The opinion of the court was delivered by: BECHTLE
Presently before the Court is the motion of the defendant Robert Kozell ("Kozell"), pursuant to Fed.R.Crim.P. 14, for relief from prejudicial joinder. For the reasons stated below, the motion will be denied.
Kozell is one of five defendants charged in a one-count indictment with conspiracy to distribute and to possess with intent to distribute phencyclidine phosphate ("PCP"), a Schedule II, non-narcotic controlled substance, in violation of 21 U.S.C. § 841. On the basis of the indictment, read in light of discovery taken, Kozell states in his motion that he expects the Government to offer evidence tending to prove that he and a codefendant, Kerby Keller ("Keller"), visited the home of a Government informant on October 20, 1977, and delivered approximately two pounds of PCP. Kozell expects the Government to offer the testimony of the informant, as well as a tape recording of the conversation made during the visit on a body recorder worn by the informant. The tape contains several ambiguous or equivocal statements by Kozell which may or may not be construed as evidencing knowledge of or participation in the conspiracy on the part of Kozell.
Kozell urges the Court to grant his motion for a severance on the ground that a joint trial will deprive him of the opportunity to call Keller as a defense witness but that, if a severance were granted, Keller would testify that Kozell did not participate in the conspiracy and would explain Kozell's "ambiguous" statements.
As a general rule, defendants jointly indicted should be jointly tried. United States v. Frumento, 409 F. Supp. 143, 144 (E.D.Pa.1976). Severance may be denied in the absence of a clear showing that a defendant will be so severely prejudiced by a joint trial that it will in effect deny him a fair trial. United States v. Barber, 296 F. Supp. 795, 797 (D.Del.1969), Aff'd in part, rev'd in part on other grounds, 442 F.2d 517 (3d Cir.), Cert. denied, 404 U.S. 958, 92 S. Ct. 327, 30 L. Ed. 2d 275 (1971). Kozell's argument in support of his motion for severance is that Keller will invoke his Fifth Amendment privilege if they are tried jointly, thus depriving him of Keller as a defense witness. It is true that a defendant may not be required to take the stand at his own trial. United States v. Housing Foundation of America, 176 F.2d 665, 666 (3d Cir. 1949). However, a codefendant may be called as a witness at a separate trial for another person accused with him. United States v. Arcuri, 405 F.2d 691, 695 (2d Cir. 1968), Cert. denied, 395 U.S. 913, 89 S. Ct. 1760, 23 L. Ed. 2d 227 (1969). The fundamental flaw in Kozell's argument is that he cannot compel Keller to testify even if a severance is granted. United States v. Barber, supra, 442 F.2d at 529 n. 22.
In United States v. Boscia, 573 F.2d 827 (3d Cir. 1978), the Third Circuit articulated several factors to be considered in determining whether the Court should grant a severance on the ground that a joint trial would deprive the movant of the ability to call a codefendant as a defense witness:
In determining the necessity of severance under these circumstances, courts have placed emphasis on the following four factors: (1) the likelihood of codefendant's testifying; (2) the degree to which such testimony would be exculpatory; (3) the degree to which the testifying codefendants could be impeached; (4) judicial economy.
Id., at 832. See also United States v. Rosa, 560 F.2d 149, 155 (3d Cir. 1977) (en banc); United States v. Finkelstein, 526 F.2d 517, 523-524 (2d Cir. 1975); Byrd v. Wainwright, 428 F.2d 1017, 1019-1020 (5th Cir. 1970). Upon consideration of each of these factors, we find that their resolution militates against Kozell's position.
Kozell attempts to show that Keller is likely to testify through assertions of Keller's counsel, Carmen Nasuti, Esquire, made during a hearing held on this motion. Mr. Nasuti stated, in unsworn testimony, that If Keller's trial were held before Kozell's trial and If Keller were convicted, Keller would probably be willing to testify on behalf of Kozell. Mr. Nasuti could not make any representations regarding Keller's willingness to testify on behalf of Kozell in the event that his trial resulted in an acquittal. While it is not necessary that Kozell show that Keller is "certain" to testify at a later trial, United States v. Echeles, 352 F.2d 892 (7th Cir. 1965), we find that Kozell has not shown that Keller is "likely" to testify due to the various conditions he has placed on his willingness to testify.
Second, the Court is uncertain as to Keller's willingness to testify if he is convicted at a prior trial but decides to appeal that conviction. While an appeal is pending, Keller would certainly have an interest in retaining his Fifth Amendment privilege because of the possibility that a new trial may be granted. As a consequence, this Court may be asked to stay Kozell's trial pending the exhaustion of Keller's appeals and the completion of any further proceedings at the District Court level. On the other hand, we would not ask Keller to irrevocably waive his right to appeal at this preliminary stage of the proceedings against him. A similar problem would arise in the event that Keller is mistried because a jury is unable to reach a verdict. Keller would, once again, have an interest in retaining his Fifth Amendment privilege.
Ordinarily, the Court would expect to proceed with Kozell's trial immediately following Keller's trial. If Keller were convicted, his willingness to testify on behalf of Kozell could certainly be affected by the pendency of the presentence investigation. While Kozell might be willing to waive his right to a speedy trial pending Keller's sentencing, the interests of the Court and the public in the expeditious and efficient administration of justice would militate against permitting such a delay. In light of the various conditions placed upon Keller's willingness to testify, we find that, overall, Kozell has not shown that Keller is "likely" to testify.
Kozell argues that, in the event Keller is acquitted, his unwillingness to commit himself to testify would be irrelevant because Kozell could then reach Keller with a subpoena. This argument is premised on the notion that the double jeopardy clause would eliminate any criminal liability arising out of the testimony and that, therefore, Keller could not invoke his Fifth Amendment privilege against self-incrimination. The Court is not in a position to decide this very difficult constitutional issue at this time and, in any event, Keller would not be subject to the full coercive power of this Court, if we were to decide that he must testify, since he is already incarcerated upon a felony conviction.
In the alternative, Kozell urges this Court to grant Keller some sort of "informal" immunity. It is clear that the grant or denial of immunity is wholly within the discretion of the executive branch, United States v. Rocco, 587 F.2d 144 (3d Cir. 1978), and that the Court has no authority to provide immunity for a defense ...