United States v. Cecil Arnold Odom, A/K/A Bud Kelly , 888 F.2d 1014 ( 1989 )

CHAPMAN, Circuit Judge:

This appeal presents an unusual former jeopardy question. Appellant and a code-fendant, Victor Carroll Fincham, were tried for conspiracy to murder a government witness and aiding and abetting in the murder of a government witness. After two days of trial, it became obvious that appellant’s attorney had adopted a plan of defense which included doing all in his power to attack codefendant Fincham and to persuade the jury by reference to past wrongful acts that Fincham was the “kingpin” in the killing and that appellant was merely “an underling.” During these two days of trial, Fineham’s attorney made several motions for a severance claiming that Finc-ham was being unduly prejudiced by the manner in which appellant’s attorney was conducting appellant’s defense. On the third day of trial, Judge Motz granted a severance, over appellant’s objection. The judge elected to proceed with the trial against Fincham, who was convicted. The trial judge found that because he had granted a severance and not a mistrial, there was no requirement that there be a “manifest necessity” to discontinue the trial as required by Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). The trial judge further found “even if manifest necessity is the proper standard in such a case, there was manifest necessity here.” We find that on the present facts the trial judge did not abuse his discretion in granting a severance. The trial judge had discretion as to which defendant to sever from the trial, and the judge did not abuse his discretion in severing the appellant rather than the codefend-ant Fincham. We find no violation of appellant’s protection against double jeopardy in requiring him to now stand trial.

I.

For a proper understanding of this appeal, it is necessary to review the prosecutions that have resulted as a consequence of the murder of a federal witness, John Vitkauskas, who was killed June 14, 1987. Vitkauskas was to testify against Dale Joseph Benjamin, Sr. and his son, Dale Joseph Benjamin, Jr. in their trial for the theft of an armored car. An indictment was returned on February 25, 1988 charging Dale Joseph Benjamin, Sr., Victor Carroll Fincham, and Cleveland Everett Miller with conspiracy to murder, tampering with a witness, retaliating against an informant, using a firearm to tamper with a witness, and using a firearm to retaliate against an informant. The present appellant, Cecil Arnold Odom, also known as Bud Kelly, was not indicted in the first action.

Trial on the first indictment began in May 1988. The prosecution contended that Benjamin and Fincham hired Miller to kill Vitkauskas to prevent him from testifying against Benjamin. During the trial, Benjamin elected to testify in his defense and Fincham then moved for a severance claiming that Benjamin’s defense was antagonistic and prejudicial to his own defense. Judge Young conducted an evidentiary hearing on the motion to sever and found that Benjamin’s defense “is completely antagonistic to and irreconcilable with Finc-ham’s defense. If the jury believes Benjamin’s story, it must convict Fincham, similarly, if the jury believes Fincham’s story, to which Benjamin refers in his defense, it must convict Benjamin.” The trial judge further found that Benjamin’s defense focused on Fincham’s drug involvement and claimed that Fincham had Vitkauskas killed to prevent him from telling police about Fincham’s drug dealings. The judge found that Benjamin was to testify that, as a result of a phone call he made to Fincham to advise him that Vitkauskas knew of Fincham’s cocaine distribution ring, Finc-ham had Vitkauskas killed and set Benjamin up as “the fall guy.” The court found that a severance of Fincham allowed Benjamin to present his complete defense without unfairly prejudicing Fincham’s case.

The jury verdict in the first trial acquitted Benjamin and convicted Miller, who then elected to cooperate with the government. Acting upon information supplied by Miller, the grand jury returned a superseding indictment charging Fincham and appellant Odom with conspiracy to murder. Miller’s statement was that Odom was fully involved in the planning of the murder and that Odom had ridden with Miller and Vitkauskas when Vitkauskas was taken on his last ride. Miller also stated he was paid $500 of Odom’s money and also had a cocaine debt forgiven as payment for killing Vitkauskas.

