respect to the grant or denial of a severance. United States v. Leonard, 161 U.S.App.D.C. 36, 46, 494 F.2d 955, 965 (1974). There is a strong federal policy favoring joinder and the balance has been approvingly struck in favor of joint trials. Id.
The joinder of defendants and offenses for a single trial is governed by Rules 8(b) and 14 of the Federal Rules of Criminal Procedure. Cupo v. United States, 123 U.S.App.D.C. 324, 326, 359 F.2d 990, 992 (D.C.Cir.1966), Cert. denied, 385 U.S. 1013, 87 S. Ct. 723, 17 L. Ed. 2d 549 (1967); See Bruton v. United States, 391 U.S. at 123 n. 6, 88 S. Ct. 1620, 20 L. Ed. 2d 476 . Rule 8(b) provides that joinder is proper if the defendants "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 provides for relief from prejudicial joinder of offenses or defendants.
The Court finds that the offenses charged in the indictment in this case allege the same series of acts or transactions within the requirements of Rule 8(b). The predominant factor in the analysis of a joinder problem is the commonality of proof. Baker v. United States, 131 U.S.App.D.C. 7, 20-21, 401 F.2d 958, 971-72 (1978) (per curiam), Cert. denied, 400 U.S. 965, 91 S. Ct. 367, 27 L. Ed. 2d 384 (1970). Thus, when there is a substantial degree of overlap in the evidence that will be adduced to prove the separate charges, the various allegations may be joined. Id.
The defendants contend that the conspiracy charged in Count One of the indictment and its substantive offenses must be severed from the conspiracy charged in Count Twenty-three and its substantive offenses. The first conspiracy allegedly had as its objective the collection of data by illegal means, and the second a cover-up of these activities. The joinder of two such offenses has been termed a "classical example" of a proper joinder. King v. United States, 355 F.2d 700, 704 (1st Cir. 1966) Citing United States v. Perlstein, 120 F.2d 276 (3d Cir.), Rev'd on other grounds, Second convictions aff'd, 126 F.2d 789, Cert. denied, 316 U.S. 678, 62 S. Ct. 1106, 86 L. Ed. 1752 (1942). The Court finds that these allegations constitute a common series of transactions joinable under Rule 8(b).
The defendants also move to sever the perjury Counts Twenty-five through Twenty-eight, from the remainder of the indictment. The Court finds that these charges are so intimately connected with the second conspiracy charge that severance is uncalled for. Even if there were a separate trial on the Count Twenty-three conspiracy, the perjury charges would be admissible since the alleged perjury would be material and relevant to the charge of conspiracy to avoid detection. See United States v. Sweig, 316 F. Supp. 1148, 1158 (S.D.N.Y.1970), Aff'd 441 F.2d 114, 118-19 (2d Cir.), Cert. denied, 403 U.S. 932, 91 S. Ct. 2256, 29 L. Ed. 2d 711 (1971). And it would be admissible in a trial on the Count One conspiracy because it would be a false exculpatory statement. Id. Thus, there is the technical nexus required by Rule 8(b). Id. See also United States v. Mitchell, 372 F. Supp. 1239, 1256 (S.D.N.Y.1973); United States v. Hilliard, 436 F. Supp. 66, 75 (S.D.N.Y.1977).
In this case, the indictment charges the defendants with a multifaceted scheme with a consistent, logically interlocked set of goals, in furtherance of which overlapping groups of the defendants allegedly formed two conspiracies and committed substantive offenses. Accordingly, the indictment properly joins a series of acts or transactions within the meaning of Rule 8(b).
Under Rule 14 the Court must sever defendants and counts joinable under Rule 8(b) is prejudicial. At this time the Court finds that the defendants' right to a fair trial will not be substantially interfered with by trying this case as presently joined. Since the evidence as to each count and defendant would be admissible at separate trials, there would be no prejudice. See United States v. Kim, 193 U.S.App.D.C. 370, at 385-386, 595 F.2d 755, at 770-771 (D.C.Cir. 1979).
