holding that defense that implicated codefendants in the crime was not antagonistic with defense of insufficient evidence
How later courts described this case
- holding that defense that implicated codefendants in the crime was not antagonistic with defense of insufficient evidence
- Noting fact that comment was not used for impeachment, was offered by a witness rather than the prosecutor, and dealt with failure to speak at sometime before trial, not during trial
- only two such cases found in a survey of the circuits: Crawford and Johnson
- “To repeat the familiar, persons indicted together ordinarily should be tried together.”
Written by the judges who cited it.
The opinion
SIMPSON, Senior Circuit Judge,
concurring in part, and dissenting in part:
I concur with the majority opinion in all respects save one: I cannot agree with Section I. Severance, and respectfully dissent from that portion of the opinion. I would reverse the convictions of appellants Calvo-Castillo, Vicente-Leon and Nunez on the ground that the trial judge abused his discretion by repeated denials of these defendants’ Motions for Severance. To my mind, U.S. v. Johnson, 478 F.2d 1129 (5th Cir.1973) mandates this result.