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granting motion to sever after finding that likelihood of substantial prejudice to defendants outweighed judicial economy considerations
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05-CR-060 (NGG).
October 23, 2007
MEMORANDUM AND ORDER
On May 11, 2007, Defendants Anthony Aiello ("Aiello"), Anthony Donato ("Donato"), Anthony Indelicato ("Indelicato"), and Michael Mancuso ("Mancuso") (collectively "Codefendants" or "Noncapital Defendants") moved to sever their upcoming joint trial from that of Defendant Vincent Basciano ("Basciano"). (Docket Entry #295.) On May 22, 2007, Basciano joined the motion (Docket Entry #299); on July 9, 2007, the Government responded in opposition (Docket Entry #308); and on October 5, 2007, Codefendants filed their reply (Docket Entry #322). The parties attended a conference before this court on October 9, 2007, at which, among other issues, the motion to sever was discussed and the parties offered brief additional argument in support of their positions. For the reasons set forth below, Defendants' motion to sever is GRANTED.
I. Background
In 2004, Basciano and Donato were indicted by superseding indictment under docket number 03-cr-929 on several counts of racketeering. (Docket Entry #165 (November 18, 2004 Superseding Indictment).) Basciano alone was charged with conspiracy to murder and with the murder of Frank Santoro. (Id.) Donato pleaded guilty and Basciano proceeded to trial. On May 9, 2006 a jury found Basciano guilty of racketeering conspiracy but deadlocked on the conspiracy to murder and the murder of Frank Santoro charges. At a July 2007 retrial, a jury found Basciano guilty of all charges pertaining to the Santoro murder.
In the meantime, on January 26, 2005, the Government indicted Basciano and Dominick Cicale under docket number 05-060, which initiated the instant case. (Docket Entry #1, January 26, 2005 Indictment.) The Indictment charged Basciano and Cicale with murder in aid of racketeering of Randolph Pizzolo and charged Basciano with solicitation to murder Assistant United States Attorney Greg Andres ("Andres"), who prosecuted the 03-cr-929 case. (Id.) Both allegations were based upon consensually recorded conversations with Joseph Massino, then-Boss of the Bonanno crime family. (Id.) After Cicale pleaded guilty pursuant to a cooperation agreement, the Government filed an 18-count superseding indictment against the current defendants. (Docket Entry #170.)
Count One of the Superseding Indictment charged Basciano, Indelicato, and Aiello with racketeering. (Id. at 9.) As racketeering acts in support of Count One, the indictment charged, inter alia, Indelicato with the Santoro murder, Basciano and Aiello with the murder of Randolph Pizzolo, and Basciano alone with solicitation to murder Andres. (Id. at 10-11.) In separate counts, Basciano, Mancuso, and Aiello were charged with conspiring to murder and murdering Pizzolo in aid of racketeering, and Indelicato and Donato were charged with murdering Santoro in aid of racketeering. (Id. at 20-24.) Basciano, of course, has not been charged in connection with the Santoro murder in this case due to his prior conviction for that murder. All five defendants were eligible to receive the death penalty.
On April 2, 2007, the Government informed the court that the Attorney General had decided to pursue the death penalty against Basciano but would not do so against any of the other defendants. (Docket Entry #284.)
II. Discussion
Rule 14 of the Federal Rules of Criminal Procedure allows a trial court to grant a severance "if it appears that a defendant or the prosecution is prejudiced by a joinder . . . of defendants . . . for trial together," Fed.R.Crim.P. 14, and that decision is within the "sound discretion" of the district court, United States v. Lasanta, 978 F.2d 1300, 1306 (2d Cir. 1992). Nevertheless, "[t]here is a preference in the federal system for joint trials of defendants who are indicted together" because, in general, they promote efficiency and serve the interests of justice. Zafiro v. United States, 506 U.S. 534, 537 (1993); see also United States v. Cardascia, 951 F.2d 474, 483 (2d. Cir. 1991) (noting that the risk of some slight prejudice to codefendants is deemed outweighed by concerns for judicial economy, the risk of inconsistent verdicts resulting from separate trials, and the favorable position that later tried defendants obtain from familiarity with the prosecution's strategy). Joint trials are "often particularly appropriate in circumstances where the defendants are charged with participating in the same criminal conspiracy." United States v. Spinelli, 352 F.3d 48, 55 (2d Cir. 2003).
