The opinion of the court was delivered by: FOGEL
Defendants Daniel Snead and Arthur Snead were indicted on November 30, 1976, charged with four counts of aiding and abetting bank robbery, in violation of 18 U.S.C. § 2113 and one count of conspiracy, in violation of 18 U.S.C. § 371. They were tried before this court and a jury and convicted on all counts on January 19, 1977. Counsel for both Daniel and Arthur Snead filed timely Motions for a New Trial and Judgment of Acquittal, alleging a variety of errors. Additionally, counsel for both defendants have filed Motions for a New Trial on the Basis of Newly Discovered Evidence. We denied all motions by Order dated September 16, 1977. The matter has now been appealed; this opinion sets forth the reasons for our action.
I. ISSUES COMMON TO BOTH DANIEL AND ARTHUR SNEAD
Prior to trial, both Daniel and Arthur Snead (hereinafter Daniel and Arthur) filed motions for separate trials. Daniel based his motion on the belief that a government witness, one Michael McNamee, would testify that Arthur had made a threat upon McNamee's life, thereby inculpating him, (Daniel); Arthur based his motion upon the belief that another government witness, one Sam Doman, would testify to having been hired by Daniel to kill McNamee, thus inculpating him, (Arthur). Arthur argued additionally that evidence concerning an alleged homosexual relationship between Daniel and McNamee, which he anticipated would be introduced at the trial, although not directed toward him, would nevertheless be prejudicial to him at a joint trial. We denied both motions by Order of January 5, 1977.
United States v. Dansker, 537 F.2d 40 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748 (1977), sets forth the criteria that govern disposition of severance motions; that opinion states the following in pertinent part:
A motion for severance is addressed to the sound discretion of the court.
A defendant is not entitled to a severance merely because the evidence against a co-defendant is more damaging than against him. If that were the case, a joint trial could rarely be held. Rather, in determining whether disparate proofs require a severance, the proper inquiry is whether the evidence is such that the jury cannot be expected to compartmentalize it and then consider it for its proper purposes. United States v. DeLarosa, 450 F.2d 1057 at 1065 (3d Cir. 1971).
Explicit in Arthur's motion, and implicit in Daniel's motion, is the notion that the jury could not independently "compartmentalize" the evidence as to each of them because they are brothers. Opper v. United States, 348 U.S. 84, 99 L. Ed. 101, 75 S. Ct. 158 (1954), presented substantially the same contention as that advanced by defendants in this case; in Opper, the defendant contended that he had been prejudiced by possible confusion among the jurors as to statements made by co-defendant Hollifield. Rejecting this argument, the Supreme Court stated:
To say that the jury might have been confused amounts to nothing more than an unfounded speculation that the jurors disregarded clear instructions of the court in arriving at their verdict.
348 U.S. at 95. In view of the careful instructions given the jury in the instant case,
we cannot yield to the "unfounded speculation" that the jury confused the evidence to the prejudice of one or both of the defendants.
B. REFERENCE TO BANK ROBBERIES GENERALLY
Both defendants also contend that certain remarks of the Assistant United States Attorney in his opening statement, and testimony by other government witnesses, with respect to instruction of co-conspirators Crompton and McNamee by the defendants in the "art" of robbing banks was prejudicial. The government was not permitted to introduce evidence pertaining to other bank robberies generally; however, evidence was permitted with respect to planning, but only as it tended to show an overall plan and modus operandi relating to the specific subject of the indictment.
Permitting evidence of this nature was recently approved in this Circuit in Dansker, supra, in which the trial court limited the testimony of a key government witness "to [describing] the mechanics of their [defendants'] scheme through four illustrative examples." 537 F.2d at 58. Because of the repeated admonitions by the trial court of the limited purpose for which the evidence would be admitted, and the very careful instructions to the jury, the Third Circuit found no abuse of the trial court's "considerable discretion in permitting the introduction of this evidence." Id.
We feel that the instructions given to the jury in this case more than adequately protected defendants from any prejudicial effect the remarks and testimony might have had.
Defendants contend that co-defendant, Gary Crompton's testimony should not have been permitted because Crompton was under the influence of alcohol and/or drugs at the time the crimes were committed, and had only minimal recall of the pertinent events. We held a competency hearing out of the presence of the jury.
Crompton freely admitted having consumed some alcohol on the day of the crime, but had a good recall of the events; he also freely admitted those things he could not recall. We determined that Crompton was competent to testify and that any ...