory I reverse Court’s decision to frontation agree process. grave I the defendants’ convictions. I have doubt failing majority correctly erred in applied trial court has to the sit- instruct the to receive with caution uation body here the doctrine re- opinion, majority can, observes, majority Part VII of we as the assume recognizes erroneously recur, trial retrial will not error purported immunity question transactional would not reach the whether Hughes Jones, independently require witnesses error would Government reversal. immunity” rather than the “use-restriction majority opinion, 2. See Part II-B of the § authorized statute. 18 U.S.O. p. supra. (Supp.1973). must, defendants Since grounds, other afforded a new trial F.R.Orim.P. obscurely, ny testimony vealed, majority in the however Su- terms — “highly preme incriminating” was, cas- Court’s Confrontation Clause toas both — wrong plainly But if I am on this Sarvis, es. even majority point, II-B, however, mistaken in I think erroneous.6 Section supposing, do, it to its majority seems holds that the trial court’s give cautionary con- Confrontation Clause discussion refusal to concerning instruction appel- testimony these cludes the issues raised of these same I witnesses, the rubric severance. lants under of based on the fact that each granted immunity court’s ac- had not conceived that trial had been testimony, to elicit his admitting in requiring Rule tions under error reversible of rise to the dimension evidence must a new trial. they may re- before constitutional errors divergence majority’s between the quire reversal. accomplice reaction to instruction is- majority’s analysis 'Moreover, use-immunity sue and its reaction in issues to rest ma- not, the severance seems course, instruction issue jor part product on the notion standard of the substance of the issues joinder efficiency of the advances contrary, themselves. theOn the two is- may process. one Whatever are, many criminal cases, sues in two sides of the proposition procedural think of the coin, immunity same since use will most may or fairness in criminal trials granted, often here, be as was to ac- sacrificed, mar- complices should even at the co-conspirators. or In such judicial efficiency, gin, to the notion cases, both instructions are aimed at joinder promote in fact effi- does substantially problem: the same the “se- ciency is, ques- convinced, I am at least questions credibility” rious raised general tionable in the demonstrably run cases testimony “informers, accessories, ac- wrong before the cases complices, Accomplices, false friends.” infra, explained II, As us. Section testifying whether grant under a of use here would hold the trial court immunity not, every or reason refusing either abused discretion its to sanitize their own roles in the events for sev- defendants’ motions exaggerate at issue and culpabili- or, alternative, exclude ty erance persons being of the tried, part hearsay from evidence the statements perhaps depict penitent themselves as Leonard and co-defendants Salters. fish, unworthy and small prosecu- attention, part tor’s prose- to win the I. and, perhaps, favor cutor’s to secure his agreement tacit opinion, forego II-A overt A. In Section their prosecution.8 majority prac Moreover, that “it is states better since his ver- sponte sion of tice for a sua events district court is consistent with the jury concerning caution the an accom Government’s view of the case and often plice’s give lie, . .” The defendant can ma it the jority Hughes testifying accomplicemay reasonably further states that suppose ap Jones, that he critical witnesses need little fear the con- sequences pellants, perjury. obviously accomplices “were goes Nonetheless, grave .”5 dangers on to These inherent give, hold that the trial court’s failure to accomplices do not render sponte, accomplice sua incompetent instruction them Any as witnesses. respect testimo would, these witnesses’ such practical rule matter, as a supra. See, g., P. 960 States, e. McMillen v. United (1st 1967) ; Phelps Cir. v. Unit supra. 5. P. 958 States, (5th ed 1958) supra. 6. P. 960 and eases cited therein. 747, 757, 7. On Lee v. United 96 L.Ed. 1270