The Supreme Court has instructed that a district court should grant 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." Id. at 539; see also United States v. Sampson, 385 F.3d 183, 190 (2d Cir. 2004) ("[I]n order to prevail, the defendant must show not simply some prejudice but substantial prejudice" (emphasis in original) (internal quotation marks and citation omitted). The Zafiro Court identified a non-exhaustive set of situations in which such a risk might occur:
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 culpability, this risk of prejudice is heightened. Evidence that is probative of a defendant's guilt but technically admissible only against a codefendant also might present a risk of prejudice. 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.
Zafiro, 506 U.S. at 539 (citations omitted).
The Court also noted that a determination of prejudice requires a case by case determination and that limiting instructions "often will suffice" to cure the risk of prejudice. Id. Even so, this circuit has counseled that the presumption that jurors will adhere to limiting instructions "fades when there is an overwhelming probability that the jury will be called upon to perform humanly impossible feats of mental dexterity." United States v. McDermott, 245 F.3d 133, 139-40 (2d. Cir. 2001) (noting that in a case where prejudicial spillover is "overwhelming," jury instructions cannot be presumed to be effective). Finally, in a racketeering conspiracy case, evidence produced against other co-defendants is often admissible against all defendants to show evidence of the conspiracy, even when certain defendants may not have participated in each crime. See United States v. Diaz, 176 F.3d 52, 103 (2d Cir. 1999); United States v. Gammarano, No. 06-CR-072 (CPS), slip op., 2007 WL 2077735, at *8 (E.D.N.Y. 2007).
The Government incorrectly cites Zafiro for the proposition that "even in those rare instances when a defendant establishes a `high' risk of prejudice from a joint trial, severance is unwarranted because `less drastic measures such as limiting instructions often will suffice to cure any risk of prejudice.'" (Gov't Letter in Opposition dated July 9, 2007 ("Gov't Br.") at 4 (emphasis added).) The Court instead said that when the risk of prejudice is high "a district court is more likely to determine that separate trials are necessary, but . . . less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice." Zafiro, 506 U.S. at 539 (citation omitted). The Government's suggestion that "severance is unwarranted" when there is a high risk of prejudice distorts the principle set forth in Zafiro.
I now turn to an analysis of the particulars of this case.
A. Judicial Economy
Concern for judicial economy is one of the main justifications for the presumption in favor of joint trials. Zafiro, 506 U.S. at 537. In favor of severance, Codefendants argue that a joint trial will not promote judicial economy because the jury selection process will be "even more protracted" than it already is in a death penalty case. (Codefendants' Letter Motion dated May 11, 2007 ("Codefendants' Br.") at 4-5.) Specifically, Codefendants note the complexity of determining the number of peremptory challenges for each defendant and the "dissimilar strategic interests in jury selection" that noncapital and capital defendants have. (Id. at 5-7.) Codefendants further argue that severance would result in shorter separate trials and substantial cost savings. (Id. at 7-8.) The Government responds that severance would "more than double the total length of trial time," given the Government's need to present the same proof of the charged enterprise in both cases. (Gov't Br. at 4.) The Government adds that Codefendants' argument about the lengthening of the jury selection process in a joint trial is largely "conjecture." (Id. at 5.)
As both parties' submissions make clear, definitive predictions about the length of time a joint trial would take — as opposed to separate trials — is largely conjecture in a case of this magnitude and complexity. In this court's recent experience of presiding over multiple racketeering/murder trials and one death penalty trial, the Government may be correct that the sum total of two racketeering trials — one a death penalty trial and the other a non-death penalty trial — would involve more time on balance than a joint trial. On the other hand, as Codefendants point out, "[t]here are advantages and costs with respect to efficiency on both sides of the coin. Efficiency, thus is a double edged sword. Capital trials involve procedures and considerations foreign to non-capital trials." United States v. Lopez, 319 F. Supp. 2d 236, 239 (D.P.R. 2004).
Other district courts in this circuit have found efficiency arguments similar to those the Government advances here "not persuasive." See, e.g., United States v. Jackson, No. 02-CR-756 (LMM), 2003 WL 21787320, at *1-2 (S.D.N.Y. August 4, 2003). Judge McKenna noted in Jackson that the presence of death-penalty-eligible defendants may well delay the case due to the need for counsel for the non-death-eligible defendants to be present for evidence not relevant to their cases and for the extensive jury selection process unique to death penalty cases. (Id.); see also United States v. Maisonet, No. 97-CR-817 (DC), 1998 WL 355414 at *4 (S.D.N.Y. July 1, 1998).
