moving defendant must show “facts demonstrating that he will be so severely prejudiced by a joint trial that it would in effect deny him a fair trial”
How later courts described this case
- moving defendant must show “facts demonstrating that he will be so severely prejudiced by a joint trial that it would in effect deny him a fair trial”
- finding no constitutional deprivation due to denial of daily transcripts
- Second Circuit adopts rule and now holds that the law recognizes no distinction between direct and circumstantial evidence for purposes of assessing its value
- “Every act in furtherance of the conspiracy is regarded in law as a renewal or continuance of the unlawful agreement, and the conspiracy continues so long as overt acts in furtherance of its purposes are done.”
Written by the judges who cited it.
The opinion
OAKES, Circuit Judge
(concurring):
I concur in the court’s thorough opinion. I write only with respect to the general objection to that portion of the charge relating to credibility generally and the interest of the defendant particularly. To my mind such a charge, absent the balancing language approved in United States v. Martin, 525 F.2d 703 (2d Cir.), cert, denied, 423 U.S. 1035 , 96 S.Ct. 570 , 46 L.Ed.2d 410 (1975), and suggested as “preferable” in United States v. Floyd, 555 F.2d 45 , 47 n.4 (2d Cir.), cert, denied, 434 U.S. 851 , 98 S.Ct. 163 , 54 L.Ed.2d 120 (1977), to the effect that a defendant’s vital interest in the outcome of his trial is not inconsistent with his ability to render truthful testimony, is erroneous, prejudicial, and, in a close case hinging on defendant’s credibility, devastating. Here, however, defense counsel made no objection specifically calling the trial judge’s attention to the omission of the balancing language; and because our court in Floyd, supra, used language that was only precatory in nature, I find it difficult to hold such omission reversible error here. Because Judge Platt and a few other district judges have evidently used the charge given here, I would simply recall attention to the preferability language of the note in Floyd, supra. Speaking only for myself, I would not be adverse, as to trials occurring hereafter, to reversal on the basis of such an omission. I am reminded of Judge Frank’s view that precatory language of the court of appeals condemning error that nevertheless results in affirmance is “purely ceremonial” in nature. United States v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2d Cir.) (Frank, J., dissenting), cert, denied, 329 U.S. 742 , 67 S.Ct. 49 , 91 L.Ed. 640 (1946).