975 harmless; impossible. many prosecutions time, In- but at the same it make does significant stead, prevent these dan- not deem so in an effort to give gers affecting accuracy accomplice the failure to an in- verdict, rely plain jury’s instructions struction was error. we on accomplices’ segregating jury testi- the majority I do contend that “good mony from that witnesses of miscomprehends principles the standard . character . whose plain error, of harmless and nor that generally prima supposed to be facie principles these are inconsistent with testimony, correct;”9 accomplices’ language contend, Rule 52. do I “ought contrast, sus- to be received with usually however, that construed very greatest picion, care and with the applied, Rule 52’s dichotomous standards .”10 and caution . contemporary blink the realities of the justice system criminal and tolerate an recognizes majority The substan- great margin excessively error identity accomplice tial between criminal convictions. immunity in this case instruction issues purpose The of the dual standards of retrial, that, two its statement on said, is, en- review as has often been merged should be into one. instructions general requirement force the that de- divergent of the two is- Its treatment object timely errors, fense counsel rests, therefore, not on substance sues affording oppor- the trial court an thus tunity immunity in- an but the fact that pre- to avoid or them and correct by requested struction was sel; defense coun- venting costs, monetary and other- accomplice was not. an instruction wise, occasioned reversal.13 The analysis premised Court’s problem, course, prejudice is that error-plain harmless error distinction set by error does not caused a defendant objection forth in an F.R.Crim.P. If evaporate simply somehow or diminish erroneously over- has been made and object. failed to because his counsel has If, ruled, then the error is reversible and example, premises ac- trial, unless, requires a under the new complice are correct— instruction reviewing rule rule, error harmless instruction, if it is true that without say certainty can with some greater significantly are chances prejudiced error de- cannot have give the complice testimony will undue credence to ac- fendant.11 If rule of return and therefore some other objection no rule was violated but may what be an verdict—then erroneous error; made, there was dangers precisely these must exist require but error does not reversal equal measure whether coun- defendant’s unless, “plain unless was error” — requested sel has instruction or not. runs, the usual formulation the error short, guilt may In cided, be de- the defendant’s prejudicial was so that reversal is re- not alone the facts and law of miscarriage quired to avoid “a manifest case, but, significant measure, by his justice.”12 Adhering princi- to these the errors and omissions counsel. ples case, majority in this concludes testimony Hughes may that the justi- and Jones There once have been some lacking weight although was not so fication, as to make think was never give immunity failure to strong, compelling an instruction defendants to Reed, (8th v. United Crawford U.S. United States v. 446 F.2d 1226 260, 1971). 29 S.Ct. 53 L.Ed. 465 Cir. See, g., respect e. to F.R.Crim.P. 10. Id. requirement general 30’s error no assigned objected as to instruction 52(a). 11. F.R.Crim.P. Currens, to below. United States v. 290 F. Grasso, (3d 1961) ; Wright, 12. United States v. 2d Federal cert, (3d Cir.), denied, (Criminal) Practice Procedure (1971) ; 29 L.Ed.2d see system guilt-determining process. consequences to the their counsel’s bear convinced, however, system in I am that the which time in a But mistakes. great formally game repre- come has to abandon majority of defendants funded, theory process no- of the criminal by counsel selected sented —the themselves, tion, terms, by but Justice Mr. Brennan’s not through the defendants justification “sporting courts,14 are this criminal trials events” matching contrary, I prosecution de- longer the wits of exists. On no fense, error-plain quests dis- error rather than for truth harmless think the guilt concerning normally applied, a classic of the accused.18 is tinction, as Responsibility for fairness of the example deterrent. of a misdirected process, accuracy of for the reasonable perhaps, the extent To considerable jury verdicts, rests, rest, not should holding re- defendant of unfairness alone, on the defense but also on inad- sponsible the omissions for and, indeed, trial court the Government.19 be remedied counsel can of his vertences plain I rule be think the error should adequate establishing as- by of standards invoked, gross merely avoid mis- not enforcing the standards sistance and carriages justice (assuming of that we alone But standards reversal.15 such recognize can such when we occasions cases, many enough. are too There defining them), of see but as means case, of omissions like which and, be, enforcing if need the district great justify a so counsel are not independent duty steps court’s to take any finding incompetency under of necessary to advance the fairness yet meaningful standard, and are suffi- accuracy place trials of the that take be- significant ciently affected to have fore it. problem be jury’s Nor can the verdict. willingness greater find met measure, course, In some this is al- plain have been when defendants error ready province. It rule’s has almost by appointed counsel, represented rather universally been held that the trial Giv- own choice.16 than of their counsel jury court’s failure to instruct the toas appel- “inescapable remoteness of en the necessary charged all elements of the of- my view, impossi- review,”17 is, late despite fense error, is reversible failure any precision the ble to estimate object.20 of counsel to also this So by a de- prejudice quantum suffered has Court held that “whenever evidence long quantum fendant, least so as this only purpose, is admitted for a limited floor; harmless error above the plain error, is waiver, manifest absence logically any event, cannot our estimate cautioning to omit an immediate much, de- whether, depend howor recently, instruction.”21 Most in United paid for counsel. fendant has Kinnard, expressed v. my States I view way denigrate plain I do not mean to that it error for the trial court adversary importance weigh jury fail to instruct vital “to States, U.S.App.D.C. Defender Public 17. Luck 14. See District of Columbia United 121 Program Report 151, Quarterly (1965). Service, on the 348 F.2d 769 Legal Representation Furnishing Indi- for Brennan, 18. Criminal Prosecution: Columbia, gents District Sporting Truth?, Event or Quest 1963 (Oct. April 1, 1973-June 1973 Quarter Washington U.L.Q. 279. 31, 1973). Coster, Project 15. 159 States v. De U.S. American Bar See United See Association App.D.C. 326, (1973) ; Justice, Providing 1197 Coles 487 F.2d Standards for Criminal Cir.), (4th (App. 1971). Peyton, 226 389 F.2d Defense Services Draft cert, denied, 80, 21 89 393 See, g., States, e. Jackson v. United (1968) ; Bar Associa- American L.Ed.2d U.S.App.D.C. 160, 348 F.2d 772 Project for Criminal Jus- tion on Standards tice, Relating to the Defense Standards U.S.App.D. 21. McClain v. United 1971). (App. Draft Function (1971) ; 440 F.2d C. see Unit- Smith, Gilliam, U.S.App.D.C. 375, States v. ed States v. (4th 1965). Indeed, majority objected acceptance It caution extreme analysis suggested above would not . because addict-informer requirement special in- undermine Rule 30’s possibility the addict’s requested, instructions be but also motive to fabricate.”22 terest give positive encouragement would it was case, I would hold In this errors, errors, counsel since al- “affecting plain substantial error —error though objected to, may well lead to in- rights” fail to court to the trial —for the I reversal. But doubt that this would be dangers concerning struct contrary, the case. think On testimony. accomplice The factors plain use of error rule would accomplice me to include lead lead to fewer rather than more errors duty independent within instruction rely appeal. noted on Rather than on those are the same of the trial court gives alone, the defense interest it First, present in and Kinnard. McClain and, perhaps important- trial court more responsibility de- of remain the it must ly, the Government a distinct in interest the factual counsel to establish fense abiding designed rules to advance the ap- predicate making instruction such an accuracy process. of the criminal And predi- propriate. once that factual But to the extent true, that it this is for- through becomes'dear, de- cate whether accuracy only proc- wards not of the judge otherwise, is “the fense efforts or ess, efficiency but its as well. put on an instruction on notice that credibility to coun- be submitted should mean, however, This does not that I part of the routine instruc- sel as of set give accomplice think failure to an in- offers.”23 tions which the trial court struction, fully by even when warranted Second, appropriateness of an ac- case, inevitably the facts of the must complice ad- instruction, like that of the lead to reversal. There remains room Kinnard of instruction dict-informer application of the harmless error limited-purpose evidence in- and the rule, goes only if the error to evidence McClain, generally of does not struction point peripheral relevant to a to the cen- particular theory relate to a defendant’s guilt tral determination of or evidence any case, depend nov- of a nor does on every corroborated material accomplice proposition el of law. When respect.25 rule, however, This is itself testimony presented, “the trial court open cautiously to misuse26 and must be prompting aware,' should be without applied in criminal In cases.27 dangers posed counsel, special to of the event, proper application the rule has no dangers that, trial,”24 fairness of here. Whatever else can of the be said long recog- above, as noted testimony Hughes Jones, agree I peculiarities If, nized. of the because majority affecting with the that errors case, preju- defense counsel discerns given the credence can, cannot instruction, dice from the he given. course, request that it not be be deemed harmless. reversing (Bazelon, concurring Judge, part itself invokes this rule Chief ground give dissenting part). an the trial court failed to limiting immediate instruction the admissibil- Kinnard, supra 25. See United States v. note ity prior of Leonard’s inconsistent statement 22, 465 F.2d at 575. —reversing Sarvis, re- as to who generally Traynor, 26. instruction, See R. quested The Riddle of Leon- but also as to Harmless ard, majority opinion, Error did not. su- who pra, text and note at note 17. See, g., 27. e. DeLuna v. United (5th 1962), rehearing de Kinnard, U.S.App.D. States v. United nied, (1963) ; 324 F.2d see also Saltz (1972) (Opinion C. 465 F.2d burg, Error, The Harm of Harmless 59 U. Bazelon, Judge). Chief (1973) ; Mause, Va.L.Rev. Harmless Id. 465 F.2d at 573. Implications Constitutional Error: Chapman Henson, U.S.App.D. California, States v. 53 U.Minn.L.Rev. p. (1973) C. 519-20 ing my analysis up,”33 an B. I Mr. Rudd occurrence cor- admit comport testimony