I am similarly unpersuaded that concerns for judicial economy weigh in favor of a joint trial in this case, given the difficulty in accurately predicting whether a joint trial would in fact be more efficient than separate trials. Moreover, even assuming that a joint trial would be somewhat more efficient, this court is not aware of any authority that would compel a denial of severance based only on the possibility that two separate trials may result in lengthier trial time than a joint trial. Instead, in determining whether to grant severance, I must weigh concerns for judicial economy against the likelihood of substantial prejudice to Defendants. See United States v. Walker, 142 F.3d 103, 110 (2d Cir. 1998) ("A defendant seeking severance must show that the prejudice to him from joinder is sufficiently severe to outweigh the judicial economy that would be realized by avoiding multiple lengthy trials."). As discussed in detail below, the likelihood of substantial prejudice to Defendants outweighs judicial economy considerations on the facts of this case.
Neither has the court found any authority for Codefendants' position that such "practical concerns" are "in and of themselves sufficient grounds to warrant a severance." (Codefendants' Br. at 8.)
B. Spillover Prejudice
1. Basciano's Prior Conviction for the Santoro Homicide
As noted above, the Supreme Court has opined that spillover prejudice may occur where "evidence of a codefendant's wrongdoing . . . erroneously could lead a jury to conclude that a defendant was guilty." Zafiro, 506 U.S. at 539. However, "[t]he mere circumstance that some evidence is admissible against one defendant but not others in a joint trial does not usually constitute prejudice warranting severance." United States v. Murgas, 967 F.Supp. 695, 711 (N.D.N.Y. 1997). Codefendants argue that it will be "enormously prejudicial" to them if the jury hears testimony of Basciano's involvement in the Santoro murder and then learns that Basciano has already been convicted for his participation in it. (Codefendants' Br. at 3.) By contrast, the Government likens this case to the standard racketeering conspiracy case in which certain defendants are charged with crimes with which other defendants are not charged and introduction of evidence of uncharged crimes is not sufficient for severance. (Gov't Br. at 6.)
The Government is correct that in such cases, evidence of uncharged crimes may be admissible to show evidence of the conspiracy. Diaz, 176 F.3d at 103. In support of its position that this is one such case, the Government cites this court's denial of a motion to sever in Basciano's earlier trial with codefendant Patrick DeFilippo. (Gov't Br. at 6.) See United States v. Basciano ("Basciano I"), 03-CR-929 (NGG), Mem. Order at 7 (E.D.N.Y. Dec. 12, 2005)). InBasciano I, DeFilippo argued that evidence of "more serious charges" against Basciano was prejudicial to DeFilippo because he was not charged with those crimes. I declined to find spillover prejudice sufficient for severance because other than one additional charge of arson against Basciano, both defendants had been charged with substantially similar crimes. Basciano I, 03-CR-929 at 7; see also Stone, 2006 WL 436012, at *4 (denying severance where all defendants were charged with significant crimes of violence that were not "markedly different from each other" and thus prejudice requiring severance was unlikely).
This case differs from Basciano I and "standard" racketeering cases like it, however, in that Defendants Indelicato and Donato are charged with a violent crime for which Basciano has already been convicted. At oral argument, the Government was ambivalent as to whether it actually will seek to introduce Basciano's prior conviction, but has made clear its intention to introduce evidence that Basciano was the shooter in the Santoro murder. (Gov't Br. at 2.) With respect to the question of prejudice to Defendants Indelicato and Donato, the court sees no practical difference between introducing the conviction itself and merely introducing evidence tending to establish that Basciano was the shooter. If the Government introduces Basciano's prior conviction itself, the jury will be faced with the fact that a separate jury has already found an associate of Defendants Indelicato and Donato guilty of the Santoro murder, leading the jury to infer on that basis that they are guilty as well. If the Government instead seeks to introduce evidence of Basciano's involvement in the murder without introducing the conviction itself, the jury will no doubt wonder why Basciano is not charged in the Santoro murder and likely will infer that Basciano had been previously tried and convicted. In either case, the evidence of Basciano's wrongdoing in and of itself "erroneously could lead [the] jury to conclude that" Defendants Indelicato and Donato are guilty of the Santoro murder, a scenario specifically identified by Zafiro as a proper basis for severance. Zafiro, 506 U.S. at 539.
