involvement was limited, most of the evidence at trial will not be relevant or admissible against him, and that a separate trial is required to minimize the risks of prejudice and guilt by association. In response, the Government argues that defendants' allegations are insufficient to warrant a severance because a prosecutor may introduce into evidence the statements of codefendants, and because the defendants have failed to demonstrate either the likelihood of a codefendant testifying or the degree to which such testimony would be exculpatory. The Government also argues that a joint trial will not subject Borish, Justice and Krik to prejudicial guilt by association with Ginsberg because each defendant has been charged with participation in a conspiracy to defraud HUD.
Fed.R.Crim.P. 14 provides, in pertinent part, that if it appears that a defendant or the Government is prejudiced by a joinder of offenses or defendants in an indictment, the court may order an election or separate trial of counts, grant a severance of defendants or provide whatever other relief justice requires. Relief from prejudicial joinder under Rule 14 is within the discretion of the trial court. United States v. Somers, 496 F.2d 723, 730 (3d Cir.), cert. denied, 419 U.S. 832, 42 L. Ed. 2d 58, 95 S. Ct. 56 (1974). This Court continues to support the general rule that defendants jointly indicted shall be tried together in the absence of a clear showing that a defendant will be so severely prejudiced by a joint trial that it will deny him the right to a fair trial. United States v. Cohen, 444 F. Supp. 1314, 1318 (E.D.Pa. 1978), citing United States v. Frumento, 409 F. Supp. 143, 144 (E.D.Pa. 1976), aff'd, 563 F.2d 1083 (3d Cir. 1977), cert. denied, 434 U.S. 1072, 98 S. Ct. 1258, 55 L. Ed. 2d 776 (1978). The primary consideration in the court's determination of the existence of prejudice to a defendant is whether the jury can reasonably be expected to compartmentalize the evidence as it relates to the separate defendants in view of its volume and limited admissibility. Id. at 730. Speculation that the trial jury will not follow the instructions of the Court with respect to compartmentalizing the evidence does not justify a severance under Rule 14. United States v. Cohen, supra, 444 F. Supp. at 1317-1318; see United States v. Homer, 545 F.2d 864, 868 n.11 (3d Cir. 1976), cert. denied, 431 U.S. 954, 53 L. Ed. 2d 270, 97 S. Ct. 2673 (1977). Allegations of genuine prejudice must be considered together with the desirability of joint trials, particularly where the defendants are charged with conspiracy. United States v. Segal, 534 F.2d 578, 583 (3d Cir. 1976). More specifically, we must analyze the allegations of Borish, Justice and Krik with respect to their claim of the prejudice which will result to them from a joint trial in light of the following general standards: First, the Government's use at trial of the statements of a defendant is insufficient to warrant a severance of defendants for trial because the Government is required to remove references to other defendants which appear in the statement.
United States v. Segal, supra, 534 F.2d at 583, discussing Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). Second, in determining the necessity of a severance where a defendant argues that he will be unable to call a codefendant to testify in his behalf at a joint trial, courts have emphasized the following factors: (1) the likelihood that a codefendant would testify; (2) the degree to which such testimony would be exculpatory; (3) the degree to which the testifying codefendants could be impeached; and, (4) judicial economy. United States v. Boscia, 573 F.2d 827, slip op. at 9 (3d Cir. 1978). Bare assertions that a codefendant will testify are insufficient to warrant a severance, Id. at slip op. p. 10, because the constitutional right of a defendant not to testify at the behest of a codefendant remains absolute despite severance of the defendants for trial. United States v. Frumento, supra, 405 F. Supp. at 31. Third, a defendant is not entitled to a severance merely because the evidence against a codefendant is more damaging than the evidence against him, United States v. Dansker, 537 F.2d 40, 62 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S. Ct. 732, 50 L. Ed. 2d 748 (1977), or because he alleges the possibility of guilt by association with a codefendant, United States v. Frumento, supra, 405 F. Supp. at 31.
In this case, we find that Borish, Justice and Krik have failed to clearly show that he will be so severely prejudiced by a joint trial that it will deny him the right to a fair trial. First, we are satisfied that the defendants will not be prejudiced by the possible use at trial of the statements of a particular defendant because of the Government's representations of an intent to limit the use of such statements.
Second, defendants have not made a strong showing of the likelihood that their codefendants would testify. Although Borish stated to the Court at oral argument, held on April 20, 1978, that the other defendants had indicated a willingness to testify in his behalf if there were separate trials, we are not satisfied that any codefendant would not continue to invoke his Fifth Amendment privilege against self-incrimination. We find Borish's assertion, without more, that his codefendants will testify to be insufficient to demonstrate a likelihood that they will testify in his behalf. We find further that the showing as to the exculpatory nature of the desired testimony is also insufficient. None of the defendants has demonstrated that the testimony of a codefendant will exculpate him; indeed, Borish anticipates that his own testimony may adversely affect one or more of his codefendants. Further, there has been no showing of the degree to which a codefendant could be impeached. Therefore, we find that considerations of judicial economy outweigh any alleged prejudice which might possibly result from the inability of Borish, Justice or Krik to call a codefendant to testify in his behalf at trial. Third, in view of the instructions that will be given to the jury to compartmentalize the evidence, we find that Borish, Justice and Krik will not be prejudiced at a joint trial merely because the evidence against Ginsberg may be more damaging than that introduced against them. The alleged scheme in this case is not so complex, nor are the alleged conspirators so numerous, that the charges and evidence against each defendant cannot be kept separate in the minds of the jurors. Further, because each defendant is charged in Count 47 with conspiracy, we find that Borish, Justice and Krik will not be prejudiced by the possibility of guilt by association with Ginsberg or with each other. Therefore, in the absence of a clear showing of severe prejudice which will deny him a right to a fair trial, the motions of Borish, Justice and Krik for relief from prejudicial joinder, pursuant to Fed.R.Crim.P. 12(b)(5) and 14, will be denied.
