Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/ussct/zaf-us.ws

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ZAFIRO et al. v. UNITED STATES
certiorari to the united states court of appeals for
the seventh circuit
No. 91-6824.   Argued November 2, 1992-Decided January 25, 1993

Petitioners were indicted on federal drug charges and brought to
trial together pursuant to Federal Rule of Criminal Procedure
8(b), which provides that defendants may be charged together "if
they are alleged to have participated . . . in the same series of
acts or transactions constituting . . . offenses."  At various
points during the proceeding, they each argued that their
defenses were mutually antagonistic and moved for severance under
Rule 14, which specifies that, "[i]f it appears that a defendant
or the government is prejudiced by a joinder of . . . defendants
 . for trial . . . , the court may order an election or
separate trials of counts, grant a severance of defendants or
provide whatever relief justice requires."  The District Court
denied the motions, and each petitioner was convicted of various
offenses.  Although acknowledging other lower court cases saying
that a severance is required when defendants present "mutually
antagonistic defenses," the Court of Appeals found that
petitioners had not suffered prejudice and affirmed the denial of
severance.


Held:  Rule 14 does not require severance as a matter of law when
codefendants present "mutually exclusive defenses."  While the
Rule recognizes that joinder, even when proper under Rule 8(b),
may prejudice either a defendant or the Government, it does not
make mutually exclusive defenses prejudicial per se or require
severance whenever prejudice is shown.  Rather, severance should
be granted only if there is a serious risk that a joint trial
would compromise a specific trial right of a properly joined
defendant or prevent the jury from making a reliable judgment
about guilt or innocence.  The risk of prejudice will vary with
the facts in each case, and the Rule leaves determination of the
risk, and the tailoring of any necessary remedy, to the sound
discretion of the district courts.  Although separate trials will
more likely be necessary when the risk is high, less drastic
measures, such as limiting instructions, often will suffice.
Because petitioners, who rely on an insupportable bright-line
rule, have not shown that their joint trial subjected them to any
legally cognizable prejudice, the District Court did not abuse
its discretion in denying their motions to sever.  Moreover, even
if there were some risk of prejudice, here it is of the type that
can be cured with proper instructions, which the District Court
gave.  Pp. 3-7. 945 F. 2d 881, affirmed.

  O'Connor, J., delivered the opinion of the Court, in which
Rehnquist, C. J., and White, Blackmun, Scalia, Kennedy, Souter,
and Thomas, JJ., joined.  Stevens, J., filed an opinion
concurring in the judgment.

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No. 91-6824
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GLORIA ZAFIRO, JOSE MARTINEZ, SALVADOR
GARCIA and ALFONSO SOTO, PETITIONERS
v. UNITED STATES
on writ of certiorari to the united states court
of appeals for the seventh circuit
[January 25, 1993]

  Justice O'Connor delivered the opinion of the Court.

  Rule 8(b) of the Federal Rules of Criminal Procedure provides
that defendants may be charged together "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."  Rule 14 of the Rules, in turn, permits a district
court to grant a severance of defendants if "it appears that a
defendant or the government is prejudiced by a joinder."  In this
case, we consider whether Rule 14 requires severance as a matter
of law when codefendants present -mutually antagonistic
defenses.-

                                 I

  Gloria Zafiro, Jose Martinez, Salvador Garcia, and Alfonso Soto
were accused of distributing illegal drugs in the Chicago area,
operating primarily out of Soto's bungalow in Chicago and
Zafiro's apartment in Cicero, a nearby suburb.  One day,
government agents observed Garcia and Soto place a large box in
Soto's car and drive from Soto's bungalow to Zafiro's apartment.
The agents followed the two as they carried the box up the
stairs.  When the agents identified themselves, Garcia and Soto
dropped the box and ran into the apartment.  The agents entered
the apartment in pursuit and found the four petitioners in the
living room.  The dropped box contained 55 pounds of cocaine.
After obtaining a search warrant for the apartment, agents found
approximately 16 pounds of cocaine, 25 grams of heroin, and 4
pounds of marijuana inside a suitcase in a closet.  Next to the
suitcase was a sack containing $22,960 in cash.  Police officers
also discovered 7 pounds of cocaine in a car parked in Soto's
garage.

  The four petitioners were indicted and brought to trial
together.  At various points during the proceeding, Garcia and
Soto moved for severance, arguing that their defenses were
mutually antagonistic.  Soto testified that he knew nothing about
the drug conspiracy.  He claimed that Garcia had asked him for a
box, which he gave Garcia, and that he (Soto) did not know its
contents until they were arrested.  Garcia did not testify, but
his lawyer argued that Garcia was innocent: The box belonged to
Soto and Garcia was ignorant of its contents.

/* This is the type of case that prosecutors dream of. It results
in the defendants all pointing fingers at one another. Often the
result is that the jury decides that all of them are lying and
convicts them all, when the defense hopes that the jury will
believe at least one of them. */

  Zafiro and Martinez also repeatedly moved for severance on the
ground that their defenses were mutually antagonistic.  Zafiro
testified that she was merely Martinez's girlfriend and knew
nothing of the conspiracy.  She claimed that Martinez stayed in
her apartment occasionally, kept some clothes there, and gave her
small amounts of money.  Although she allowed Martinez to store a
suitcase in her closet, she testified, she had no idea that the
suitcase contained illegal drugs.  Like Garcia, Martinez did not
testify.  But his lawyer argued that Martinez was only visiting
his girlfriend and had no idea that she was involved in
distributing drugs.

  The District Court denied the motions for severance. The jury
convicted all four petitioners of conspiring to possess cocaine,
heroin, and marijuana with the intent to distribute.  21 U. S. C.
846.  In addition, Garcia and Soto were convicted of possessing
cocaine with the intent to distribute, 841(a)(1), and Martinez
was convicted of possessing cocaine, heroin, and marijuana with
the intent to distribute, ibid.

  Petitioners appealed their convictions.  Garcia, Soto, and
Martinez claimed that the District Court abused its discretion in
denying their motions to sever.  (Zafiro did not appeal the
denial of her severance motion, and thus, her claim is not
properly before this Court.)  The Court of Appeals for the
Seventh Circuit acknowledged that "a vast number of cases say
that a defendant is entitled to a severance when the `defendants
present mutually antagonistic defenses' in the sense that `the
acceptance of one party's defense precludes the acquittal of the
other defendant.'"  945 F. 2d 881, 885 (1991) (quoting United
States v. Keck, 773 F. 2d 759, 765 (CA7 1985)).  Noting that
"mutual antagonism  . . . and other . . . characterizations of
the effort of one defendant to shift the blame from himself to a
codefendant neither control nor illuminate the question of
severance," 945 F. 2d, at 886, the Court of Appeals found that
the defendants had not suffered prejudice and affirmed the
District Court's denial of severance.  We granted the petition
for certiorari, 503 U. S. ___ (1992), and now affirm the judgment
of the Court of Appeals.

/* These cases all seem to revolve around the theory that if all
of the defendants were convicted, it is always because all of
them are guilty. They do not consider the alternative hypothesis.
*/

                           II