Two of the defendants move to sever on the ground that there would be prejudicial spillover if they were tried with the other alleged conspirators because there is a disparity of evidence as to their respective involvement in the two conspiracies. The defendants rely on United States v. Mardian, 178 U.S.App.D.C. 207, 546 F.2d 973 (1976) and United States v. Kelly, 349 F.2d 720 (2d Cir. 1965), Cert. denied, 384 U.S. 947, 86 S. Ct. 1467, 16 L. Ed. 2d 544 (1966). The Court finds these cases to be distinguishable. In Mardian, the government consented to the severance: the defendant made a strong showing of prejudice at the pretrial stage, he was named in only one count, only five of forty-five overt acts named him, a substantial part of the evidence at trial would concern events after Mardian ceased active participation, and his attorney became ill in the midst of trial. 546 F.2d at 979-80. In Kelly, the proof supporting the defendant's participation in the over-all conspiracy was tenuous and insubstantial. 349 F.2d at 756. In this case, the defendant Hubbard is alleged to be a prime participant in the second conspiracy and has a significant role in the first conspiracy. And the Court has no evidence before it to indicate that the evidence against Hubbard or Thomas will be tenuous or insubstantial. Although the defendant Thomas is charged with a smaller role, safeguards are available to prevent substantial spillover. See Kelly v. United States, supra at 756-57.
The defendants also move to sever under United States v. Yates, 173 U.S.App.D.C. 308, 524 F.2d 1282 (1975) (per curiam). In Yates, the defendant took the stand and raised an alibi defense which consisted of a claim that he was with his companion Jones when the robbery he was charged with occurred. Id. 173 U.S.App.D.C. at 310, 524 F.2d at 1284. In rebuttal, a police officer took the stand and testified that after he placed the defendant and Jones into custody, and while they were being taken to the scene of the crime, Jones remarked that he had been with the defendant for only five minutes. Id. At trial, Jones invoked the fifth amendment and declined to testify. Id. The trial court allowed the officer's testimony under the rationale that the defendant's silence in the face of that accusation indicated his assent to its accuracy. Id., 173 U.S.App.D.C. at 311, 524 F.2d at 1285. The court of appeals rejected this basis because the defendant was at the time a prime suspect, in custody, in a police car, and in the presence of two policemen. Thus, it was not natural to assume that he would contradict the statement if it were inaccurate. Id. Moreover, the Court found that implying assent to an accusatory statement by silence in a custodial situation was at odds with the Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). United States v. Yates, 173 U.S.App.D.C. at 311, 524 F.2d at 1285. After deciding that the statement was not admissible under the rationale of the lower court, the court faced the sixth amendment issue. Id.
The Court in Yates held that the admission of the statement violated the defendant's rights under the sixth amendment to confront the witnesses against him. In reaching this determination, the court listed three criteria which, if satisfied, would make the admission of an out-of-court statement by an unavailable declarant permissible under the sixth amendment. Id., 173 U.S.App.D.C. at 312, 524 F.2d at 1286. The Court did not rule that each of the three criteria listed was necessary in order to admit such a statement. According to the court, such statements are admissible "At least when three conditions are satisfied . . .." Id., 173 U.S.App.D.C. at 313, 524 F.2d at 1286 (emphasis added). And the court stated, "admittedly, the precise contours of these three requirements are not free from doubt, nor is it certain whether all three must be satisfied in every case." Id. (citation omitted).
The three factors the court in Yates focused on to decide that case were: (1) the reliability of the statement; (2) whether the evidence was peripheral or devastating; and (3) whether the witness is equally available to the prosecution and the defense. Id. On the facts before it, the court found that the evidence was unreliable: "Clearly, grave doubts exist as to the sincerity of the self-serving statement," Id., it found that it was far from peripheral, and that the government could have granted Jones immunity to make him available to the defense. Id.
The defendants contend that the government is going to admit documents which implicate the defendants as admissions of co-conspirators in furtherance of the conspiracy under Rule 801(c). Since it is possible that the declarant-co-defendant will not take the stand at trial, the defendants will be faced with incriminating out-of-court declarations without the right of cross-examination. According to the defendants, these statements will not be peripheral and the witness would be available to the government through the granting of immunity. Therefore, the defendants contend that the government must choose between not offering these incriminating documents into evidence or severing the trial of defendants so that they may have the possibility of calling the declarants as witnesses.