Ginsberg's motion for a severance alleges a misjoinder of offenses under Fed.R.Crim.P. 8(a). Ginsberg argues that Counts 48 through 55 of the indictment, which charge him with the willful failure to file eight quarterly withholding returns for salaries paid to employees between April 1, 1975, and March 31, 1977, do not relate to the other 47 counts of the indictment, which he argues involve a separate and distinguishable series of alleged crimes. In response, the Government argues that there is a specific factual nexus between the Title 26 counts charging tax violations and the Title 18 counts charging, inter alia, false statements violations, because the FHA Form No. 2700b submitted by Ginsberg to HUD reflected on its face that Ginsberg was writing checks on the HUD trustee account for "payroll deductions."
Fed.R.Crim.P. 8(a) provides that two or more offenses may be charged in the same indictment, in a separate count for each offense, if the crimes charged are of the same or similar character, or are based upon the same act or transaction or series of acts or transactions, connected together or constituting parts of a common scheme or plan. The primary purpose of joinder of offenses under Rule 8(a) is to serve the goals of trial economy and convenience by insuring that the acts or transactions supporting the crimes charged need only be proved once. Baker v. United States, 131 U.S. App. D.C. 7, 401 F.2d 958, 971 (1968), cert. denied, 400 U.S. 965, 27 L. Ed. 2d 384, 91 S. Ct. 367 (1970); cf. United States v. Roselli, 432 F.2d 879, 900-901 (9th Cir. 1970), cert. denied, 401 U.S. 924, 91 S. Ct. 883, 27 L. Ed. 2d 828 (1971).
In this case, the Title 26 tax offenses and the Title 18 offenses are properly joined under Fed.R.Crim.P. 8(a) because the offenses are based upon two or more acts or transactions constituting part of a common scheme to defraud HUD. We are satisfied with the Government's representations that there is a common nexus of proof
such that the acts or transactions supporting both the Title 26 tax violations and the Title 18 offenses need only be proved once. Because we find that the Title 26 and Title 18 offenses in this case are properly joined under Fed.R.Crim.P. 8(a), Ginsberg's motion to sever the tax counts from the indictment, pursuant to Fed.R.Crim.P. 12(b)(2), will be denied.
Motions to Regulate the Order of Proof
Borish, Justice and Krik argue that the Court must regulate the order of proof by directing the Government to prove the existence of a conspiracy by independent evidence before it offers evidence of any of the acts, or oral or written statements, of the alleged coconspirators. In response, the Government argues that the order of proof at trial should not be regulated because the trial court has the discretion to first admit evidence concerning the acts and statements of coconspirators before it admits evidence of the connection of the acts and statements to the existence of a conspiracy.
The order in which parties will adduce proof at trial is vested in the discretion of the trial judge. Geders v. United States, 425 U.S. 80, 86, 47 L. Ed. 2d 592, 96 S. Ct. 1330 (1976). In a trial involving a conspiracy, statements by a coconspirator made in furtherance of a conspiracy are not hearsay and are admissible against all coconspirators. United States v. Graham, 548 F.2d 1302, 1308 (8th Cir. 1977); Fed.R.Evid. 801(d)(2)(E). Although the Government's proof at trial must show that a conspiracy existed between the declarant and the defendants, there is no requirement that the Government prove the existence of the conspiracy before offering extrajudicial statements into evidence. Id. at 1308. These statements may be conditionally admitted into evidence subject to a demonstration, as shown by subsequent, independent proof, of their connection with the conspiracy. Id. at 1308 (citations omitted); Fed.R.Evid. 104(b).
In this case, we hold that the Government need not prove the existence of a conspiracy before it offers into evidence the statements of a defendant. Such statements may be conditionally admitted into evidence, pursuant to the Federal Rules of Evidence and subject to a subsequent demonstration of their connection, by independent proof, to the existence of the conspiracy, as charged in Count 47 of the indictment. Therefore, the motions of Borish, Justice and Krik to regulate the order of proof, pursuant to Fed.R.Crim.P. 12(b), will be denied.
An appropriate Order will be entered. [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 452 F. Supp.]
AND NOW, TO WIT, this 20th day of June, 1978, IT IS ORDERED as follows:
1. The motions of each defendant to dismiss the indictment because of pre-indictment delay, pursuant to Fed.R.Crim.P. 12(b)(1) and 48(b), are hereby denied.
2. The motions of defendants Borish, Justice and Krik for relief from prejudicial joinder, pursuant to Fed.R.Crim.P. 12(b)(5) and 14, are hereby denied.
3. The motion of defendant Ginsberg for severance of offenses, pursuant to Fed.R.Crim.P. 12(b)(2) and 8(a), is hereby denied.
4. The motions of defendants Borish, Justice and Krik to regulate the order of proof at trial, pursuant to Fed.R.Crim.P. 12(b), are hereby denied.
LOUIS C. BECHTLE, J.