plain with roborated error rule does not of witness indeed, Mauldin,34 interpretation; and then Mr. Rudd’s its standard advancing enter minority apartment.35 may King in a it, I be Witnesses and Maul- one, that, Judge that, L. Hand re- din subsequently, once further testified party emerged marked, apartment,36 slim a “is from the too .rather time, according carry even under the King, But which banner.”28 he majority applied, assemblage has I effect announced standards disagree it has pre- the result reached intent kill Mr. Rudd in order to identifying accomplice inso- instruction issue vent him Leonard and applies to defendant police.37 the idence, far as issue others ev- Given this agree majority Sarvis. Hughes Jones Tillery States, the Fifth v. United finding so critical Leonard’s give held an ac- that failure Circuit complice guilt justify holding plain as to er- plain be error instruction Tillery ror under the standard. accomplice is “so critical when as to eval- the traditional caveat But I do not how this see conclusion indispensable uation use was rightly can extended defendant charge.”29 major- The part of the court’s only evidence, Sarvis. The admissible Tillery distinguishes ity case from testimony Hughes other than the and ground,, alia, there, the inter on “virtually Jones, arguably implicated that even government’s case all of the any aspect Sarvis in of the crime was testimony,” upon accomplice’s rested testimony King. of witness Sarvis “nonaccomplice testimony here while appears, however, fleeting in three accomplice testimony to corroborated King’s the. references in the course of direct against significant Leonard, extent testimony: King identified Sarvis against lesser extent Sarvis.”30 and having among group young standing correct to men I think this conclusion across the street from apartment building Four oth- Leonard. witnesses defendant when Rudd first Hughes accomplices arrived;38 King and er than the stated that he saw Sar- placed apartment;39 finally at the on the Leonard scene vis come Jones out of the night King standing of the Two of these wit- murder. observed Sarvis at King nesses, Mauldin, steps hallway and testified that bottom of accompany building Rudd to subsequently saw Leonard re-enter building.31 apartment apartment.40 Vir- redirect, Witness Rudd’s On how- ginia ever, King that Leonard my Gaskins testified said that “some of waiting building hallway thoughts getting in the of the up,” mixed apartment.32 Sarvis, Salters, Rudd left Wit- when her was in hall- King that, looking way upon ness through stated- apart- when Leonard came to the wisps front door of ment window of door.41 These of evidence building, “hold- indicating, he can be most, observed taken as Sar- Judge L. Letter from Hand to Ernst 33. Id. 28. at 442. Freund, May 1919, quoted 7, in Ernst dated 34. Id. at 638. Tradition, Freund and Amendment the First 235, U.Chi.L.Rev. 35. Id. at 445. (5th 1969) ; 36. Id. at 448. see

29. 411 F.2d Cir. 35- McMillen v. United 37. Id. at 448. (1st denied, 1967), cert, 38. Id. at 428. L.Ed.2d 288 39. Majority opinion, Id. supra, at 445. 30. 7. Transcript at'439, 40. Id. at 605.