Following the superseding indictment, Fincham moved for a severance in anticipation of unspecified antagonistic defenses. Judge Motz held a hearing and denied the severance motion, but stated it would be subject to reconsideration as the trial developed. On the opening day of trial the district judge attempted to establish certain ground rules to govern the attorneys during opening statements and examination and cross examination of witnesses. In so doing he was attempting to prevent antagonistic and prejudicial information, such as prior firearm and narcotics dealings, from being brought into evidence by one defendant against the other. Counsel for Odom objected to these ground rules because he wished to present more evidence of Finc-ham’s wrongdoings, and in his opening statement to the jury and in questioning the witnesses he did everything possible to prejudice Fincham in the eyes of the jury. The attorney was admonished on several occasions by the trial judge, but without success. Appellant’s attorney refused to follow the ground rules established by the court and proceeded with his attack upon the codefendant Fincham. During the first two days of trial Fincham made unsuccessful motions for a severance, but on the morning of the third day of trial the court found that a severance was necessary to protect Fincham. This presented the question of which defendant should be severed. Fincham asked to be severed, but Odom asked to be retained and that the trial proceed against him. The United States Attorney asked that the case continue against Fincham because Fincham had been severed from the first trial and a second severance of Fincham on a charge as serious as conspiracy to commit murder would give an appearance to the public that Fincham had “beat the system.”

The trial judge granted the motion to sever appellant and proceeded with the trial of Fincham.

Shortly thereafter, Odom filed a motion to bar his retrial on double jeopardy grounds and a motion to prevent the government, in the event of a retrial, from using any evidence developed since the time of his previous trial. Both motions were denied and Odom appealed.

II.

Defendants Odom and Fincham were properly charged in the same indictment and scheduled for a joint trial. Federal Rule of Criminal Procedure 8 provides for joinder of defendants when they are alleged to have participated in the same act or series of acts constituting an offense. However, Federal Rule of Criminal Procedure 14 provides:

Relief from Prejudicial Joinder

If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.

In United States v. Santoni, 585 F.2d 667, 673 (4th Cir.1978), we found that when defendants were improperly joined under Rule 8 severance was mandatory, but we stated: “On the other hand, if joinder was proper the trial court was permitted to exercise its discretion in determining whether or not to proceed with a joint trial.” In United States v. Spitler, 800 F.2d 1267, 1272 (4th Cir.1986), we pointed out that the facts of each case must be examined to determine whether sufficient prejudice exists to require a severance, but we stated: “Application of this standard ... is for the district court in the first instance, and reviewable here only for abuse of discretion.” In Spitler we also held that antagonistic defenses do not per se require severance, even when the defendants attempt to cast the blame on each other. However, on the present record we are convinced that the trial judge did not abuse his discretion in granting a severance on the third day of trial.

In his order denying appellant’s motion to dismiss the present indictment under the Double Jeopardy Clause the judge outlined the history of the prior trial, the return of the superseding indictment, and the events leading up to the granting of the severance as follows:

Prior to trial, Fincham again moved for a severance based upon anticipated antagonistic defenses. This court denied the motion, subject to it being renewed during the course of the trial if it became apparent that Kelly’s¹ defense was so antagonistic to Fincham’s as to deprive the latter of a fair trial. In denying the motion, the court also established certain ground rules, designed to assure a fair trial for both defendants, concerning the extent to which the Government could present evidence as to drug activities in which it alleged Fincham and Kelly were involved and the extent to which Kelly could present evidence of and refer to drug and other illegal activities in which he alleged that Fincham was involved. After the opening statement made by Luther West, the attorney for Kelly, Fincham renewed his motion for a severance. The court denied the motion at that time and several times thereafter when it was again renewed. However, on the morning of the third day of trial, the Court reconsidered its position and granted Fincham’s severance motion. The catalyst for this ruling was an evi-dentiary question; Kelly wanted to elicit testimony concerning a prior firearm transaction which the Court concluded was admissible as part of Kelly’s defense but was not properly admissible against Fincham. The context in which the ruling was made, however, was created by the general conduct of Kelly’s defense. As the trial was unfolding, it became increasingly apparent that despite admonitions from the Court, Mr. West would not abide by the letter and the spirit of this Court’s ground rules and that he believed that the defense of his client required him to be hostile in tone, as well as in substance, towards Fincham. Seeing the storm clouds gathering, this Court decided that a severance would have to be ordered.

Since the defendants were charged with conspiracy, they were properly joined. A joint trial of co-conspirators is preferable unless such a trial will generate conditions so prejudicial to one of the defendants as to deny him a fair trial. After the present trial began, it became obvious to the trial judge that throughout the trial he was going to be faced with a choice of either curtailing Odom’s defense, which could prejudice Odom, or allowing Odom’s attorney to continue his inflammatory attacks on Fincham, which would be prejudicial to Fincham.

