United States v. Ronald Jackson Crane

McCREE, Circuit Judge

(concurring in part and dissenting in part).

I concur in the court’s disposition of all the issues presented in this appeal except for its treatment of the “bifurcated” trial procedure. This procedure, which might more appropriately be characterized as “tandem,” violated appellant’s constitutional rights to due process and to a fair trial before an impartial jury.

Appellant’s admission implicating his codefendants could not agreeably to the Sixth Amendment, be introduced against them. Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968). To prevent prejudice to them, and, at the same time, to achieve economy of judicial time and energy, the district court empanelled a single jury to hear the case in tandem fashion. The government was instructed to introduce all its evidence against the codefendants and Crane except for his admission. Thereupon, the jury heard argument from the codefendants, received the court’s charge concerning them, and retired to deliberate upon and decide their guilt or innocence. After the return of the verdict affecting only the codefendants, the government presented to the same jury evidence of Crane’s admission. Thereupon, the jury heard his argument, received the court’s instruction, and retired to deliberate about him.

Notwithstanding the district court’s commendable concern about the constitutional rights of Crane’s codefendants and its understandable desire to expedite cases on its crowded docket, this procedure deprived Crane of basic constitutional rights. Although innovation is essential to the growth of the law, the procedure adopted here endangered proper fact-finding and was fundamentally unfair. A more appropriate course of action would have been to grant ap *1390 pellant’s motion to sever under Rule 14 of the Federal Rules of Criminal Procedure. That rule provides that “[i]f it appears that a defendant ... is prejudiced by a joinder ... of defendants . . . for trial together, the court may . . . grant a severance of defendants or provide whatever other relief justice requires.”

During the first phase of the trial, the jury was required to determine at least one element (and possibly more) of the crime with which Crane was charged before is was instructed to deliberate on his guilt or innocence. It is unlikely that the jury would either reconsider or change its earlier determination of issues decided during deliberation about the codefendants, or accord to Crane, at the commencement of its deliberation about him, the presumption of innocence with respect to all the elements of the offense with which he was charged. This procedure presents the same risk of injustice that has compelled other courts to order a new trial when the jury that determined a defendant’s guilt was composed of persons who had served as jurors in a case related to and arising from the same criminal action. E.g., Lett v. United States, 15 F.2d 690 (8th Cir. 1926). See also, United States v. Haynes, 398 F.2d 980 (2d Cir. 1968), cert. denied, 393 U.S. 1120 , 89 S.Ct. 996 , 22 L.Ed.2d 124 (1969), Casias v. United States, 315 F.2d 614 (10th Cir. 1963) (en banc), and United States v. Stevens, 444 F.2d 630, 632 (6th Cir. 1971), where this court held that “whenever avoidable, jurors should not be called to serve in cases involving witnesses or parties who participated in cases in which they were previously impanelled.” In addition, the tandem procedure confused the role of appellant’s counsel whose client’s case did not enjoy the first priority on the jury’s agenda during the initial phase of the trial. He might have been reluctant, for fear of antagonizing the jury that had been told to defer consideration of his client’s case, to participate forcefully in the first phase of the trial, for example, in the examination of witnesses, and in the decision whether to make an opening statement or “partial” closing argument.

The jury’s verdict that Crane’s codefendant was not guilty of armed bank robbery does not warrant the conclusion in the majority opinion that Crane was not prejudiced by the tandem trial. At the start of trial, there were four defendants, three of whom were charged with armed bank robbery and one of whom, Crane, was charged only with possession of the proceeds of that robbery. On the second day of trial, two of appellant’s codefendants entered a plea of guilty to the charge of armed robbery, and one of them then became a witness for the prosecution. On the third day of trial, the jury determined that appellant’s third codefendant was not guilty. Within minutes of announcing the verdict, the trial of Crane alone resumed, and the jury was informed that appellant had given an FBI agent a list of persons to whom the robbery proceeds were to be paid. This list included the wife of the defendant whom the jury had just acquitted. It requires little imagination to conclude that the effect of this additional information on the jury was considerable. The jury,having been told, in effect, that it might have just erred in its earlier verdict, may have determined not to permit another “guilty” person to go free.

Although the majority expressed- its “serious doubts about the propriety of the general use of a bifurcated trial,” it concluded that the use of the procedure in this case was harmless. Assuming that a procedure that deprives a defendant of his constitutional right to a fair trial before an impartial jury can ever be deemed harmless, the majority opinion does not determine that the error was “harmless beyond a reasonable doubt,” Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967), and I do not so conclude.

Accordingly, I would hold that when the district court correctly determined that a joint trial of Crane and his codefendants would violate Bruton , it should *1391 have ordered separate trials, as appellant requested, or possibly, with appropriate safeguards, might have impanelled two juries, one to determine Crane’s guilt or innocence and the other to determine the guilt or innocence of his codefendants. See United States v. Sidman, 470 F.2d 1158, 1167-1170 (9th Cir. 1972), cert. denied, 409 U.S. 1127 , 93 S.Ct. 948 , 35 L.Ed.2d 260 (1973).

I would reverse and remand with instructions to grant a new trial.