The Court finds that Yates is distinguishable from this case. First, the court in that case had before it a statement of questionable reliability. In this case, the documents the government plans to introduce at trial are grounded on the presumed reliability of admissions against penal interest. And it is "the mission of the Confrontation Clause . . . to advance a practical concern for the accuracy of the truth-determining process in criminal trials . . .." Dutton v. Evans, 400 U.S. 74, 89, 91 S. Ct. 210, 220, 27 L. Ed. 2d 213 (1970). Thus, the reliability of the out-of-court declarations are of prime importance.
Second, the Court in Yates declined to address the question of whether the statement could be admitted under "any of the evolving, amorphous exceptions to the hearsay rule" but did first confront the question whether it was admissible as a failure to deny an accusation. 173 U.S.App.D.C. at 312, 524 F.2d at 1285. In this case, evidence would be admissible under a long-recognized rule of evidence. Under the Federal Rules of Evidence, admissions of a co-conspirator are not exceptions to the hearsay rule, but are simply not hearsay at all. Rule 801(d)(2)(E). Although the fact that evidence is admissible does not mean it does not violate the confrontation clause, California v. Green, 399 U.S. 149, 155-56, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970), the admissibility of evidence under a rule of evidence is a factor that is material to the court's determination. See Bruton v. United States, 391 U.S. 123, 128 n. 3, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968); Dutton v. Evans, 400 U.S. 74, 85-89, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970).
Third, in Yates the court observed that the declarant was equally available to the government and the defendant because the government could have given him immunity from prosecution. In Yates, the declarant was not being prosecuted. 173 U.S.App.D.C. at 311, 524 F.2d at 1284. In this case, granting immunity would foreclose prosecution of those defendants. Furthermore, there is no indication on the part of the defendants or any proffer of exculpatory evidence which would be available if the co-conspirators were called. If such a showing were made, it would decrease the reliability of the proposed evidence and favor severance. Moreover, there is no indication that severance would be an acceptable remedy. Even if the defendants were tried separately, they would still have their fifth amendment privilege.
Fourth, Yates included in its consideration the fact that the evidence was peripheral. United States v. Yates, 173 U.S.App.D.C. at 311, 524 F.2d at 1286. Other courts have not tended to treat that requirement with very much weight. See United States v. King, 552 F.2d 833, 846 n. 16 (9th Cir. 1976), Cert. denied, 430 U.S. 966, 97 S. Ct. 1646, 52 L. Ed. 2d 357 (1977). When there is substantial independent evidence to support the government's case this requirement is held to be satisfied. See United States v. Scholle, 553 F.2d 1109, 1120 (8th Cir. 1977), Cert. denied, 434 U.S. 940, 98 S. Ct. 432, 54 L. Ed. 2d 300 (1978). At this time the Court, of course, is completely unable to determine how devastating the evidence will be; thus, this factor can have little bearing on a pretrial determination in a case of this kind.
Fifth, other courts have focused on factors not discussed in Yates, which support the admission of the documents in this case. In United States v. Leonard, 161 U.S.App.D.C. 36, 494 F.2d 955 (1974) the court of appeals for this circuit suggested many factors which would be relevant to determine whether statements violated the confrontation clause. These factors included considerations which are present in this case: the co-conspirator allegedly had personal knowledge of the identity and role of the other participants, the jury will be able to weigh the credibility of the extra-judicial statements, the possibility that the statement was founded on faulty recollection was remote, and the statement was against the declarant's penal interest. Id., 161 U.S.App.D.C. at 50-51, 494 F.2d at 969-70.
Accordingly, under the facts of this case, the Court finds that under the case-by-case approach required by the Supreme Court's plurality in Dutton v. Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970), the defendant's constitutional right to confront the witnesses against them would not be violated by the introduction of reliable out-of-court declarations which satisfy the requirements of Rule 801(d)(2)(E). The Court recognizes that its duty under Rule 14 is a continuing one and that at present the contours of the evidence and prejudice has not yet been solidified. See United States v. Hilliard, 436 F. Supp. at 75-76.
An order in accordance with the foregoing shall be issued of even date herewith.