31. Trial Id. at 601-02. Id. at 335. building finding and, per- plain clearly presence error tions for present. vis’ apartment haps, on the in the victim’s night Had the Govern- crime. n. against rested on this ment’s case Sarvis A. I that defendant have no doubt grave alone, doubt that I have prejudiced joinder prej Sarvis — properly a motion it could have survived degree compel udiced to a sufficient judgment acquittal, either on the power Court to exercise its District robbery on the counts armed count or responsibility Rule 1446 under charging murder. sever Sarvis’ trial from that of Leonard. Hughes testimony contrast, prejudice simply This not derive did directly implicated and Jones Sarvis disparity quality from the against Rudd. Jones tes crimes Mr. quantity against of evidence adduced together Sarvis, tified that he saw Leonard, hand, Sarvis, on the one hallway Leonard, Rudd in the rob majority the other. As the acknowl Hughes apartment Both house.42 edges attempted and as I have to demon they later saw stated that Sarvis Jones above, disparity certainly strate such a “standing over Rudd” bedroom agree existed in this But I ease. Hughes Rudd’s observed apartment;43 majority that, by itself, dispari the ty “cutting” with a knife.44 Rudd Sarvis great would not have been so as to jury may warrant a conclusion that the agree highly in- cannot have confounded the evidence and there criminating was, mean- support fore drawn ingful term, “substantially sense of the verdict evidence rel by the of wit- corroborated” evant to Leonard alone.47 King. contrary, I am con-

