Opinion
Criminal Action No. 98-265 (NHP).
February 4, 1999
Jane L. Myers, Assistant, U.S. Attorney, FAITH S. HOCHBERG, UNITED STATES ATTORNEY, Newark, N.J., Attorneys for Plaintiff.
Salvatore T. Alfano, P.A., Bloomfield, N.J., Attorney for Defendant.
Alberto Kern, Howard B. Brownstein, Esq., BROWNSTEIN, BOOTH BARRY, Union City, N.J., Attorneys for Defendant, Marcos Glikas.
LETTER OPINION ORIGINAL ON FILE WITH CLERK OF THE COURT
Dear Counsel:
This matter comes before the Court on the joint motion of defendants Marcos Glikas and Alberto Kern for severance. This Court heard oral argument on January 11, 1999. For the reasons stated herein, defendants Marcos Glikas and Alberto Kern's joint motion for severance is DENIED.
DISCUSSION
Defendants Marcos Glikas ("Glikas") and Alberto Kern ("Kern") were indicted for conspiring to violate 18 U.S.C. § 1956, which proscribes money laundering. Thereafter, Glikas and Kern filed a joint motion for severance.Motion to sever are governed by Federal Rule of Criminal Procedure 14. Rule 14 provides, in pertinent part, that:
If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder 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.
The decision of whether to grant the severance motion lies within the sound discretion of the trial court. United States v. Reicherter, 647 F.2d 397, 400 (3d Cir. 1981); see also United States v. Samuel, No. CRIM.A. 98-190, 1998 WL 401705, at *4 (E.D.Pa. July 1, 1998).
In this matter, Glikas and Kern contend that a separate trial is warranted because, if severance is granted, Glikas will provide exculpatory testimony on behalf of Kern, thereby allowing Kern to receive a fair trial.
In United States v. Boscia, 573 F.2d 827, 832 (3d Cir.), cert. denied, 436 U.S. 911 (1978), the Third Circuit Court of Appeals outlined four factors that a district court should consider in deciding whether to grant severance on the ground that a co-defendant would supply exculpatory testimony:
(1) the likelihood that the co-defendant will testify;
(2) the degree to which such testimony would be exculpatory;
(3) the degree to which the testifying codefendant could be impeached; and
(4) judicial economy.
See also United States v. Gonzalez, 918 F.2d 1129, 1137 (3d Cir. 1990),cert. denied, 498 U.S. 1107 (1991); United States v. Provenzano, 688 F.2d 194, 199 (3d Cir.), cert. denied, 459 U.S. 1071 (1982).
I. The Likelihood That the Co-defendant Will Testify:
Since a defendant cannot compel a co-defendant to testify even if their trials are severed, "more than a mere possibility" that a co-defendant will testify is necessary. United States v. Provenzano, 668 F.2d 194, 198 (3d Cir.), cert. denied, 459 U.S. 1071 (1982) (citing United States v. Rosa, 560 F.2d 149, 156 (3d Cir.), cert. denied, 434 U.S. 862 (1977)). The majority of federal courts "question whether the defendant would actually call his co-defendant if he could, and whether the co-defendant would not claim his constitutional privilege even in a separate trial."United States v. Varbel, 579 F. Supp. 683, 685 (D.Ariz. 1984); see egs.,United States v. Bari, 750 F.2d 1169, 1177 (2d Cir. 1984), cert. denied, 472 U.S. 1019 (1985); United States v. Finklestein, 526 F.2d 517, 524 (2d Cir. 1975), cert. denied, 425 U.S. 960 (1976); United States v. Nelson, 606 F. Supp. 1378, 1386 (S.D.N.Y. 1985). As a result, courts have required "more than conclusory statements about the nature of the expected testimony." Varbel, 579 F. Supp. at 685. Cf. United States v. Neal, 27 F.3d 1035, 1047 (5th Cir. 1994), cert. denied, 573 U.S. 1008 (1994) (granting severance, the court explained that the "undisputed leader of the conspiracy" gave "extensive, specific, and exculpatory testimony both by affidavit and in camera and would have so testified in a separate trial on behalf of the co-defendants.").
In this matter, defendant Glikas has submitted two affidavits. In both affidavits, Glikas states that he is willing to testify if severance is granted and Kern is tried at a separate trial.
A review of federal case law indicates that although an affidavit is one of the better vehicles for indicating to the court that the defendant will testify, the submission of an affidavit is certainly not dispositive on the issue of severance. United States v. Litman , 547 F. Supp. 645, 651, n. 1 (W.D.Pa. 1982), aff'd , 661 F.2d 17 (3d Cir. 1981). The proffered testimony set forth in the certification must be carefully examined.
However, federal case law is clear that an offer to testify which is expressly conditioned on the testifying defendant being tried first "smacks of bad faith" especially since, if convicted, the testifying defendant may decide not to testify at the co-defendant's trial. See United States v. Bari, 750 F.2d 1169 (2d Cir. 1984), cert. denied, 472 U.S. 1019 (1985); see also United States v. Standard Drywall Corporation, 617 F. Supp. 1283, 1297 (E.D.N.Y. 1985).
