It is clear that the court treated as trustworthy the statements of the numerous counsel, as officers of the court. United States v. Gleason, 259 F. Supp. 282 (S.D.N.Y. 1966) is an example of handling the motion, and the showings of underlying factors, by affidavits from both sides. We turn to the second area of inquiry, the exculpatory nature, and the significance, of the codefendant's testimony and the showing of those factors.
The Seventh Circuit reversed, holding on these facts that denial of the severance so prejudiced Echeles' defense that a new trial was required. Other courts likewise have recognized that a severance is due where the moving defendant needs the evidence of a co-defendant; this need is unlikely to be met in a joint trial; and "there is a substantially greater likelihood" that the evidence would be forthcoming if severance were granted. United States v. Gleason. 259 F. Supp. 282 (S.D.N.Y. 1966). See also United States v. Addonizio, 313 F. Supp. 486 (D.C.N.J. 1970).
Implicit in this discussion is a recognition that the resolution of the co-defendant's severed trial might eliminate the basis for any subsequent assertion of the Fifth Amendment privilege. That consideration occurred to Judge Frankel when he directed severance in United States v. Gleason, 259 F. Supp. 282, 284 (S.D.N.Y. 1966): "If Pitkin is tried separately and first, he may plead, or be found, guilty.
A reasonable probability appearing that the proffered testimony would, in fact, materialize, Shuford should not have been foreclosed from the benefits of Jordan's pivotal testimony simply because that probability was not an absolute certainty. United States v. Echeles, 352 F.2d 892 (7th Cir. 1965); United States v. Gleason, 259 F. Supp. 282 (S.D.N.Y. 1966). (Footnotes omitted.)
The attitude toward the motions for severance I think should have been treated with greater deference as was done in Byrd. In United States v. Gleason, 259 F. Supp. 282, 284 (S.D.N.Y. 1966), the court stated: "It is enough to say that Karp [the movant] has shown persuasive ground for the claim that she needs Pitkin's [the co-defendant's] evidence; that the need must almost certainly go unsatisfied in a joint trial; and that there is substantially greater likelihood of her using him if they are tried separately." What has been stated in Gleason, I deem to be truly applicable here.
See United States v. Echeles, 352 F.2d 892 (7th Cir. 1965). See Kolod v. United States, 371 F.2d 983 (10th Cir. 1967); United States v. Sanders, 266 F. Supp. 615 (W.D.La. 1967); United States v. Gleason, 259 F. Supp. 282 (S.D.N.Y. 1966). De Luna v. United States, 308 F.2d 140, 1 A.L.R.3d 969 (5th Cir. 1962), is no obstacle.
See United States v. Taylor, 562 F.2d 1345, 1362 (2d Cir. 1977) (holding district court did not abuse its discretion in denying severance, in part because the defendant had failed to establish, as Finkelstein require[d], that the codefendant would waive his Fifth Amendment privilege given the codefendant's repeated assertions that he would not answer any questions until instructed by the court that he had no Fifth Amendment right to refuse to answer). Albert Pirro's reliance on United States v. Gleason, 259 F. Supp. 282 (S.D.N.Y. 1966), is misplaced. In Gleason, decided long before Finkelstein and Zafiro, the district court granted a defendant's motion for severance in a tax fraud case from her co-defendant tax preparer because she wished to call the preparer as a witness expecting exculpatory testimony.
The only information provided to the Court is based upon the unsworn representations of counsel for both Kozell and Keller to the effect that Keller would, in essence, admit his own role in the delivery but would state that Kozell was not a participant in the conspiracy, that he had no knowledge of it and that he did not receive any part of the proceeds of the sale. While it is not necessary that Kozell demonstrate the nature of Keller's testimony through sworn testimony, Byrd v. Wainwright, supra, 428 F.2d at 1020; United States v. Gleason, 259 F. Supp. 282, 283 (S.D.N.Y. 1966), and while the Court has no reason to doubt the integrity and professionalism of respective counsel, we are not convinced that Keller's testimony would go far to exculpate Kozell. This case is unlike others in which the codefendant whose testimony is sought has already made exculpatory statements which can give the Court some notion of what he will testify to at a later trial.
The statement of the co-defendant had been made several times in the context of an earlier trial of that co-defendant on a different offense, and thus the exact nature and significance of that testimony was known. Also in United States v. Gleason, 259 F. Supp. 282 (S.D.N.Y. 1966), Judge Frankel severed the trial of two co-defendants where oral and written statements had been made by one co-defendant specifically supporting the main defendant's defense of lack of criminal intent in an income tax evasion case. By way of contrast, in United States v. Crisona, 271 F. Supp. 150 (S.D.N.Y. 1967), where the significance and content of the alleged exculpatory testimony of a co-defendant could not be determined in advance of the trial, the court denied the motion for separate trials.
Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960). In support of his argument, defendant cites United States v. Gleason, 259 F. Supp. 282 (S.D.N.Y. 1966), United States v. Shuford, 454 F.2d 772 (4th Cir. 1971) and United States v. Echeles, 352 F.2d 892 (7th Cir. 1965). In Gleason, after a pretrial hearing the court granted severance in an income tax evasion case when the moving defendant made a showing that he needed the evidence of a co-defendant to establish his defense of lack of guilty knowledge.