ness On the jury’s ver- problem vinced record that here is of a different but against dict the armed rob- variety. long on Sarvis no less serious has It been only bery law, and, recognized greater count in can that, a or to lesser rested— testimony every have degree, joint rested45—on the in there inheres trial marginal accomplices, support, only danger disregard jury a that the will the King. any, if admissibility, from that of The remain- bounds of however thor- oughly der of the the case were ei- emphatically witnesses in those bounds par- ther uncertain second man explained, that the ef- will transfer ticipated directly Leonard were or of fect only admissible and admitted entirely say who that unable to second as to one codefendant into the case might Moreover, against man have been. Sarvis Here I the think con- another.48 presented identity mistaken inescapable Government, alibi and clusion the that defense, supported by witnesses, three intentionally not, whether or invited the that, although impeached extent, jury engage exactly to some in this sort of inherently impermissible encouraging was not unbelievable. There- transference, fore, contrary majority, to the I con- guilty, it to conclude that Leonard if was Tillery clude that as to the guilty Sarvis eondi- then Sarvis well. must be as- 42. Id. at 697-702. . . . defendants trial may together, the court a 43. Id. at provide severance of defendants or whatever * * * Id. at 817f. justice requires. other relief may also, however, Compare, g., Gambrill, 45. The verdict have been e. States v. United product, part, hearsay U.S.App.D.C. at least evi- 1161- that, ; (1971) Kelly, dence of Leonard’s as statements F. United States Sarvis, clearly (2d 1965). inadmissible. Part 2d 720 II-A infra. States, 48. See Blumenthal v. United U.S. 539, 559-560, provides: 46. F.R.Crim.P. 14 92 L.Ed. 154 appears (1947) ; gov- If it a defendant McHale v. that prejudiced by joinder App.D.C. ernment above, As I have noted de- own be- Sarvis’ Leonard testified his ifest. When identity posed half, a series rested on Government fense alibi; mistaken although estab- questions Government on cross-examination arrest, competent presented substantial, evi- that, Sar- time of his lish having par- identifying Leonard. dence ticipated as lived across the Sarvis vis street crime, Following questions, which were with Leonard these anything exclusively Leonard to which evidence consisted almost unrelated to ad- direct, somewhat confused had testified Government arrested, accomplices by whether, mitted no means when he was asked circumstances, police: In I “Aren’t unassailable. these had said Leonard get you going conclude ex- man . cannot but Leonard’s possibly other that tra-judicial Leonard criti- the man across the street?” statement lent support case, replied he The cal had not. Govern- Government’s repeated question, to the same since well have taken ment Leonard, response.49 rebuttal, whom confirmation Government arresting officers, stronger, was far who the case called one of partner made had indeed was indeed in crime. testified question that, on think to him there is no the statement attributed Sar- alone, The officer went vis been tried highly prejudicial of this cross-examination. admission testify, response questions be- to yond evidence would rebuttal, scope required permissible reversal. following po- arrest, the Leonard’s question thus becomes whether arrest “the lice had crossed the street to here, appropriate different result of this oc- other man”—Sarvis.50 All evidence, although since the inadmissible repeated curred over the strenuous and Sarvis, properly as to could have been objections of counsel. Sarvis’ determining considered credibility majori- Leonard. The To the extent evidence was ty was, concludes that the evidence clearly admissible all—and of it some reason, admitted, properly only not—it was for the admissible reversing holds the trial court purpose impeaching, by means of failing give erred in in- an immediate prior statement, inconsistent Leonard’s limiting permissible struction use was, in his It own behalf. evidence.51 majority grants, entirely inadmissi- and, ble case had agree supposition, I cannot with the prop- he tried separately, been could not apparently underlying majority’s the erly jury. have come before the conclusion, that, immediate in had an given, prejudice struction been the governing admissibility The rules worked to Sarvis somehow have have, course, would purpose. some a The been reduced to they general tolerable level. Premised as are a calcu- on efficacy of an hand, immediate instruction to probative value, lus of on the one problem presented the here meet kind prejudice defendant, and undue to the long has the As Su other, prag- discounted. the are to the directed recognized preme in Bruton v. Court States,52 jury’s verdict matic concern that the major part United evidence admitted as to least, rest, in on reasona- effectively one the codefendant is before bly proba- reliable evidence. Here the quite likely by jury, the ambigu- and will be used highly tive value of Leonard’s all; jury, as to when the ev at least was, ous out-of-court as to statement limiting significant, idence is negligible. time, instruc Sarvis, its At the same tions, emphatic, possible prejudice however immediate is man- case to Sarvis’ opinion, Majority supra, Transcript Part IV. 49. Trial at 1439-41. L.Ed.2d 52. 391 U.S. Id. at practical matter, supposed capable prevent- “more favorable the cannot be ing respondent that cross-examina than misuse.53 by pro possibly tion could have counsel agree majority that Nor do I with the duced, had ‘affirmed codefendant] [the Supreme the Court’s decision Nelson ”56 the But that statement as his.’ is compels v. either the defendant O’Neil54 not the case the evidence of here. Given gossamer rely a this Court such guilt, the well have Leonard’s prejudice barrier from inadmissible disbelieved his denial. Yet because of evidence, at least in the circumstances of denial, effect, was, his una held O’Neil, this case. In the Court explain meaning vailable to the of his the “where a eodefendant takes stand ambiguity out-of-court statement. The making defense, his own an al- denies statement, consequent and the leged implicating out-of-court statement prejudice Sarvis, In remained. these defendant, testify proceeds circumstances, I all am not at clear that concerning favorably defendant O’Neil forecloses Sarvis’ Confrontation underlying facts, has defendant Clause claim.57 rights protected been denied no rejection But Sixth and Fourteenth even if O’Neil mandated Amendments.”55 are, however, claim, majority There critical differences think the wrong supposing between the O’Neil case and this. ends the Un- codefendant, like matter. In O’Neil, Leonard did had before Court O’Neil’s “proceed testify favorably” conviction, explic- a state criminal itly entirely presented sep- Sarvis. The two dealt with a Confrontation challenge. defenses, has, arate Clause alibi than rather a com- Court how- ever, repeatedly mon as in defense and the credi- stated that the Clause O’Neil, bility equated hearsay way cannot be Sarvis’ alibi could no and, strength Thus, supported have been rule and Dut- exceptions.58 veracity testimony. ton In refused to find Leonard’s Court Evans,59 requires O’Neil, Court said that codefend- Clause the states to comply excluding ant’s subsequent with the rule denial federal concerning co-conspirator during made matters contained in statements alleged phase” were, eonspir- out-of-court “concealment statement prosecutor’s questions, U.S.App.D.C. 53. See Sims United would been re- alone, 11 versible error Sarvis been tried 1381-1383 As Judge Friendly instruction; even said in with an immediate if States v. Boz za, point so, contrary credulity “there this is I do not where see how re- as to simply joinder efficacy of such sult follows from Sarvis’ instructions ” limiting is, any- . Leonard. A if overstrained instruction (2d 1966). thing, less efficacious This when defendant Court’s recent de joined. Enten, short, cision in and the declarant United States v. App.D.C. 162, (1973), there is no harmless error the Enten F.2d 941 va- is not to contrary. riety here, majority urge nor does There Court concluded that, challenged extra-judicial there is. because statements’ references to the defendant were 622, 1723, 54. 402 91 29 U.S. S.Ct. L.Ed.2d innocence, not inconsistent with his because (1971). 222 comparatively credibility” were “of less 629-630, 55. Id. Bruton, at 91 at 1727. than S.Ct. those in and because there was important independent evidence of the de 629, 56. 91 Id. at S.Ct. at 1727. guilt, limiting fendant’s a instruction was likely slight prejudice sufficient to cure Compare Douglas Alabama, 380 U.S. and, the defendant have suffered there 71, (1965). 415, 420, 85 S.Ct. 7 L.Ed.2d 23 fore, any “technical violation the Bruton beyond rule” was harmless a reasonable g., Green, 149, 58. E. California doubt. Id. 485 at 951. See also 155-156, 1930, L.Ed.2d 90 S.Ct. Florida, Schneble v. U.S. S.Ct. (1970). Here, in L.Ed.2d 340 con trast, I think 27 L.Ed.2d 213 admission of Leonard’s S.Ct. statement, in least the context of justi- holding, in I acy; Har- Sarvis’ case. can see no but this Justice erecting clear, amounts, concurring opinion fication for what makes lan’s practical effect, rule of to one evidence question the sense into does not call singly rule, quite tried an- vitality nor does it defendants of the federal joined necessity un- continuing ap- other for defendants for trial of its affect the purpose By der Rule 8.61 missibility of ad- plication Just as the trials.60 in federal token, rules is the same both even removes same if O’Neil cases, claim, classes of so also the rules and premise of Sarvis’ constitutional must, my whether, question their enforcement view be un- remains the there the same as well. that have or der of evidence rules established, ought be that we think that, I would hold as a matter of the duty here failed in its the District Court Circuit, law of the dis jury’s against that the verdict insure failing trict court erred in to exclude ev reliable, reasonably would rest Sarvis alleged idence of Leonard’s out-of-court admissible, and hence evidence. Fur- statement from I this trial. do not question thermore, there remains the mean the Government whether the met its re- District Court necessarily should forego have been forced to “grant sponsibility under Rule 14 against use of this evidence provide severance of defendants or Leonard. If the Government believed justice requires” whatever other relief indispensable the statement to its case prejudice joinder. when from results against Leonard, an alternative course Supreme opinion While Court’s open to it: Sarvis’ severance and O’Neil can and should re- inform our separate short, agree trial. I sponse law, questions to these of federal position advanced the American holding in its that case not control does Project Bar Association’s on Standards our decision. Justice, for Criminal Joinder and Sever When, joint trial, ance. in a although the Gov understand, I could I could proposes ernment to introduce the agree, out- with a conclusion here that of-court statement of one codefendant prejudice probative calculus implicates but admissible value I have set out incorrect above is another, that, I hold would under present —that because Leonard was Rule put the Government extra-judicial must be making denied ment, state- (1) a choice: either the statement must prejudicial its effect Sarvis (2) excluded, be implicat all sufficiently references relieved to render ad- ing must, practicable, if co-defendants missible him. Such conclusion entirely deleted, (3) be the defend forthrightly would at least deal with the separately.62 ants must be tried evidentiary problem, More would, over, prevent unnecessary course, waste of mean that the statement would judicial resources, this choice equally should be admissible were tried put to the Government in advance of alone. But once it has been determined trial. ambiguity because ambi- —an guity unrelieved Leonard’s denial— general that, am convinced as a mat- the statement was ter, only inadmissible as to prophylactic of this sort rule Sarvis, justification I see no for allow- can prevent meet Rule 14’s mandate to ing the statement prejudice come before the undue joinder, and fore- 93, 99-100, Id. 91 27 L.Ed.2d required Sarvis. Had the Government been (Harlan, J., concurring result). present trial, the statement in advance of arguably implicated Sarvis, since 8(b). 61. F.R.Crim.P. Court could have warned the Government 2.3(a) (App.1968). 62. Indeed, Section against that its admission Leonard would be may second subject of these three alternatives to the condition that the Government applicable point below, been here. I attempt As out make no whatever link to Sarvis to highly Leonard’s statement was not itself the statement’s “other man.” prejudicial, directly since it did not refer to

