The opinion of the court was delivered by: DAVIS
JOHN MORGAN DAVIS, District Judge.
The defendants have filed motions for a new trial or in arrest of judgment. The defendants were found guilty by a jury on June 8, 1971 of robbing the Industrial Valley Bank and Trust Company, Norco Mall, Pottstown, Pennsylvania on July 14, 1970, in violation of 18 U.S.C. § 2113. Dennis Coleman was found guilty on four counts as the actual robber and John Swords was found guilty on two counts as being the planner of the robbery.
The two defendants were represented by separate counsel. The defendants were tried together. The two attorneys representing the defendants have filed separate motions for new trial or in arrest of judgment. I shall deal with each of them together because the issues which are raised are basically the same. However, when a dichotomy must be drawn between the two defendants, I will proceed to deal with each issue as it pertains to each defendant. The defendants have raised the following as the basis for their motion:
1. The Court erred in refusing to grant John Swords ten peremptory challenges upon voir dire examination.
Rule 24(b) of the Federal Rules of Criminal Procedure controls the number of peremptory challenges which may be used. It authorizes ten for the defendant and six for the Government in felony cases. Where several defendants are tried together, they are treated as a single party for purposes of peremptory challenges. The Court may allow additional peremptory challenges for multiple defendants.
I allowed each defendant to have six peremptory challenges (N.T. 6-7) for a total of twelve for the defendants. This matter was purely in my discretion and there was no error. See Gradsky v. United States, 342 F.2d 147 (5th Cir. 1965); Amsler v. United States, 381 F.2d 37, 44 (9th Cir. 1967).
2. The Court erred in denying John Swords' pre-trial motion for severance.
Rule 14 of the Federal Rules of Criminal Procedure allows the Court, at its discretion, to permit severance. In exercising its discretion, the Court will balance the inconvenience and expense to the government of separate trials against the prejudice to the defendants in a joint trial, additionally the burden is upon the defendant to show prejudice. See Wright Federal Practice and Procedure, § 223. Here, John Swords was not prejudiced in being tried jointly. He obtained a fair trial. The defendant has not come forward with his burden of showing that he was prejudiced.
3. It was error in allowing the witness, Jerry Lamoreaux, to be seated at the counsel table with the Assistant U.S. Attorney during the examination of John Swords.
Initially, the attorneys for both defendants have raised this issue. Therefore, I will address the issue as to the possible effects on each defendant. The United States Attorney asked the Court for permission to have Mr. Lamoreaux sit at the counsel table with him (N.T. 456-457). After hearing arguments at side-bar, I allowed Mr. Lamoreaux to be seated next to the U.S. Attorney (N.T. 456-461). I further instructed the jury not to consider Mr. Lamoreaux as part of the prosecution and not to add any additional credit to Lamoreaux's testimony by reason of the fact that he would confer with the U.S. Attorney during the examination of John Swords (N.T. 461). The jury was properly instructed on this issue and there was no prejudice against either defendant.
4. The Court erred in charging the jury, in that, the instructions to the jury on the testimony of an accomplice should have included the word "scrutinize".
I charged the jury on the weight to be given an accomplice. In my charge to the jury, I stated:
An accomplice does not become incompetent as a witness because of participation in the crime charged. On the contrary, the testimony of an accomplice alone, if believed by the jury, may be of sufficient weight to sustain a verdict of guilty, even though his testimony should not be corroborated or supported by other evidence. However, the jury should keep in mind that ...