United States v. E. Graydon Shuford, United States of America v. Herman S. Jordan, JR., 454 F.2d 772, 4th Cir. (1971)
United States v. E. Graydon Shuford, United States of America v. Herman S. Jordan, JR., 454 F.2d 772, 4th Cir. (1971)
United States v. E. Graydon Shuford, United States of America v. Herman S. Jordan, JR., 454 F.2d 772, 4th Cir. (1971)
2d 772
F. Lee Bailey, Boston, Mass. (N. Welch Morrisette, Jr., Columbia, S. C.,
Gerald Alch, Boston, Mass., Ralph C. Robinson, Jr., Columbia, S. C., on
brief), for E. Graydon Shuford.
C. D. Hopkins, Jr., Hanahan, S. C. (Malcolm M. Crosland, Charleston, S.
C., on brief), for Herman S. Jordan, Jr.
Marvin L. Smith and Robert G. Clawson, Jr., Asst. U. S. Attys. (John K.
Grisso, U. S. Atty., on brief), for United States.
Before HAYNSWORTH, Chief Judge, SOBELOFF, Senior Circuit Judge,
and WINTER, Circuit Judge.
SOBELOFF, Senior Circuit Judge:
This case raises one of the problems sometimes encountered when two
criminal defendants, each surrounded by a multitude of procedural
protections, are tried jointly and the effectuation of one defendant's rights
necessarily works an infringement of the rights of the other.
E. Graydon Shuford and Herman S. Jordan, Jr., appeal from their
convictions under 18 U.S.C. Secs. 371 and 1001, for (1) the knowing
submission of a false document with reference to a matter within the
jurisdiction of the Department of Justice and (2) conspiracy. Each
* The events leading to these convictions began in the fall of 1969 when
Shuford, an attorney specializing in personal injury cases, helped establish the
West Ashley Physical Therapy Laboratory ("Laboratory") in conjunction with
one Gene H. Long. The latter, named in the indictment as a co-conspirator but
never brought to trial, was an experienced physical therapist who ran the
Laboratory and was responsible for billing patients and general record keeping.
The Laboratory was formed in order to provide physical therapy for those of
Shuford's clients who required such treatment.
Two weeks after the Laboratory opened, Long approached Shuford and told
him that some of the physical therapy patients were not keeping their
appointments. Shuford instructed Long to bill these patients for their unkept
appointments anyway. Several days later, Long had occasion to speak with
Jordan, a legal investigator employed in Shuford's office, about the unkept
appointments. Jordan, when informed by Long of Shuford's earlier instructions,
told Long to do as he had previously been directed.
Before the trial began and again after the prosecution submitted its evidence,
Shuford moved that Jordan's case be severed from his own so that he might
have the benefit of Jordan's testimony.1 Jordan likewise moved to have his case
severed and joined in Shuford's motion. Although Shuford testified in his own
behalf, Jordan ultimately decided not to take the stand. According to Jordan's
statement to the court in support of Shuford's second motion for severance, two
considerations prompted his decision not to testify: First, he wanted to avoid
cross-examination that would bring to light certain prior convictions of his, and
Before ruling on the motions for severance, the trial judge, in an endeavor to
meet Jordan's objections to taking the stand in the joint trial, offered to forbid
the Government from raising Jordan's prior criminal record on crossexamination. Jordan, however, still remained unwilling to testify, preferring to
challenge the sufficiency of the Government's case without exposing himself as
a witness in his own behalf. The trial judge denied the severance motions.
Shuford argues that only if severance were granted and Jordan were not before
the court as a defendant could he have called Jordan to testify in his behalf.
Since Jordan was the only witness Shuford could present to controvert the
testimony of Long, the Government's chief witness, Shuford contends that
denial of the severance so prejudiced his defense as to destroy the fairness of
his trial.
II
7
For these reasons, although Rule 14 of the Federal Rules of Criminal Procedure
places the grant or denial of a severance in the sound discretion of the trial
judge, Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954);
United States v. Frazier, 394 F.2d 258 (4th Cir. 1968), if a "substantial degree
of prejudice" springs from a joint trial, a severance is mandated. United States
v. Morgan, 394 F.2d 973 (6th Cir. 1968); United States v. Burgio, 279 F.Supp.
843 (S.D.N.Y.1968). Not surprisingly, the facts peculiar to each case will
determine whether sufficient prejudice exists to make the denial of a severance
reversible error. Schaffer v. United States, 221 F.2d 17, 19 (5th Cir. 1955).