983 they ments, made, allegedly were, im- joinder of that stall kind of abuse mediately he had witnessed the Leon- after occurred here. The fact is that recog- standing describe, statement, a fall within events ard’s out-of-court rule, only exception hearsay that alone, perhaps, had, nized would have impressions,” slight “present con- prejudicial sense effect Sarvis’ case. such, temporaneous As declarations.65 But The Govern- it did stand alone. hearsay concerning questioning under the law of the statements ment’s assiduous were admissible as all three codefend- Sarvis’ and the circumstances residence ants, equally entirely and would have been ad- were irrelevant his arrest impeachment of Leonard. Their missible as to Leonard and Sarvis separately. necessary probable consequence, been Salters tried Because this, however, point majority “the I think the was to Sarvis correct concluding rule,66 other man” to whom Leonard’s state- that neither the Bruton Indeed, any analogue strong premised em- nor ment referred. that rule phasis placed application on Rule 14 and that Government even handed alleged evidence,67 of the federal this evidence and on law com- Leonard’s closing pelled or, statement its remarks to Salters’ severance alter- strongly suggest native, extra-judicial jury that intended exclusion precisely joint the evidence to have statements trial. effect,63 employed joinder to that it majority recognizes, however, As the produce evidence Sarvis’ inapplicability of Bruton does not guilt could have introduced that Supreme end the matter. The has Court Although I tried alone. Sarvis said violation of Confrontation think the better rule would to exclude though values Clause exist “even subsidiary Leonard’s statement and all admitted statements in issue were altogether, trial at least recognized hearsay arguably under have limited the evidence should exception.”68 question The central be- strictly necessary purposes therefore, is, fore us whether Salters’ impeachment. view, my In its failure statements were the Confron- such error, do er- so here was itself reversible tation Clause their admis- would allow majority ror apparently disre- sion in the case Leonard and gards that, opinion presume, only if the declarant Salters would allow to recur Sarvis’ retrial. at available for as to the cross-examination and, perhaps content the statements opinion, B. Part V-D of its important here, equally whether as to majority holds ad- the trial court’s fact made. statements had testimony, mission witnesses Hughes repeating Mauldin, response state- In its to this Confrontation purportedly ments problem, majority made codefendant Clause relies on a 64 require, analysis Salters did not at the instance framework of derived from the Sarvis, of Leonard and plurality opinion Supreme Salters’ sever- of the Court separate ance problem opinion trial. The in Dutton v. That rest Evans.69 presented by major part the admission of Salters’ ed in on determination not, course, primarily alleged statements out-of-court statement one of Leonard’s co-conspirator severance. Unlike defendant’s could have statement, marginal out-of-court Salters’ state- contributed in the most Transcript 63. Trial 123, 1749f. 66. Bruton v. U.S. (1968). S.Ct. L.Ed.2d quoted 64. These statements ma- supra. text at 61-62 all, prosecution’s prior way, at to the In if California v. case.70 proceeding.73 this, plurality opinion Green, Court, citing Barber, conclud Given the the said presented ed that the statement indicia “had that if the out-of-court declarant any reliability unavailable, overcome died or sufficient to was otherwise the supposition not have that cross-examination Confrontation Clause would might any way by admitting testimony have af been violated given declarant his the jury’s held, hearing verdict, preliminary fected the there the at —the right fore, protected by the then values cross-examination afforded the provides compliance At Confrontation Clause were satisfied. substantial the purposes time, however, plurality in the same the behind the confrontation re- distinguished carefully quirement, long Dutton cases the in- declarant’s give ability testimony out-of- live which evidence contained in is in no way short, court statements be deemed “crucial can In fault of State,”74 implying Supreme that in such the Court’s evaluation of Con- devastating,”71 cases, reliability depended, the courts’ estimates of frontation Clause has claims cannot, probable significance consistently Clause, be alone not extra-judicial on the adequate jury’s considered an substitute statements to the testing analysis reliability, verdict and cross-examination as a means of of their making necessity value of evidence and thus but also on the of their use— likely jury’s why more verdict will reasons the out-of-court declar- be ant was unavailable for correct.72 cross-examination at trial. Applying analysis the Dutton case, majority It facts concludes is true Evans, that Dutton v. out-of-court the information contained in declarant Sal- available alleged statements, although signif- by State, Georgia call since, ters’ icant, under jury’s law, separately part ver- he was not critical to tried for his against alleged conspiracy. Sarvis, dict that, therefore,' Leonard and Dutton thus seems no values to indicate confrontation that when the effect transgressed despite oppor- apparently lack of out-of-court statement tunity de minimis to cross-examine the declarant. and when its content and the reaching conclusion, however, In circumstances of its utterance evidence neglected majority has, think, reliability, a factor the defendant has the played establishing that has role burden a central in the Su- the declar- preme any live Court’s Confrontation de- ant’s at trial Clause would way Page, have Indeed, cisions. benefitted Barber Court his case. plurality prohibits opinion notes, held against as the use in Dutton Clause testimony given the defendant a defendant of could himself have called prior judicial declarant; proceeding at a a wit- failure to make his effort jurisdiction, to do so ness absent from the militated unless prosecution good might claim that cross-examination has made a faith have presence nullified effort to secure the at whatever force the witness’s declarant’s trial; though out-of-court and this statement was so even had.75 mean, subject however, This does not witness had been to cross-exami- appropriately same applied rule can nation at the same defendant was, according plu Analysis, 70. The statement to the nal Prosecutions: A Functional significance rality, peripheral 1378, 11, (1972). “of Ilarv.L.Rev. most. 1380 n. 87, ...” 400 U.S. at S.Ct. 719, 724-725, 1318, 73. 390 U.S. 88 S.Ct. 90-93, (Black See 400 U.S. S.Ct. L.Ed.2d 255 mun, J., concurring). 166, 1930, 1939, 74. 399 U.S. 90 S.Ct. Id. at 91 S.Ct. 27 L.Ed.2d 213. (1970) (emphasis added). L.Ed.2d 489 Davenport, 75. 400 88 n. 27 L. Confrontation Clause Exception Co-Conspirator Ed.2d 213 Crimi- and the

