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

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.

--------

No. 91-6824

--------

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

Rule 8(b) states that "[t]wo or more defendants may be charged

in the same indictment or information 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."

There is a preference in the federal system for joint trials of

defendants who are indicted together. Joint trials "play a vital

role in the criminal justice system." Richardson v. Marsh, 481

U. S. 200, 209 (1987). They promote efficiency and "serve the

interests of justice by avoiding the scandal and inequity of

inconsistent verdicts." Id., at 210. For these reasons, we

repeatedly have approved of joint trials. See ibid.; Opper v.

United States, 348 U. S. 84, 95 (1954); United States v.

Marchant, 12 Wheat. 480 (1827); cf. 1 C. Wright, Federal Practice

and Procedure 223 (2d ed. 1982) (citing lower court opinions to

the same effect). But Rule 14 recognizes that joinder, even when

proper under Rule 8(b), may prejudice either a defendant or the

Government. Thus, the Rule provides,

[i]f it appears that a defendant or the government is

prejudiced by a joinder of . . . defendants . . . for trial

together, the court may order an election or separate

trials of counts, grant a severance of defendants or

provide whatever other relief justice requires.

In interpreting Rule 14, the Courts of Appeals frequently have

expressed the view that -mutually antagonistic- or

-irreconcilable- defenses may be so prejudicial in some

circumstances as to mandate severance. See, e.g., United States

v. Benton, 852 F. 2d 1456, 1469 (CA6), cert. denied, 488 U. S.

993 (1988); United States v. Smith, 788 F. 2d 663, 668 (CA10

1986); Keck, supra, at 765; United States v. Magdaniel-Mora, 746

F. 2d 715, 718 (CA11 1984); United States v. Berkowitz, 662 F. 2d

1127, 1133-1134 (CA5 1981); United States v. Haldeman, 181 U. S.

App. D. C. 254, 294-295, 559 F. 2d 31, 71-72 (1976), cert.

denied, 431 U. S. 933 (1977). Notwithstanding such assertions,

the courts have reversed relatively few convictions for failure

to grant a severance on grounds of mutually antagonistic or

irreconcilable defenses. See, e.g., United States v. Tootick,

952 F. 2d 1078 (CA9 1991); United States v. Rucker, 915 F. 2d

1511, 1512-1513 (CA11 1990); United States v. Romanello, 726 F.

2d 173 (CA5 1984). The low rate of reversal may reflect the

inability of defendants to prove a risk of prejudice in most

cases involving conflicting defenses.

Nevertheless, petitioners urge us to adopt a bright-line rule,

mandating severance whenever codefendants have conflicting

defenses. See Brief for Petitioners i. We decline to do so.

Mutually antagonistic defenses are not prejudicial per se.

Moreover, Rule 14 does not require severance even if prejudice is

shown; rather, it leaves the tailoring of the relief to be

granted, if any, to the district court's sound discretion. See,

e.g., United States v. Lane, 474 U. S. 438, 449, n. 12 (1986);

Opper, supra, at 95.

We believe that, when defendants properly have been joined

under Rule 8(b), a district court should grant a severance under

Rule 14 only if there is a serious risk that a joint trial would

compromise a specific trial right of one of the defendants, or

prevent the jury from making a reliable judgment about guilt or

innocence. Such a risk might occur when evidence that the jury

should not consider against a defendant and that would not be

admissible if a defendant were tried alone is admitted against a

codefendant. For example, evidence of a codefendant's wrongdoing

in some circumstances erroneously could lead a jury to conclude

that a defendant was guilty. When many defendants are tried

together in a complex case and they have markedly different

degrees of culpabiity, this risk of prejudice is heightened. See

Kotteakos v. United States, 328 U. S. 750, 774-775 (1946).

Evidence that is probative of a defendant's guilt but technically

admissible only against a codefendant also might present a risk

of prejudice. See Bruton v. United States, 391 U. S. 123 (1968).

Conversely, a defendant might suffer prejudice if essential

exculpatory evidence that would be available to a defendant tried

alone were unavailable in a joint trial. See, e.g., Tifford v.

Wainwright, 588 F. 2d 954 (CA5 1979) (per curiam). The risk of

prejudice will vary with the facts in each case, and district

courts may find prejudice in situations not discussed here. When

the risk of prejudice is high, a district court is more likely to

determine that separate trials are necessary, but, as we

indicated in Richardson v. Marsh, less drastic measures, such as

limiting instructions, often will suffice to cure any risk of

prejudice. See 481 U. S., at 211.

