Disparity In The Evidence Warrants A Severance In This Case

In Rhone v. United States, 365 F.2d 980 (D.C. Cir. 1966), the D.C. Circuit recognized that "[p]rejudice from joinder of defendants may arise in a wide variety of circumstances ..." 365 F.2d at 981. In United States v. Sampol, 636 F.2d 621, 642-648 (D.C. Cir. 1980), this Circuit recognized that a great disparity in the weight and quantum of the government's evidence can justify a severance. Mr. xxxxxx was not involved in any of the sales of October 3 through 23, which form the basis for Counts II through XII of the indictment. Moreover, Mr. xxxxxx is not charged in Counts XV through XVIII of the indictment. The evidence against Mr. xxxxxx in this case is "dramatically disparate" from that against Messrs. xxxxx and xxxx and there is not any "substantial and independent evidence of [his] . . . involvement in the conspiracy." United States v. Tarantino, 846 F.2d 1384, 1398-99 (D.C. Cir. 1988), cert. denied, 488 U.S. 840. Accordingly, severance is required in this case. Cf. United States v. Andrews, 754 F.Supp. 1161 (N.D. Ill. 1990) (granting severance of defendants based upon disparity of evidence).

"[N]ot only the weight of the evidence, but also the quantity and type of evidence [to be] adduced against the co-defendants, is a vital consideration in evaluating the necessity for a severance." United States v. Sampol, 636 F.2d at 646. As this Circuit stated in Sampol, "[t]o speak in terms of 'transference' or 'rubbing off' of guilt, classic expressions used to explain why severance is justified in a particular case, would be to downplay the prejudice" to which Mr. xxxxxx will be subjected in a joint trial with the others charged in the indictment who were actually involved in the sales to the undercover officer and/or present at the time the search warrants were executed in this case on October 30, 1991. 636 F.2d at 646. Moreover, the prejudice cannot be cured through jury instructions directed at having the jury compartmentalize the evidence. In United States v. Daniels, 770 F.2d 1111 (D.C. Cir. 1985), although deciding a slightly different issue, the D.C. Circuit expressed its extreme skepticism about the "efficacy of jury instructions in curing the prejudice caused by the introduction of other crimes evidence." 770 F.2d at 1118 ("To tell a jury to ignore the defendant's prior convictions in determining whether he or she committed the offense being tried is to ask human beings to act with a measure of dispassion and exactitude well beyond normal capacities ... and 'the naive assumption that prejudicial effects can be overcome by instructions to the jury' becomes more clearly than ever 'unmitigated fiction'"). The situation in the instant case presents precisely that problem and it is one which jury instructions cannot cure. Accordingly, a severance is warranted in this case.

Inconsistent defenses

Notwithstanding the government's theory that Mr. xxxxxx and Mr. xxxxxxx were jointly involved in the offenses alleged in the indictment, Mr. xxxxxxxx defense is "mutually contradictory" to Mr. xxxxxxx defense. United States v. Manner, 887 F.2d 317, 324 (D.C. Cir. 1989), cert. denied, U.S. , 110 S.Ct. 879 (1990); United States v. Tarantino, 846 F.2d 1384, 1399 (D.C. Cir. 1988); United States v. Erlichman, 546 F.2d 910, 929-30 (D.C. Cir. 1976), cert. denied, 429 U.S. 1120 (1977). Based upon undersigned counsel's discussions with Mr. x counsel, it is clear that Messrs. x and x have defenses which are "antagonistic" and "directly contradictory," id. at 326, and present a situation involving "more than '[t]he presence of some hostility.'" Id. citing United States v. Wright, 783 F.2d 1091, 1094 (D.C. Cir. 1986).

Their defenses are mutually antagonistic and will result in an unfair trial for each of them. Their defenses are "so contradictory as to raise an appreciable danger that the jury would convict because of the inconsistency." United States v. Wright, supra, 783 F.2d at 1095. Thus, under these circumstances there is a substantial possibility that the jury will unjustifiably infer that this conflict alone demonstrates that both Mr. Calderon and Mr. Ferriera are guilty.

Moreover, since the defense are irreconcilable, counsel for Mr. xx will have the duty to comment on Mr.xxx  failure to testify if he does not take the stand. In accordance with the "De Luna doctrine," a severance should be granted to prevent the prejudice resulting from any comment by counsel on a co-defendant's failure to testify at trial. DeLuna v. United States, 308 F.2d 140, 154-155 (5th Cir. 1962); United States v. Mitchell, 397 F. Supp. 166, 178 (D.D.C. 1974) (DeLuna rule is that when one defendant would have a duty to comment on failure of co-defendant to take the stand because of a head-on conflict between defendants, severance should be granted).