Furthermore, it is hard to imagine a situation in which a jury would be called upon to perform greater feats of "mental dexterity" than being asked to ignore the fact of Basciano's prior conviction in assessing Defendants Indelicato and Donato's guilt for the Santoro murder. Thus, I believe this to be exactly the type of situation in which the presumption that a jury will adhere to jury instructions fades, see McDermott, 245 F.3d at 139-40, and find that a limiting instruction would not suffice to cure the potential for prejudice, see Bruton v. United States, 391 U.S. 123, 128 (1968) (holding that in a joint trial, instructions directing the jury to disregard inculpatory testimony of codefendant that was obtained in violation of the constitutional right of cross-examination were ineffective; noting that "[t]he effect is the same as if there had been no instruction at all.").
Not only will prejudice from the introduction of Basciano's conviction likely spillover to Defendants Indelicato and Donato in this case, but there is also a substantial likelihood that Basciano would be prejudiced if the conviction were introduced against Codefendants. Federal Rule of Evidence 404(b) provides: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . ." Fed.R.Evid. 404(b); see also Old Chief v. United States, 519 U.S. 172, 181-182 (1997) ("There is . . . no question that propensity would be an `improper basis' for conviction and that evidence of a prior conviction is subject to analysis under Rule 403 for relative probative value and for prejudicial risk of misuse as propensity evidence."). In this circuit, "[c]ourts may admit evidence of prior bad acts if the evidence is relevant to an issue at trial other than the defendant's character, and if the probative value of the evidence is not substantially outweighed by the risk of unfair prejudice."United States v. Garcia, 291 F.3d 127, 136 (2d Cir. 2002) (internal quotation marks and citation omitted). Federal Rule of Evidence 403 provides that "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
Based on Fed.R.Evid. 404(b) and 403, it is uncertain whether Basciano's prior conviction for the Santoro murder would be admissible against him in a separate trial on the Pizzolo murder. The Government has not argued that it would offer the conviction as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." As such, its introduction may run afoul of Rule 404(b)'s prohibition against offering evidence of previous crimes to show propensity, and the danger of the unfair prejudice of the evidence outweighing its probative value would be extremely high. In a joint trial, introduction of Basciano's involvement in the Santoro murder as evidence against Indelicato and Donato may very well influence the jury's decision as to Basciano's guilt for the Pizzolo murder. Even in the face of an instruction that evidence of the Santoro murder could be considered only with respect to Defendants Indelicato and Donato or with respect to proving the existence of a criminal enterprise, the jury would be hard-pressed not to consider the prior conviction as evidence of a propensity to commit the Pizzolo murder.
Indeed, the fact that Basciano was convicted of the crime with which Defendants Indelicato and Donato are now charged distinguishes this case from a racketeering case in which uncharged crimes are admissible to show the conspiracy and in which prejudice is more easily cured by a limiting instruction.Cf. United States v. Matera, 489 F.3d 115, 120-21 (2d Cir. 2007) (concluding that evidence of uncharged crimes was admissible to prove the existence of a criminal enterprise in which the defendants participated where the district court had instructed the jury that it "may not conclude that a defendant is guilty of participating in criminal conduct merely from the fact that he was associated with other people who were guilty of wrongdoing."). In other words, because of Basciano's prior conviction, the Santoro and Pizzolo murders are no longer "discrete" crimes of the type often susceptible to limiting jury instructions. Cf. Stone, 2006 WL 436012, at *3 (rejecting the argument that the jury could not separate "one discrete crime from another" where defendants are charged with separate violent crimes).
Accordingly, I find that introduction of evidence of Basciano's involvement in the Santoro murder and his conviction for that murder would negatively "affect the jury's ability fairly and rationally to evaluate the evidence of" the defendants' guilt in this case. United States v. Hernandez, 85 F.3d 1023, 1029 (2d. Cir. 1996). Thus, severance is warranted on that basis.
2. Introduction of Kenneth Champlin Testimony
The testimonial statements of witnesses absent from trial are admissible only where (1) "the declarant is unavailable," and (2) "the defendant has had a prior opportunity to cross-examine."Crawford v. Washington, 541 U.S. 36, 59 (2004).