Turning to the facts of this case, we note that petitioners do

not articulate any specific instances of prejudice. Instead they

contend that the very nature of their defenses, without more,

prejudiced them. Their theory is that when two defendants both

claim they are innocent and each accuses the other of the crime,

a jury will conclude (1) that both defendants are lying and

convict them both on that basis, or (2) that at least one of the

two must be guilty without regard to whether the Government has

proved its case beyond a reasonable doubt.

As to the first contention, it is well settled that defendants

are not entitled to severance merely because they may have a

better chance of acquittal in separate trials. See, e.g., United

States v. Martinez, 922 F. 2d 914, 922 (CA1 1991); United States

v. Manner, 281 U. S. App. D. C. 89, 98, 887 F. 2d 317, 324

(1989), cert. denied, 493 U. S. 1062 (1990). Rules 8(b) and 14

are designed "to promote economy and efficiency and to avoid a

multiplicity of trials, [so long as] these objectives can be

achieved without substantial prejudice to the right of the

defendants to a fair trial." Bruton, 391 U. S., at 131, n. 6

(internal quotation omitted). While "[a]n important element of a

fair trial is that a jury consider only relevant and competent

evidence bearing on the issue of guilt or innocence," ibid.

(emphasis added), a fair trial does not include the right to

exclude relevant and competent evidence. A defendant normally

would not be entitled to exclude the testimony of a former

codefendant if the district court did sever their trials, and we

see no reason why relevant and competent testimony would be

prejudicial merely because the witness is also a codefendant.

As to the second contention, the short answer is that

petitioners' scenario simply did not occur here. The Government

argued that all four petitioners were guilty and offered

sufficient evidence as to all four petitioners; the jury in turn

found all four petitioners guilty of various offenses. Moreover,

even if there were some risk of prejudice, here it is of the type

that can be cured with proper instructions, and "juries are

presumed to follow their instructions." Richardson, supra, at

211. The District Court properly instructed the jury that the

Government had "the burden of proving beyond a reasonable doubt"

that each defendant committed the crimes with which he or she was

charged. Tr. 864. The court then instructed the jury that it

must "give separate consideration to each individual defendant

and to each separate charge against him. Each defendant is

entitled to have his or her case determined from his or her own

conduct and from the evidence [that] may be applicable to him or

to her." Id., at 865. In addition, the District Court

admonished the jury that opening and closing arguments are not

evidence and that it should draw no inferences from a defendant's

exercise of the right to silence. Id., at 862-864. These

instructions sufficed to cure any possibility of prejudice. See

Schaffer v. United States, 362 U. S. 511, 516 (1960).

Rule 14 leaves the determination of risk of prejudice and any

remedy that may be necessary to the sound discretion of the

district courts. Because petitioners have not shown that their

joint trial subjected them to any legally cognizable prejudice,

we conclude that the District Court did not abuse its discretion

in denying petitioners' motions to sever. The judgment of the

Court of Appeals is

Affirmed.

Justice Stevens, concurring in the judgment.

When two people are apprehended in possession of a container

filled with narcotics, it is probable that they both know what is

inside. The inference of knowledge is heightened when, as in

this case, both people flee when confronted by police officers,

or both people occupy the premises in which the container is

found. See ante, at 1-2. At the same time, however, it remains

entirely possible that one person did not have such knowledge.

That, of course, is the argument made by each of the defendants

in this case: that he or she did not know what was in the

crucial box or suitcase. See ante, at 2.

Most important here, it is also possible that both persons

lacked knowledge of the contents of the relevant container.

Moreover, that hypothesis is compatible with individual defenses

of lack of knowledge. There is no logical inconsistency between

a version of events in which one person is ignorant, and a

version in which the other is ignorant; unlikely as it may seem,

it is at least theoretically possible that both versions are

true, in that both persons are ignorant. In other words, dual

ignorance defenses do not necessarily translate into "mutually

antagonistic" defenses, as that term is used in reviewing

severance motions, because acceptance of one defense does not

necessarily preclude acceptance of the other and acquittal of the

codefendant.

In my view, the defenses presented in this case did not rise to

the level of mutual antagonism. First, as to Garcia and

Martinez, neither of whom testified, the only defense presented

was that the Government had failed to carry its burden of proving

guilt beyond a reasonable doubt. Nothing in the testimony

presented by their codefendants, Soto and Zafiro, supplemented

the Government's proof of their guilt in any way. Soto's

testimony that he did not know the contents of the box he

delivered with Garcia, as discussed above, could have been

accepted in toto without precluding acquittal of his codefendant.

