threats to the family of Ernest Kelly, the chief prosecution witness, and to accommodate the trial schedule of Mr. Seay.
(4) Prejudice to the defendants.
Among the factors to be considered in weighing possible prejudice to the defendants are (1) oppressive pretrial incarceration, (2) anxiety and concern, and (3) impairment of the defense, Barker v. Wingo, supra, 407 U.S. at 532-533. None of these factors warrants dismissal of the indictment in the instant case, particularly when put in the proper perspective with respect to the length of delay and the reasons for that delay.
Oppressive pretrial incarceration is clearly not a significant factor in this case. Clark was arrested on state charges on March 16, 1973, and began serving a fifteen year federal sentence four days later. Christian and Griffin were incarcerated in connection with the offenses charged in the Washington, D.C., case from the date of their arrest in Florida on October 2, 1973, until the present time. Thus, each of these defendants would have been incarcerated during the entire period of these proceedings even if the instant indictment had never been returned.
Nor is anxiety a real factor in this case. Whatever emotional problems these defendants may have encountered, if any, certainly were more clearly attributable to the prior indictment in Washington, D.C., which charged them with multiple murders, offenses which are far more serious than the bank robbery which is the basis for the indictment in this case.
With respect to the impairment of their defense, the defendants present a myriad of claims, none of which is substantial or credible. We shall deal with all of these claims.
All defendants claim prejudice from the death of Lonny Anderson in the latter part of December, 1973. There is, however, not a shred of evidence, other than the palpably self-serving statements of these defendants, that Lonny Anderson knew anything at all about the events in question in this case; indeed, there is no independent evidence that Anderson was other than an individual known to the defendants who happened to have conveniently died during the pretrial period. There are no statements by Anderson in the possession of the defendants or their counsel, and no indication that any effort was made to procure such statements, notwithstanding the fact that he lived for several months after the state charges were lodged, as previously noted. Indeed, the government has no information about Lonny Anderson's connection with, or knowledge, of any of the matters in issue in this case. The testimony of the defendants is completely uncorroborated and inherently implausible. Defendants have every reason to fabricate such a story in an attempt to secure dismissal of the indictment in this case.
Similar reasoning applies in the case of Fred Davis, who died on November 10, 1973, and who Clark claims would have impeached the identification testimony of Ernest Kelly. Again, there is no independent evidence that Fred Davis was present at the meeting at which Kelly purportedly made statements that were inconsistent with his testimony at the trial, or that Clark was unable to locate any of the other persons who were also purportedly at the Mosque on that occasion.
See United States v. Childs, 415 F.2d 535, 539 (3d Cir. 1969).
Clark makes the same claim with respect to the death of Emily Jackson, apparently also known as Emily Burnett, on September 7, 1974, and James Kennedy, on October 1, 1974, and the purported deaths of Marvin Grier and Charles Robinson. He also claims that one Country Davis, an associate of Ernest Kelly, could have testified in his behalf, had he been located prior to trial. Again, there is not the slightest corroboration of these claims.
The only conclusion which we are able to reach from this tale of death and disappearance is that defendants' associates have a convenient and abnormally high mortality rate. We must agree with the Court in United States v. Research Foundation, 155 F. Supp. 650, 655 (S.D. N.Y. 1957) when it rejected a similar contention:
* * * this move to dismiss the indictment may perhaps be regarded as a post mortem alibi. It is based on the alleged facts that all of the defense witnesses have died or are missing * * *. There is some basis for believing that, by thus casting deceased persons in exculpatory roles, defendants hope to snatch a defense out of the jaws of death. The tactical theory behind this apparent maneuver is familiar: dead men tell no tales.
We must also conclude that Clark's claim of missing evidence is woven upon the same loom out of the same flimsy fabric. We took testimony from the Philadelphia Police and members of the staff of the United States Attorney in the District of Columbia, and we are satisfied as to the chain of custody of the evidence and the good faith of the government. Again, there is no showing of necessity to the defense, since at least one corroborative witness, one Geraldine Sistrone, was apparently available and was never called, and defendant himself testified that he had an independent recollection of the events in question, and, of course, he chose not to testify with respect to them.
In summary, we engaged in the "difficult and sensitive balancing process" mandated by the Court in Barker v. Wingo, supra, mindful of the fundamental rights of these defendants to a speedy trial. Id., 407 U.S. at 533. We conclude that none of these defendants was denied a speedy trial, nor, for the reasons previously discussed, were they denied due process or any rights under Rule 48(b). Accordingly, we reaffirm our prior rejection of the motions to dismiss the indictment.