9
10
The leading exposition of this proposition is United States v. Echeles, 352 F.2d
892 (7th Cir. 1965). Echeles, a member of the Illinois bar, was charged,
together with two others, with suborning perjury, impeding the administration
of justice and conspiracy. During the joint trial, it appeared that admissions
previously made by Echeles' co-defendants would be introduced into evidence
against them. Echeles contended that these admissions reflected unfairly on the
question of his own guilt. Moreover, he asserted, other statements previously
made by his co-defendants- absolving him from any part in the wrongdoingwould be admissible only if the co-defendants repeated them on the witness
stand. Echeles moved for a severance on the ground that, since the Fifth
Amendment prohibited him from calling his co-defendants to testify in his
behalf, his only possible protection was through the grant of a severance. The
trial court denied the motion. The Seventh Circuit reversed, holding on these
facts that denial of the severance so prejudiced Echeles' defense that a new trial
was required.2
11
III
12
At the trial, Jordan's testimony was sought by Shuford in regard to a crucial fact
on which the Government and Shuford were in sharp disagreement, namely the
precise nature of Shuford's instructions to Long regarding billing practices.
Shuford testified that he advised Long that the Laboratory could bill patients
for missed appointments, but he added the admonition that these items should
be handled in a manner as not to appear in later litigation or settlement
negotiations.3 Long, in contrast, testified to a version that was significantly
different. He strongly suggested that Shuford was intending to use the
Thus the situation presented to the jury was that if they credited Long, then
they could find that Shuford intended to falsify the therapy bill submitted to the
Government. On the other hand, if they believed Shuford, they could see him
as the innocent victim of Long's failure to follow instructions. Plainly, the guilt
or innocence of Shuford hinged, in large measure, on the outcome of this
credibility dispute.
18
19
20
In its brief on appeal, the Government argues that, even if severance were
20
In its brief on appeal, the Government argues that, even if severance were
granted, there is no assurance that Jordan "would be any more willing to waive
his Fifth Amendment privilege in a separate trial as opposed to a joint trial." In
support of this contention, we are cited to a number of cases which have, out of
a similar scepticism, upheld the denial of a severance in circumstances arguably
analogous to those present here: e. g., United States v. Frazier, 394 F.2d 258
(4th Cir. 1968); United States v. Kilgore, 403 F.2d 627 (4th Cir. 1968), cert.
denied, 394 U.S. 932, 89 S.Ct. 1204, 22 L.Ed.2d 462 (1969); United States v.
Kahn, 381 F.2d 824 (7th Cir. 1967), cert. denied, 389 U.S. 1015, 88 S.Ct. 591,
19 L.Ed.2d 661 (1967); Kolod v. United States, 371 F.2d 983 (10th Cir. 1967).
21
However, none of the cases relied upon by the Government is apposite here. In
those cases, the courts simply refused to accept an appellant's unsupported
assertion that, if severance had been ordered, a co-defendant would thereafter
have waived his Fifth Amendment privileges and testified as promised.6 Where,
for the first time on appeal, a party raises such an argument without support in
the record, an appellate court rightfully refuses to indulge in pure supposition as
to what the behavior of a co-defendant would have been if the requested
severance had been granted.
22
23
24
25
26
27
29
30
Before the commencement of the trial, Shuford made a motion for a severance.
Through counsel, he stated that he intended to take the witness stand, that his
testimony would be favorable to Jordan, as well as to himself, that he had
expected Jordan to testify in his own defense, and that such testimony would
also be favorable to Shuford. He learned, however, from Jordan's attorneys that
Jordan might not testify for fear that the Government would use a prior
conviction to impeach him as a witness. At that time he represented that Jordan
would be willing to testify as a witness for Shuford if Jordan was not then on
trial, but he anticipated some problem if the trial proceeded without a
severance.
31
The motion was denied at that time with leave to renew it later. It was renewed
later, after the close of the Government's case, at which time Shuford's
attorneys had been informed that the decision had been made to withhold
Jordan from the witness stand. Shuford's lawyer then represented to the court
that if Jordan were severed from the trial, a mistrial being declared as to him, so
that Shuford could call him as a witness in the continuation of the trial as to
Shuford, Jordan would testify that he knew of no instructions to Long to falsify
reports, that Jordan knew of no error or falsity in the Wheat bill until he learned
33
Jordan and his attorneys participated in this discussion only to the extent of a
statement that it was not then anticipated that Jordan would testify for the
reasons previously suggested by Shuford's attorney, fear that the Government
would use the earlier conviction to impeach him and fear that his appearance as
a witness might somehow bolster the Government's case against Jordan.
34
The District Court thereupon denied Shuford's motion, but it did so with an
extension of substantial protection to Jordan should he decide to testify. The
Court stated that if Jordan should testify in the joint trial it would not permit the
Government to use his prior conviction as a basis for impeachment of him as a
witness.
