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UNITED STATES v. CIANCIULLI

August 30, 1979

UNITED STATES OF AMERICA
v.
MATTHEW J. CIANCIULLI, JR., JOSEPH A. RICCA, RAMON MEIRINO, PATRICIA DI GIAMBATTISTA, ANTHONY SKEDZIELEWSKI, ANTHONY FIORENTINO, JOSEPH COSTELLO, CATHERINE SPAGNA, VINCENT SPAGNA, RICHARD DE ANGELIS, JOSEPH TULLY, MARY ANN TULLY, SALVATORE MORICI, JOSEPH ALDINGER, GRACE CONIGLIERO, SALVATORE CONIGLIERO, FRANK D. COPPOLA, BARBARA A. COPPOLA, THOMAS CASTELLI, ANGELO SANNUTTI, ROBERT RUSSELL, CAROL RUSSELL, HELSON MEIRINO, JOSEPH ASNES, VINCENT LOMBARDO



The opinion of the court was delivered by: BECHTLE

MEMORANDUM OPINION AND ORDER

For the following reasons, the Court, after careful review and consideration of the decisional authority, will order Sua sponte severance of the trial of the above case into three separate trials, pursuant to the express and inherent judicially created powers under Fed.R.Crim.P. 14.

 The action before the Court concerns alleged improprieties engaged in by the 25 named defendants arising out of conspiratorial and other activities in falsely registering to vote in federal elections over a three-year period, in violation of federal criminal law. Two defendants entered guilty pleas to the charges at the time of arraignment. Presently, 23 defendants are awaiting trial for their alleged criminal activities.

 The procedural device governing severance in criminal trials is Fed.R.Crim.P. 14, which provides:

 
If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection In camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.

 This rule is adversely related to Fed.R.Crim.P. 8, which requires joinder in certain instances, and states as follows:

 
(a) Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
 
(b) Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

 Although Fed.R.Crim.P. 14 does not expressly grant the Court the power to order severance on its own motion as Fed.R.Civ.P. 42 does, several courts, including the Third Circuit Court of Appeals, have read into Rule 14 an inherent judicial power to order severance Sua sponte of defendants into separate trials. See U. S. v. De Diego, 167 U.S.App.D.C. 252, 258, 511 F.2d 818, 824 (D.C.Cir.1975); U. S. v. Archie, 452 F.2d 897, 899 (3d Cir. 1971); Jackson v. U. S., 134 U.S.App.D.C. 18, 21, 412 F.2d 149, 151 (D.C.Cir.1969); U. S. v. Vida, 370 F.2d 759, 765 (6th Cir. 1966); U. S. v. Guterma, 181 F. Supp. 195, 196 (E.D.N.Y.1960); U. S. v. Harvick, 153 F. Supp. 696, 698 (D.N.D.1957).

 Furthermore, the courts have broadly phrased this power in terms of a duty on the part of the court to sever a trial when it appears at any time before or during the trial that prejudice will accrue to the defendants if severance is not ordered. See Schaffer v. U. S., 362 U.S. 511, 516, 80 S. Ct. 945, 4 L. Ed. 2d 921 (1960); U. S. v. Gougis, 374 F.2d 758, 762 (7th Cir. 1967); U. S. v. Vida, supra, 370 F.2d at 765.

 Appellate courts will not reverse a trial court's independent decision to sever, unless it can be shown that the defendants were prejudiced in some way by the court's granting severance. See Jackson v. U. S., supra, 134 U.S.App.D.C. at 21, 412 F.2d at 151.

 The prerequisite showing of prejudice to warrant a court ordering severance Sua sponte has been found by the courts in a variety of contexts. First, the inherent problems entailed with any mass trial, which involve the presence of numerous defendants and their counsel, several-count indictments, violations of multiple criminal statutes and varying and complicated factual situations, can prejudice individual defendants. See U. S. v. Branker, 395 F.2d 881, 887-888 (2d Cir. 1968), Cert. denied, 393 U.S. 1029, 89 S. Ct. 639, 21 L. Ed. 2d 573 (1969); U. S. v. Vida, supra, 370 F.2d at 765.

 The United States Supreme Court specifically addressed this problem in Kotteakos v. U. S., 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1945), holding that:


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