985 extra-judicial subject was to call as an involun- effect of Salters when the tary by neither the cannot deemed harmless. witness Government statement be by following Sarvis,77 and contrary, Barber and nor Leonard and On the this matter, because, think, general precisely Green, the was so at the as a instance I Government, compels joined of the he exclusion had been Confrontation Clause extra-judicial with Leonard and for of statements that contrib- trial. way any prose- fact is that could been ute in to the Salters have substantial testify made available case can at Leonard’s cution’s unless the Government affirmatively de- and Sarvis’ trial had own trial been demonstrate the his he, and, hence, severed and had like the other ac- clarant is cannot unavailable complices granted case, produced in the at been use be for cross-examination immunity trial; strength testimony.78 required the his and of showing depend, turn, should on the sup- Salters’ If statements be could extent to which the circumstances posed to have had no substantial effect their content of the indicate statements jury’s hold, verdict, the I would fol- reliability.76 words, In other the Clause’s lowing Dutton, that his severance and presumption in favor of cross-examina- separate required only trial were if overcome, reliability tion should be Leonard and Sarvis had demonstrated analysis only substituted, upon a show- might that his have afforded ing necessary is fair do substantial benefit to their case.79 If so. Salters’ could statements be deemed central, support prosecu- showing made, “crucial” of No such nor could case made, by Sarvis, tion’s have I been the Government following hold, would implication Here circumstances of case. alleged Davenport, supra 72, of effect his statement and would note at 1403-04. provide jury possible Compare Lemonakis, thus with the best United v. 158 U.S. States evaluating App.D.C. 162, 168-170, 941, basis for it. The at “use-restric- 485 F.2d immunity not, by which, analy terms, (1978), my tion” statute is lim- 947-949 under testify ited to Court, witnesses who behalf sis as well as that of the the death Government; is, instead, declarant, coupled to be em- out-of-court ployed “testimony reliability when . . from such substantial the out-of-court necessary implicit adoption pub- individual statements —their de be lic interest. fendant’s own statements —would favor jection re .”18 § U.S.C. 6003 (b)(1) certainly claim, (Supp.1973). And defendant’s confrontation public despite reliability prominence interest in the ver- the relative of the state quite by can dicts be forwarded ments in case. as much tes- Government’s timony by favorable to defendant tes- g., States, See, e. Coleman v. United 137 timony favorable to Government. U.S.App.D.C. 48, 616, (1969) ; 625 Moreover, strong case can be made that Echeles, United v. 352 States 898 employment compelled this by the statute is (7th 1965). guarantee the Sixth Amendment’s to de compulsory process obtaining fendants of (Supp.1973). 78. See U.S.C. § 18 6002 favor, Washington witnesses Texas, their c. v. f. explain infra, As I think I no such show- 388 U.S. 18 L. S.Ct. ing necessary showing (1967) ; If here. such a Ed.2d 1019 v. Roviaro United required, however, agree States, 53, 60-61, I cannot 77 S.Ct. implication majority p. opinion, ; (1957) L.Ed.2d 639 ell, States Pow supra, showing F.Supp. (N.D.Cal.1957), that such a would have as well impossible process been unless defendants could due considerations fairness that, general principle prosecutor have demonstrated had Salters been and “the that a they testify, severed and had him called free is not to decline to make evidence avail he not have would invoked his Fifth Amend- able to defendant.” Earl v. United privilege. contrary, U.S.App.D.C. 77, (1966) ment On the I am 364 F.2d 666 precluded (Statement Judge why at all clear that the trial court Leventhal toas he conditioning grant rehearing bano), citing admission of an out-of- would en agree- Brady Maryland, 83, 87-88, court statement on the Government’s ing immunity use-restriction 10 L.Ed.2d 215 These alleged declarant, long questions not, know, so as the defendant so far as I showing Supreme authoritatively has made substantial de- decided necessary appeals; clarant’s to rebut Court Dutton, availabil- the Govern- and because of Salters tion’s case-in-chief if agreed through severance, ity his version ment had severance Salters’ properly called the stand. at issue could had itself Salters to the events through presented jury only disagreement my suspect C. testimony, his out-of- own and that live majority with the on the severance two ex- have been statements should issues above the conse- discussed except impeachment purposes cluded, for divergence quence, major part, in in of a if had taken the stand. Salters concerning efficiency our joinder of views agree however, majority, and the I of defendants for trial polar supposed efficiency extent rules to which that that neither of these two preferred should While be when it conflicts the case before us. admis- meets with other sion cannot values rules of criminal statements be Salters’ procedure general harmless, and evidence in deemed the infor- are neither can designed protect. put point they At in mation one before “devastating.” majority thought opinion, what has “crucial” or cites be- majority however, view, grants, come the standard because state- joinder significant savings of defendants ments well have been effects verdict, they money, jury’s provided judi- time not since for system, cial participa- jurors but for substantiation both of Sarvis’ witnesses well, tion in the crime and in- balance “[t]he of Leonard’s has been struck ”80 joint favor of tent At the same . to murder victim. trials majority judicial Even time, admits, efficiency properly if as the the state- can by presented compelling be alone, defined in no means these I ments terms am reliability. though efficiency joinder convinced indicia of statements, Even greatly face, relatively exaggerated. has on their As Jus- unambiguous, repeated tice were may Marshall said dissent in Nelson v. by persons fully O’Neil trial well have and as who this case demon- good strates, savings reason obscure their own much roles in time and money through joinder in the matters with which the state- often lost “through protracted litigation ments dealt. Yet the defendants were that re- opportunity question impingement sults from afforded no near im- alleged pingement accuracy rights.81 declarant to the on” codefendants’ statements, Literally pages long nor to elicit his affirm- hundreds of of the transcript ance or denial that the statements were in this case are devoted to re- peated indeed concerning his. bench conferences problems resulting prob- joinder, agree cannot these circumstances I lems that ap- have come to this Court majority with the that Confrontation peal. Indeed, multiple errors that Clause values should be sacrificed to the infected the trial of Leonard and Sarvis purported efficiency joinder. I do not strong support lend hypothesis that, to a necessarily requires think the Clause as the joined number of defendants that Salters’ statements should have increases, possibilities trial preju- prosecution’s been excluded from the dice, and error, of reversible increase Nonetheless, case. po- because of their geometrically. significance jury’s tential verdict, to the hearsay is, I course, possible think these It statements should to avoid loss of prosecu- have been these savings, part admitted into least, by some Hines, U.S.App.D.C. controlled Court’s decision States cert, Em-1, U.S.App.D.C. 249, 1317, 1334, denied, 361 F.2d 531 (1966), concerned, since case U.S. “use- 92 S.Ct. 32 L.Ed.2d immunity, (1972), quoting Krechevsky, restriction” but transactional im- United States v. employment munity, involves, F.Supp. (D.D.C.1967). of which course, public a substantial of the sacrifice prosecution possible 622, 635, interest wit- 91 S.Ct. implicated nesses who are themselves L.Ed.2d 222 crimes. retrenching rights de- of criminal joined trial,