35
Thereafter, Jordan made a motion for a directed verdict which was denied. He
then moved for a severance on the ground that a joint trial with Shuford was
unfair to Jordan. He had not joined in Shuford's earlier motion to sever,
however, and at no time did he indicate a willingness to have a mistrial declared
as to him and to testify, without a claim of his Fifth Amendment privilege, as a
witness for Shuford in a continuation of the trial as to Shuford. The record
contains no disclaimer by Jordan of Shuford's lawyer's pretrial representation
that Jordan would be willing to testify as a witness for Shuford if Jordan were
not then on trial, but there is no affirmative representation by Jordan, or his
lawyer, with respect to any phase of the matter, and, with respect to him, the
situation had materially changed after the joint trial had proceeded to the close
of the Government's case.
36
At the close of the Government's case, the only practical course open to the
Court, if a severance was to be granted, was the one suggested by Shuford's
counsel-that a mistrial be declared as to Jordan and the trial proceed as to
Shuford. 1
37
If Jordan had then been eliminated from the case on Shuford's motion under
circumstances which would permit his subsequent separate trial, it seems to me
highly speculative that Jordan would have been available as a witness in
Shuford's defense in any meaningful sense. No longer on trial himself, Jordan
would then have been without the protection of the Court's order preventing the
Government's impeachment use of his prior criminal record. At that time his
counsel would have been compelled to advise him that whatever he said as a
witness in Shuford's defense might be used in whole or in part in his subsequent
trial. If he had any concern that his testimony as a witness might bolster the
Government's case against him, as was represented in Shuford's second motion
for a severance, the inhibiting weight of that concern would be as heavy upon
Jordan whether or not he remained jointly on trial with Shuford.
38
Under all these circumstances, therefore, it seems to me that the District Judge's
assurance that Jordan would not be subject to impeachment by the Government
on the basis of his prior record if he testified at the joint trial was the fairest and
most practical protection available, and it was equally so in the interest of both
Shuford and Jordan. A severance would have given neither one more protection
on that score and would not tend to alleviate in any way Jordan's concern about
filling in some gap in the Government's case against him.
39
Far from abusing his discretion, therefore, it seems to me the District Judge
offered a reasonable solution to the dilemna of the defendants. Rather than
depriving the trial of essential fairness, it seems markedly fair. Now we give
assurance that Jordan will testify in Shuford's defense since we leave standing
his conviction as an aider and abettor, conditioned upon Shuford's subsequent
conviction, but neither Shuford nor Jordan had any rightful claim to that kind of
advantage.2 The District Court's very practical resolution of the matter was
more in the interest of justice and without the taint of basic unfairness which,
alone, would warrant our awarding a new trial because of a denial of a motion
for severance.
40
The situation in Echeles3 was far different from the one which confronted the
District Judge here. Echeles had represented Arrington, a defendant in a
narcotics case who claimed an alibi. Arrington procured the falsification of a
motel registration card and supporting testimony of the motel operator and clerk
in aid of the alibi defense. The falsity of this evidence was discovered before
the conclusion of the narcotics case. Thereupon, Arrington admitted his
participation in the perjury, but twice in open court informed the judge that
Echeles, his lawyer, had had nothing to do with it.
41
When Echeles, Arrington and others, were being tried on the perjury charges,
41
When Echeles, Arrington and others, were being tried on the perjury charges,
Arrington's admissions of perjury, made in the narcotics trial, were received in
evidence, but his statements exonerating Echeles were excluded. Unlike this
case, Arrington was the principal who had full knowledge of the extent, if any,
to which Echeles had participated in the perjurious scheme. Twice in the
narcotics case, while confessing his own participation, he had stated that
Echeles had nothing to do with it, and there was no reason to suppose he would
not repeat such statements if, in a severed trial, Echeles did call him as a
witness in his defense. Moreover, the introduction of Arrington's admissions
and the exclusion of his accompanying exoneration of Echeles inevitably had a
prejudicial effect on Echeles, the lawyer representing Arrington when the
perjured testimony and false registration card were introduced.
42
Here the situation was quite different. Shuford stood in no comparable need of
Jordan's testimony, for Jordan could offer no direct contradiction of Long's
testimony about the instructions he had received from Shuford. Nor did any
extrajudicial admissions of Jordan come into the case which adversely affected
Shuford's interest.
43
And, finally, the Court here, by denying the Government the right to use
Jordan's prior criminal record in his cross examination, freed Jordan from all
substantial reason for not taking the witness stand in the joint trial which would
not be present in an equal way had Shuford's severance motion been granted. In
Echeles, nothing was done to relieve Arrington's very understandable
disinclination to testify in a joint trial; probably nothing of that sort could have
been done.