Defendants claim that a new trial should be granted because the Court abused its discretion in refusing to sever the trial of Clark from that of Christian and Griffin. Clark argues that Christian and Griffin were arrested in the Kellys' home on February 8, 1973; that he was not arrested until some weeks later; and that the government's case therefore rested upon identification testimony by the Kellys. Hence, he states his trial should have been severed from that of the two co-defendants to avoid a "bandwagon effect". Christian and Griffin argue that since they were arrested in the Kellys' home, while Clark and Dabney accompanied Ernest Kelly to the bank, a severance should have been granted because of the jury's inevitable consideration of the evidence against Clark and Dabney in their deliberations with respect to Christian and Griffin. We find these arguments totally frivolous.
Initially, we note the general rule that persons jointly indicted should be tried together, except on a strong showing of prejudice. United States v. Boyance, 30 F.R.D. 146, 147 (E.D. Pa. 1962). The burden falls upon the defendant to make such a showing. United States v. Lipowitz, 407 F.2d 597, 601 n. 15 (3d Cir.1969), cert. den. 395 U.S. 946, 89 S. Ct. 2026, 23 L. Ed. 2d 466. The fact that defendants might have had a better chance of acquittal if separately tried is, in and of itself, plainly insufficient to justify severance. United States v. Cassino, 467 F.2d 610, 622-623 (2d Cir. 1972), cert. den. 410 U.S. 913, 93 S. Ct. 957, 959, 35 L. Ed. 2d 276, 410 U.S. 928, 93 S. Ct. 1363, 35 L. Ed. 2d 590, 410 U.S. 942, 93 S. Ct. 1363, 35 L. Ed. 2d 608. Particularly in conspiracy cases, in which a charge against the defendants may be proven for the most part, by the same evidence, a severance should not be granted, except when there are extenuating circumstances; United States v. Boyance, supra, 30 F.R.D. at 148. Conflict among defendants in conspiracy trials is common, and a severance should not be granted when this is the sole ground alleged, United States v. Abrams, 29 F.R.D. 178, 182 (S.D. N.Y. 1961).
Applying these general principles of law to the facts of the instant case, we find that Clark, Christian, and Griffin were all charged with the same offenses in the same counts of the indictment. Each of these defendants was charged with conspiracy in Count I, and each was charged with aiding and abetting the violation of the federal bank robbery statute by Dabney in Counts III, V, and IX. The fact that Christian and Griffin may have remained behind at the Kellys' home while Clark accompanied Ernest Kelly to the bank, or the fact that there was no identification of Clark by police officers, but by the Kellys alone, fall far short of the "strong showing of prejudice" required to grant a severance. Since the matter of a severance is committed to the discretion of the trial court, United States v. Lipowitz, supra, 407 F.2d at 599, and the defendants have failed to meet the burden imposed upon them by the law, we conclude that the denial of a severance was not an abuse of discretion, and we again reaffirm our prior denial of this motion.
3. Change of venue
Defendants next argue that we erred in refusing to grant a change of venue when the appropriate motions were made prior to trial, or when these motions were renewed during the process of jury selection. We do not agree.
With respect to the pretrial motions for change of venue, the law in this Circuit is well established that such motions are premature prior to voir dire of the prospective jurors. In United States v. Addonizio, 313 F. Supp. 486, 493 (D.N.J. 1970), aff'd 451 F.2d 49 (3d Cir. 1972), cert. den. 405 U.S. 936, 92 S. Ct. 949, 30 L. Ed. 2d 812, Judge Barlow outlined the correct procedure for the District Court when confronted with motions for change of venue based upon alleged adverse pretrial publicity; his analysis was subsequently adopted by the Court of Appeals for the Third Circuit, 451 F.2d at 61:
* * * While the volume of such publicity resists precise definition, it was clearly both extensive and intensive. Even, however, accepting that characterization of the pre-trial publicity herein, this court is not persuaded that that fact alone necessarily precludes the possibility of selecting a fair and impartial jury for the trial of this indictment. Indeed, it has been recently held that publicity associating criminal defendants with "the Mafia" is not, per se, prejudicial. See Patriarca v. United States, 402 F.2d 314 (1st Cir., 1968), cert. denied, 393 U.S. 1022, 89 S. Ct. 633, 21 L. Ed. 2d 567 (1969); United States v. Corallo, 281 F. Supp. 24 (S.D. N.Y., 1968).