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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
. . . for trial . . . , the court may order an election or
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.