The attack of attorney West upon the co-defendant Fincham was so unrelenting and prejudicial that Fincham could not have received a fair trial as a co-defendant and before the same jury as Odom. “The taking of an adversarial stance on the part of a co-defendant’s counsel may generate trial conditions so prejudicial to the defendant under multiple attack as to deny him a fair trial.” United States v. DeVeau, 734 F.2d 1023, 1027 (5th Cir.1984), cert. denied sub nom. Drobny v. United States, 469 U.S. 1158, 105 S.Ct. 906, 83 L.Ed.2d 921 (1985). Odom’s attorney’s tactic was to bring out any information that was detrimental and prejudicial to Fincham without regard to whether such information was relevant to the charges contained in the indictment. The trial judge made a valiant effort to conduct a joint trial of co-conspirators without undue prejudice to either, but when he found that a fair trial was impossible with the defendants being tried together, he made proper use of his discretion and severed the appellant Odom for a later trial.

Although the severance motion was made by Fincham and opposed by Odom, the judge had the discretion to decide which defendant should continue trial before the empaneled jury, and which defendant should wait for a subsequent trial. In United States v. Aquiar, 610 F.2d 1296, 1301 (5th Cir.1980), the court stated: “In light of the principles of Arizona v. Washington, once a severance is found to be warranted by manifest necessity, the trial court has sound discretion over who is to be retained and who is to be severed.”

Since Fincham had been severed in a prior trial arising out of the same alleged murder, it was not an abuse of discretion for the trial judge to consider the possible impact upon public opinion and public confidence in the courts that might result from a second severance of Fincham and a second delay of his trial.²

III.

We have decided that the trial judge was within his discretion in granting a severance of the co-defendants and in deciding which of the two should be severed. We now come to the question of whether appellant Odom may be required to stand trial before a new jury, or whether such a trial is barred by the double jeopardy clause of the Fifth Amendment: “... nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.A person is protected by this language from being subjected to the hazards of a trial and the possibility of conviction more than once for the same alleged offense. It is twice being placed in jeopardy that triggers the protection and not being twice convicted or twice punished. However, not every second trial is prohibited.

The Supreme Court has not addressed the Double Jeopardy Clause as it relates to the retrial of a defendant who has been severed after jeopardy attached in a prior trial. However, the Court has provided substantial guidance to us in Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978), which involved a claim to double jeopardy protection after the granting of a mistrial at the request of the state because of prejudicial statements made by the defendant’s attorney in his opening statement.

Washington was tried and convicted of murder but his conviction was reversed on appeal and he went to trial a second time. After the jury was sworn and Washington was placed in jeopardy, his attorney made an opening statement in which he stated that prosecutorial misconduct during the first trial had necessitated a second trial. The prosecutor objected and requested a mistrial claiming that such was a “manifest necessity” to protect the public interest in a fair trial. The trial judge, after considering curative instructions to the jury and other alternative solutions, concluded that none would be adequate and he granted the prosecution’s motion for a mistrial. Washington then claimed that another trial was barred by the Double Jeopardy Clause, but the Supreme Court did not agree and stated:

Unlike the situation in which the trial has ended in an acquittal or conviction, retrial is not automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charges against the accused. Because of the variety of circumstances that may make it necessary to discharge a jury before a trial is concluded, and because those circumstances do not invariably create unfairness to the accused, his valued right to have the trial concluded by a particular tribunal is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury. Yet in view of the importance of the right, and the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. The prosecutor must demonstrate “manifest necessity” for any mistrial declared over the objection of the defendant.

Id. at 505, 98 S.Ct. at 830.

The court found that other decisions had used “evident necessity” and “imperious necessity” but that these phrases have the same meaning as “manifest necessity,” and refer to a “high degree” of necessity. It concluded that this level of necessity was difficult to define and for this reason the trial judge’s decision is accorded great deference. However, the reviewing court should satisfy itself that “the trial judge exercised ‘sound discretion’ in declaring a mistrial.” Id. at 514, 98 S.Ct. at 835.

We are persuaded that, along with the spectrum of trial problems which may warrant a mistrial and which vary in their amenability to appellate scrutiny, the difficulty which led to the mistrial in this case also falls in an area where the trial judge’s determination is entitled to special respect.

In this case the trial judge ordered a mistrial because the defendant’s lawyer made improper and prejudicial remarks during his opening statement to the jury. Although respondent insists that evidence of prosecutorial misconduct was admissible as a matter of Arizona law, and therefore that the opening statement was proper, we regard this issue as foreclosed by respondent’s failure to proffer any Arizona precedent supportive of his contention and by the state court’s interpretation of its own law, buttressed by the consistent opinion of the Federal District Court and the Court of Appeals. Cf. Bishop v. Wood, 426 U.S. 341, 346-347 [96 S.Ct. 2074, 2078-79, 48 L.Ed.2d 684 (1976)]. We therefore start from the premise that defense counsel’s comment was improper and may have affected the impartiality of the jury.