44
This case simply cannot be blown up into the extraordinary kind of situation
presented in Echeles. It is a frequently encountered situation routinely left to
the discretion of the trial judge. The manner in which the trial judge exercised
his discretion here deserves our commendation rather than our criticism.
45
When Shuford's attorney first moved for severance, he stated to the trial judge,
"I know what [Jordan's] testimony would be, and it directly contradicts the
indictment."
At the conclusion of the Government's case, in arguing Shuford's second
motion for severance, made with leave of court, Shuford's attorney was even
more explicit. He asserted, "Jordan would testify if he could be produced that
there was no instruction to his knowledge as the witness Long has testified to
falsify or build up any therapy lab reports"; that he had no knowledge that the
Mack C. Wheat bill was false or erroneous in any respect until the criminal
investigation began; and that he conspired with no one to create any false or
fraudulent reports as to anyone involved.
2
Other courts likewise have recognized that a severance is due where the moving
defendant needs the evidence of a codefendant; this need is unlikely to be met
in a joint trial; and "there is a substantially greater likelihood" that the evidence
would be forthcoming if severance were granted. United States v. Gleason. 259
F.Supp. 282 (S.D.N.Y. 1966). See also United States v. Addonizio, 313
F.Supp. 486 (D.C.N.J.1970)
It is significant that, in this case, severance would only have required two
relatively uncomplicated trials in place of one-not an undue burden from the
viewpoint of judicial administration. Where severance would necessitate a great
number of otherwise unnecessary trials or the duplication of an unusually
complex trial, a district court, in the exercise of its discretion, could well
consider these factors as possible counterweights to the benefits accruing to the
moving defendant from severance in the particular circumstances. See United
See, e. g., United States v. Kilgore, 403 F.2d 627, 628 (4th Cir. 1968), cert.
denied, 394 U.S. 932, 89 S.Ct. 1204, 22 L.Ed.2d 462 (1969):
It does not appear, however, that an adequate record was made below to sustain
such a contention. It was nowhere demonstrated that the codefendant was
willing, at a separate trial, to corroborate Morris' story * * *. We cannot simply
assume that the corroborative testimony would have been forthcoming * * *.
To the same effect, see, United States v. Kahn, 366 F.2d 259, 263-264 (2d
Cir.), cert. denied, 385 U.S. 948, 87 S.Ct. 321, 17 L.Ed.2d 226 (1966); United
States v. Kahn, 381 F.2d 824 (7th Cir.), cert. denied, 389 U.S. 1015, 88 S.Ct.
591, 19 L.Ed.2d 661 (1967).
In his dissent, Judge Haynsworth would uphold the denial of the severance
because in his view the record does not reflect a sufficient likelihood that
Jordan would testify at Shuford's separate trial and that, in fact, it would be
against Jordan's interest so to testify
It is true that fine judgments as to Jordan's state of mind in the event of
severance are not easily made. While it would overstate the matter to say that
beyond any possibility of doubt Jordan would testify as promised, it is as
certain as may reasonably be expected. We differ with our dissenting brother in
the interpretation of the record in this regard. Jordan's failure to repeat in detail
the arguments and conclusions of Shuford's attorney, recited in the presence of
Jordan and his attorney, concerning Jordan's testimony is, to our minds, highly
indicative of their agreement with Shuford's analysis and that if severance were
granted Jordan would in fact testify. Significant is the fact that the trial court
was effectively apprised by both counsel of the problem presented. Severance
was the obviously available solution.
Shuford also raises a number of alleged errors in the trial court's evidentiary
rulings and challenges the sufficiency of the evidence to convict him. In view of
our present holding reversing Shuford's conviction, which will require a retrial,
it is unnecessary to decide these issues at the present time. They may not arise
in the new trial, or if they do, the context may be different
10
before the principal and where the commission of a crime is proved, an aider
and abettor may be tried even if the principal is unknown. Feldstein v. United
States, 429 F.2d 1092 (9 Cir.), cert. denied, 400 U.S. 920, 91 S.Ct. 174, 27
L.Ed.2d 159 (1970)
1
It is possible that Jordan and his lawyer would have consented to this since he
later sought a severance as to himself, but the record contains no affirmative
evidence of it. He might well have withheld his consent in the hope of erecting
a bar against his subsequent retrial
Since the developments have left Jordan with no hope of avoidance of his
conviction except by Shuford's acquittal, he has every incentive for active
cooperation to procure that acquittal, even to the point of grave incrimination of
himself in the process