Similarly, the jury could have accepted Zafiro's testimony that

she did not know the contents of the suitcase found in her

apartment, and also acquitted Martinez.

It is true, of course, that the jury was unlikely to believe

that none of the defendants knew what was in the box or suitcase.

Accordingly, it must be acknowledged that if the jury had

believed that Soto and Zafiro were ignorant, then it would have

been more likely to believe that Garcia and Martinez were not.

That, however, is not the standard for mutually antagonistic

defenses. And in any event, the jury in this case obviously did

not believe Soto and Zafiro, as it convicted both of them.

Accordingly, there is no basis, in law or fact, for concluding

that the testimony of Soto and Zafiro prejudiced their

codefendants.

There is even less merit to the suggestion that Soto or Zafiro

was prejudiced by the denial of their severance motions. Neither

Garcia nor Martinez testified at all, of course, and the District

Court explicitly cautioned the jury that the arguments made by

their attorneys were not to be considered as evidence. Ante, at

7. Moreover, the assertion by his counsel that Garcia did not

know the contents of the box is not inconsistent with Soto's

ignorance or innocence; nor is the similar assertion by counsel

for Martinez inconsistent with Zafiro's possible innocence. In my

opinion, the District Court correctly determined that the

defenses presented in this case were not "mutually antagonistic."

See App. 88-89.

I would save for another day evaluation of the prejudice that

may arise when the evidence or testimony offered by one defendant

is truly irreconcilable with the innocence of a codefendant.

Because the facts here do not present the issue squarely, I

hesitate in this case to develop a rule that would govern the

very different situation faced in cases like People v. Braune,

363 Ill. 551, 557, 2 N. E. 2d 839, 842 (1936), in which mutually

exclusive defenses transform a trial into "more of a contest

between the defendants than between the people and the

defendants." Under such circumstances, joinder may well be highly

prejudicial, particularly when the prosecutor's own case-in-

chief is marginal and the decisive evidence of guilt is left to

be provided by a codefendant.

/* The Supreme Court is one of great constraint. Usually changes

in procedure are made on the salami theory-- one thin slice at a

time. The point that the concurring opinion is making is that

this case is a poor one indeed for working out this question. */

The burden of overcoming any individual defendant's

presumption of innocence, by proving guilt beyond a reasonable

doubt, rests solely on the shoulders of the prosecutor. Joinder

is problematic in cases involving mutually antagonistic defenses

because it may operate to reduce the burden on the prosecutor, in

two general ways. First, joinder may introduce what is in effect

a second prosecutor into a case, by turning each codefendant into

the other's most forceful adversary. Second, joinder may invite

a jury confronted with two defendants, at least one of whom is

almost certainly guilty, to convict the defen- dant who appears

the more guilty of the two regardless of whether the prosecutor

has proven guilt beyond a reasonable doubt as to that particular

defendant. Though the Court is surely correct that this second

risk may be minimized by careful instructions insisting on

separate consideration of the evidence as to each codefendant,

ante, at 6-7, the danger will remain relevant to the prejudice

inquiry in some cases.

Given these concerns, I cannot share the Court's enthusiastic

and unqualified -preference- for the joint trial of defendants

indicted together. See ante, at 3. The Court correctly notes

that a similar preference was announced a few years ago in

Richardson v. Marsh, 481 U. S. 200, 209 (1987), and that the

Court had sustained the permissibility of joint trials on at

least two prior occasions. There will, however, almost certainly

be multidefendant cases in which a series of separate trials

would be not only more reliable, but also more efficient and

manageable than some of the mammoth conspiracy cases which the

Government often elects to prosecute. And in all cases, the

Court should be mindful of the serious risks of prejudice and

overreaching that are characteristic of joint trials,

particularly when a conspiracy count is included in the

indictment. Justice Jackson's eloquent description of these

concerns in his separate opinion in Krulewitch v. United States,

336 U. S. 440, 454 (1949), explains why there is much more at

stake here than administrative convenience. See also United

States v. Romanello, 726 F. 2d 173 (CA5 1984).

I agree with the Court that a "bright-line rule, mandating

severance whenever codefendants have conflicting defenses" is

unwarranted. See ante, at 4. For the reasons discussed above,

however, I think district courts must retain their traditional

discretion to consider severance whenever mutually antagonistic

defenses are pre- sented. Accordingly, I would refrain from

announcing a preference for joint trials, or any general rule

that might be construed as a limit on that discretion.

Because I believe the District Court correctly decided the

severance motions in this case, I concur in the Court's judgment

of affirmance.