We recognize that the extent of the possible bias cannot be measured, and that the District Court was quite correct in believing that some trial judges might have proceeded with the trial after giving the jury appropriate cautionary instructions. In a strict, literal sense, a mistrial is not “necessary.” Nevertheless, the overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge’s evaluation of the likelihood that the impartiality of one or more jurors may have been affected by the improper comment.

An improper opening statement unquestionably tends to frustrate the public interest in having a just judgment reached by an impartial tribunal. Indeed, such statements create a risk, often not present in the individual juror bias situation, that the entire panel may be tainted. The trial judge, of course, may instruct the jury to disregard the improper comment. In extreme cases he may discipline counsel, or even remove him from the trial as he did in United States v. Dinitz, 424 U.S. 600 [96 S.Ct. 1075, 47 L.Ed.2d 267 (1976) ]. Those actions, however, will not necessarily remove the risk of bias that may be created by improper argument. Unless unscrupulous defense counsel are to be allowed an unfair advantage, the trial judge must have the power to declare a mistrial in appropriate cases. The interest in orderly, impartial procedure would be impaired if he were deterred from exercising that power by a concern that any time a reviewing court disagreed with his assessment of the trial situation a retrial would automatically be barred. The adoption of a stringent standard of appellate review in this area, therefore, would seriously impede the trial judge in the proper performance of his “duty, in order to protect the integrity of the trial, to take prompt and affirmative action to stop ... professional misconduct.”

Id. at 510-13, 98 S.Ct. at 833-34.

We recognize that the conduct of Odom’s attorney did not amount to misconduct, as did that of Washington’s attorney, and we do not label it as misconduct. However, it was designed to prejudice the codefendant Fincham by use of evidence, statements, and innuendos about his past illegal acts which might not be relevant to the present charge. The trial judge was familiar with the first indictment and trial, and he attempted to try co-defendants who had been properly joined, but in spite of his efforts he found that a fair trial for Fincham would be denied so 'long as he was in a joint trial with Odom. His finding is entitled to the “special respect,” and we find that the trial judge exercised the “sound discretion” required by Arizona v. Washington in concluding that the circumstances presented a situation of “manifest necessity” requiring a severance to insure a fair trial.

A defendant’s right to have his trial completed before a particular jury is not absolute. As pointed out by Justice Black in Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949): “[A] defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.”

The dissent’s analysis is unpersuasive because it reasons that the personal nature of the double jeopardy bar requires application of the manifest necessity test to gauge the trial court’s choice of which defendant among several or many to sever, given that there was plainly a manifest necessity to sever in the first place. Thus, the dissent advocates a two-tiered test, in which manifest necessity must be found to exist at both steps of the severance process. Applying the manifest necessity test in this fashion is inappropriate in light of that test’s origin in the historical context of single-defendant trials. See discussion in Arizona v. Washington, 434 U.S. at 506-10 & nn. 18-27, 98 S.Ct. at 830-32 & nn. 18-27. In this historical context, the development of an individually focused test to fit the mistrial situation is both understandable and entirely appropriate. But, in the context of joint trials (which, given the current reality of federal criminal law, are more often mass trials), the appropriate place for application of the manifest necessity test is the trial judge’s initial decision to stop the trial as it is then proceeding. The choice of whom to sever is a question of discretion, to be reviewed only for abuse, not by a second application of the extremely stringent manifest necessity test.

In this way, the interest of society in achieving fair and just trials for all, see Wade v. Hunter, 336 U.S. at 689, 69 S.Ct. at 837, will not be defeated by the mechanical application of a test rooted in historical antecedents insufficiently related to present realities to justify it in this context.

We conclude that the severance met the standard of manifest necessity and there was no abuse of discretion in proceeding with the trial of Fincham. Appellant Odom’s protection against double jeopardy will not be violated by requiring him to go to trial on the present superseding indictment. The necessity for the severance was, after all, created by the defensive tactics employed by appellant and his attorney.

IV.

We find no merit to appellant’s claim that the government be denied the use of any evidence that may be developed after the date of the trial from which appellant was severed.

AFFIRMED.

1 . Appellant used the alias "Bud Kelly” and he was referred to more often as Kelly than by his given name Odom.

2 . The Court offers no opinion as to whether it might have been an abuse of discretion to proceed with Fincham’s trial had he not been severed previously, as those were not the circumstances of the case now before us.