At an earlier trial of Basciano, the Government offered into evidence the prior testimony of unavailable witness Kenneth Champlin regarding the aftermath of the Santoro murder. (Codefendants' Oct. 5, 2007 Letter in Reply ("Codefendants' Reply Br.") at 4.) The evidence was elicited at a still earlier Basciano trial, at which time Basciano's attorney had a full opportunity to cross examine Champlin. (Id.) According to Codefendants, the Government has acknowledged that Champlin's testimony would be inadmissible against Codefendants but "has not assured us that it will not seek to use this testimony against Basciano at a joint trial." (Id.)
While it is not clear to the court the purpose for which the Government might seek to introduce the Champlin testimony against Basciano, the court agrees with Codefendants that its introduction would pose a Crawford problem for Defendants Indelicato and Donato because their counsel have not had opportunity to cross-examine Champlin. In addition, a limiting instruction directing the jury to consider Champlin's testimony only as to Basciano likely would be ineffective given the substantial similarity between portions of Champlin's testimony and Dominick Cicale's testimony, both of which are inculpatory as to Indelicato and Donato. Cf. United States v. Potamitis, 739 F.2d. 784, 788-89 (2d Cir. 1984) (holding that the introduction of the grand jury testimony of an unavailable witness against one defendant did not prejudice codefendants where the district court issued a limiting instruction and the testimony did not inculpate the codefendants). Thus, the potential Crawford problem posed by introduction of the Champlin testimony, which could not be solved by a limiting instruction, weighs in favor of severance.
3. Death-Qualified Jury
The trial of a non-capital defendant before a death-qualified jury does not, in and of itself, violate a defendant's Sixth Amendment rights. Buchanan v. Kentucky, 483 U.S. 402, 420 (1987). Indeed, Judge Glassser has recently rejected the contention that a non-capital defendant will suffer prejudice by a trial before a death-qualified jury in a racketeering case, stating that "the institutional and public interest in a single trial, balanced against the only minimal risk that a death-qualified jury will be more likely to convict, favors denying the motion. . . . Ultimately, a death-qualified jury is still charged with a duty to first determine the guilt or innocence of the individual based on the evidence presented in the case." United States v. Stone, No. 05-CR-401 (ILG), 2006 WL 436012, at *5 (E.D.N.Y. Feb. 22, 2006). Other district courts in this circuit, while acknowledging that a death-qualified jury "may not be sufficient in itself to justify a severance," have viewed the potential for prejudice to non-death eligible defendants tried before death-qualified juries as "further support" for severance. See, e.g., United States v. Rollack, 64 F. Supp. 2d 255, 257 (S.D.N.Y. 1999); Maisonet, 1998 WL 355414 at *4 ("[T]he inclusion of death penalty-eligible offenses in the indictment further complicates this case, providing additional support for severance."); cf. United States v. Bin Laden, 109 F. Supp. 2d 211, 221-22 (S.D.N.Y. 2000) (holding that severance was not warranted based on a noncapital defendant being tried before a death-qualified jury where there was "no balance to be tipped" in favor of severance because no other potential for spillover prejudice existed).
Codefendants incorrectly state that the Supreme Court has "acknowledged that `death-qualified' juries are `somewhat more conviction prone than non-death-qualified juries.'" (Codefendants' Br. at 9.) In fact, the Supreme Court has, in two cases, "assumed" that this is so without deciding the question.See Buchanan, 483 U.S. at 415 n. 16; Lockhart v. McCree, 476 U.S. 162, 173 (1986).
My recent experience in trying a death penalty case, see United States v. Wilson, No. 04-CR-1016 (NGG), has convinced me that the different trial strategies employed by counsel in approaching jury selection in a death penalty trial may in fact be sufficient on their own to justify severance where one defendant faces the death penalty and the others do not. It is not necessary to reach that issue here, however, because when these concerns combine with a high likelihood of spillover prejudice, as in this case, they provide "further support" for severance.
4. Introduction of the Massino Tapes, the Tartaglione Tapes, and Evidence of a Plot to Kill Andres
Codefendants argue that introduction of the Massino and Tartaglione tapes and evidence that Basciano plotted to kill Andres also support severance because they are likely to cause additional spillover prejudice. (Codefendants' Reply Br. at 5-7.) Because I find that the likelihood of spillover prejudice (discussed supra), combined with the possibility of antagonistic defenses (discussed infra), is sufficient to support severance, I decline to reach the question of whether or not introduction of this evidence would support severance.