In this matter, Glikas' initial certification attaches a condition to his testifying at a separate trial. Specifically, Glikas states in paragraph 2 of his certification that, " If my trial precedes the trial of co-defendants, Alberto Kern and Walter Stanzione [who is no longer a defendant in this matter], I would testify on their behalf at their trial." (emphasis added). Thus, this one factor alone militates against finding that Glikas is likely to testify at a separate trial.
Assuming arguendo, however, that Glikas' certification does meet the threshold requirement, severance should not be granted for the reasons stated herein.
II. The Degree To Which Such Testimony Would Be Exculpatory:
Exculpatory testimony should neither represent an assertion of ultimate fact, United States v. Ford, 870 F.2d 729, 731 (D.C. Cir. 1989), nor merely contradict portions of the government's case. United States v. Mariscal, 939 F.2d 884, 886 (9th Cir. 1991). Instead, the offered testimony should state specific facts necessary for the district court judge to determine that defendant will not obtain a fair trial. Id.
A district court also should review with skepticism an affidavit which consists of self-serving conclusory statements. United States v. Bari, 750 F.2d 1169, 1178 (2d Cir. 1984). In fact, alleged exculpatory testimony has been held by some courts to lack "a certain amount of credibility" if the testimony does not in some way contravene the affiant's own penal interests. United States v. Johnson, 713 F.2d 633, 641 (11th Cir. 1983), cert. denied, 465 U.S. 1081 (1984) (citing United States v. Metz, 608 F.2d 147, 156 (5th Cir. 1979), cert. denied, 49 U.S. 821 (1980); United States v. Alfonso, 552 F.2d 605, 616 (5th Cir.),cert. denied, 434 U.S. 857 (1977); United States v. Alejandro, 527 F.2d 423, 428 (5th Cir.), cert. denied, 426 U.S. 923 (1976)).
In this matter, Glikas' affidavits clearly fall short of the high standard required for granting a severance application on the grounds that the testimony will be highly exculpatory. In fact, Glikas' affidavits are replete with self-serving statements in addition to merely contradicting and/or denying the language of the indictment. For example, Glikas states:
— "There was no conspiracy between Kern and myself."
This statement simply tracks and contradicts the language of the indictment. Glikas also asserts that:
— "The cooperator's testimony is false [that Kern received money on his behalf]."
This is clearly an issue for the jury.
— "Kern never delivered any money which I knew represented the proceeds of drug trafficking."
— Clearly, a self-serving statement by Glikas that he did not know what was in the bag does not address Kern's knowledge of what was in the bag. Finally, Glikas contends that:
" I never had any conversations with anyone that I knew was about drug proceeds."
Again, this does not exculpate Kern because it does not address Kern's knowledge.
In sum, both certificationa are too general and, at this juncture, lack the substance which would warrant a severance. The proffered testimony simply does not address or provide sufficient exculpatory testimony to counter all of the evidence which the government has stated it will produce, most notably, the intercepted telephone conversations involving Kern, the February 1998 events and any admissible post-arrest statements made by Kern.
III. The Degree To Which The Testifying Codefendant Could Be Impeached
If Glikas were to testify, it is very likely that he would be subject to impeachment by the government. For example, the government contends that it would confront Glikas with the wiretapped conversations which may establish that both Glikas and Kern were aware that the bag contained illegal money. Additionally, the government asserts that it is going to offer testimony of cooperating witnesses who dealt directly with Kern and statements which were made by Kern himself. Notably, Glikas' affidavit addresses neither the wiretapped conversations nor other "criminal" events or statements involving Kern. The affidavit simply addresses the March 3rd incident. Finally, if Glikas were tried first and convicted, the government would certainly confront Glikas with that fact.
IV. Judicial Economy
It is apparent that judicial economy concerns militate against severance in this case since Glikas' and Kern's conduct is sufficiently intertwined. If this case were severed, much of the evidence would have to be presented again at a separate trial. See United States v. Wilson, 11 F.3d 346, 354 (2d Cir. 1993), cert. denied, 511 U.S. 1025 (1994). The Third Circuit has also held that it is preferable in conspiracy cases to try all of the defendants together in one proceeding so that the full extent of the conspiracy may be developed. United States v. Inigo, 925 F.2d 641, 656 (3d Cir. 1991); United States v. Provenzano, 668 F.2d 194, 199 (3d Cir. 1982), cert. denied, 459 U.S. 1071 (1982);United States v. Litman, 547 F. Supp. 645, 651 (W.D.Pa. 1982), aff'd, 661 F.2d 17 (3d Cir. 1981).
CONCLUSION
For the foregoing reasons, the showing of possible prejudice to either defendant Glikas or Kern is insufficient to warrant a severance at this time.