fendants others stretching and di- of evidence rules

luting guarantees meet constitutional exigencies Indeed, joint of the trial.

I am afraid that we have exactly often done too however, accept cannot, this. proposition judicial efficiency

can be defined in time and terms of

money applica- alone. Elaboration and

tion of evidence and the rules guarantee Confrontation are themselves pragmatic concern; fully

directed to a designed provide are some rea-

sonable assurance that defendants found

guilty guilty. long So assur- maintained, can be

ance I as enthu- am any

siastic as that reduce about devices judicial costs. ifBut this assurance is

diminished, price high. I think the too when, margin,

And at the the choice is savings money

between in time and

the guilt side and one reasonable assurance of other,

on the I think that efficien- cy in the true and, sense is more what important, integrity of the criminal

justice system demand that doubts

be resolved in favor of the latter. points respectfully On these dissent opinion of the Court.

NATIONAL INDEPENDENT COAL OP

ERATOR’S al. ASSOCIATIONet

Rogers (Secretary C. B. MORTON States) al., Interior the United et Appellants.

No. 73-1678. Appeals, States Court of District of Columbia Circuit.

Argued Oct.

Decided Feb.

Rehearing April Denied notes jority opinion, supra, note Green, California 155- U.S. 803(1), Proposed 65. See Rule Evi- Rules of S.Ct. L.Ed.2d 489 Magis- dence for United States Courts and trates, (1973), 56 E.R.D. 183 cit- cases 69. 400 L.Ed.2d 213 ed therein.

Case Details

Case Name: United States v. Irie E. Leonard, United States of America v. James L. Sarvis

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jan 31, 1974

Citation: 494 F.2d 955

Docket Number: 71-1503, 71-2019

Court Abbreviation: D.C. Cir.