C. Antagonistic Defenses
"Mutually antagonistic defenses are not prejudicial per se,"Zafiro, 506 U.S. at 538, but "antagonistic defenses may conflict to such a degree that codefendants are denied a fair trial,"United States v. Cardascia, 951 F.2d 474, 484 (2d Cir. 1991). The "defenses must conflict to the point of being so irreconcilable as to be mutually exclusive before we will find such prejudice as denies defendants a fair trial." Id. "Defenses are mutually exclusive or irreconcilable if, in order to accept the defense of one defendant, the jury must of necessity convict a second defendant." Id.
Codefendants state that Dominick Cicale testified at Basciano's recent trial that Basciano's order to murder Pizzolo was canceled after Basciano's arrest and that the order was given anew by Defendant Mancuso. (Codefendants' Reply Br. at 7.) As a result, Codefendants argue that Basciano's defense may be to acknowledge the existence of a plot to kill Pizzolo, while arguing that Basciano renounced his participation in the conspiracy, and that the order resulting in Pizzolo's death came from Mancuso. (Id.) By contrast, Codefendants maintain, Mancuso and Aiello will not concede that there was a conspiracy to kill Pizzolo, and will deny any involvement in Pizzolo's death. (Id.)
The Government has not responded to this particular contention, and the court has no way of knowing with certainty whether Basciano's defense counsel will take this approach to Cicale's testimony. The defense strategy posited by the Codefendants, however, is more than bald conjecture given the knowledge of Cicale's prior testimony and the knowledge that he will again be a significant Government witness in the upcoming trial. Cf. United States v. Washington, 819 F.Supp. 358, 363 (D. Vt. 1993) (rejecting antagonistic defense argument where codefendant failed to articulate specific defenses that were at odds with each other and how they were mutually exclusive). In one of Basciano's prior trials, Basciano's codefendant, Patrick DeFilippo, asserted that his defense would be to show that a third party committed a murder instead of DeFilippo, and that Basciano ordered the killing. Basciano I, 03-CR-929 at 9. Basciano contended that DeFilippo's defense was antagonistic because it placed the blame on him for a crime for which DeFilippo was charged. (Id.) I concluded that such defenses were "no more than merely inconsistent or conflicting. DeFilippo seeks to show that Basciano was involved in the Sciascia murder, but Basciano is not charged in that murder, and cannot be found guilty of it." (Id.) By contrast here, Mancuso and Basciano are both charged in the Pizzolo murder. Thus, to the extent that the jury believes Basciano's defense that he rescinded the hit on Pizzolo and Mancuso reordered it, the defenses are more than merely inconsistent; they are in direct conflict.
In United States v. Copeland, 336 F.Supp.2d 223, 225 (E.D.N.Y. 2004), the court faced the question of whether severance is warranted "when a co-defendant offers, in contradiction of the government's theory, a neutral third party's exculpatory identification testimony implicating another codefendant." The court concluded that severing the first defendant, Copeland, from the second defendant, Vasquez, was warranted because the jury "cannot logically accept both [defendants'] defenses as true: Copeland's theory of defense (i.e., he was not involved in the bank robbery) is mutually antagonistic to Vasquez's theory (i.e., Copeland — not Vasquez — entered the bank to commit the robbery)." (Id.) The same is the case with Cicale's third party testimony here: the jury cannot logically accept both Basciano's defense that he rescinded the Pizzolo hit and Mancuso reordered it, and Mancuso's defense that he had no involvement in the Pizzolo murder. As the court found in Copeland, I find that "[t]he prejudice stemming from a neutral third party's identification testimony is far more prejudicial than mere self-serving finger-pointing testimony by co-defendants" (id.), and I accordingly conclude that the likelihood of antagonistic defenses also supports severance in this case.
IV. Conclusion
Because of the likelihood of spillover prejudice and antagonistic defenses, Codefendants' motion to sever is GRANTED. Defendants Aiello, Donato, Indelicato, and Mancuso will be tried first in one trial, and Defendant Basciano thereafter will be tried in a separate trial. Opening statements in the first trial will take place on Monday May 6, 2008, preceded by jury selection. The jury-selection process for the Basciano trial will begin on Monday, August 19, 2008.
SO ORDERED.