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USA v.  Clarence E. Plato and Bishop C. Graham.  09-2099 and 2716.

Clarence Plato and Bishop Graham were jointly tried and convicted by a jury of distributing crack cocaine in violation of 21 U.S.C. § 841(a)(1). Law enforcement officers caught the pair on videotape selling crack cocaine to a confidential informant inside a car parked at a restaurant in Springfield, Illinois. Graham argues that his trial should have been severed from Plato’s because Plato’s counsel repeatedly argued to the jury that Graham was guilty.

We affirm Graham’s conviction. His argument for separate trials is waived because he failed to renew his pretrial motion for severance at the close of the evidence. Waiver aside, the argument is meritless; antagonistic defenses do not necessarily require severance. Zafiro v. United States, 506 U.S. 534, 538 (1993). Rather, Graham must show that the joint trial deprived him of a specific trial right, and he cannot do so.

Both defendants pleaded not guilty and were set to be tried together. Graham filed a motion for severance on the ground that the government would likely use Plato’s statements to the police, and if Plato did not testify, this would violate Graham’s Sixth Amendment right to confront the witnesses against him. See Bruton v. United States, 391 U.S. 123 (1968).

The government agreed not to use Plato’s incriminating statements at trial but reserved the right to use them at sentencing. In light of the government’s stipulation not to introduce Plato’s statements at trial, the district court denied the severance motion.

Plato did not testify at trial. His defense was simple and it took direct aim at Graham: Graham had arranged and executed the drug sale, and Plato had nothing to do with it.  Plato’s counsel argued in no uncertain terms that Graham was guilty, and Graham claims on appeal that these statements compromised his right to a fair trial.

A. Joint Trial

Graham argues that he was deprived of his right to a fair trial because his trial was not severed from Plato’s. Although he moved for severance before trial, he did not renew his motion at the close of the evidence. The law in our circuit is clear: Failure to renew a motion to sever at the close of evidence results in waiver. See, e.g., United States v. Alviar, 573 F.3d 526, 538 (7th Cir. 2009) (“According to our case law, unless a motion to sever is renewed at the close of the evidence, it generally is waived.”)

Even if not waived, Graham’s objection to the joint trial is meritless. Once the government voluntarily excluded Plato’s statements incriminating Graham in the drug sale, the Sixth Amendment confrontation problem evaporated.

Graham is left with a prejudicial-joinder argument-that antagonistic defenses required severance. Zafiro v. United States, 506 U.S. 534, however, forecloses that argument.

Zafiro expressly held that severance is not required when co-defendants present mutually antagonistic defenses. Id. at 538. Since Zafiro, we have consistently held that blame-shifting among co-defendants, without more, does not mandate severance. See United States v. Hughes, 310 F.3d 557, 564 (7th Cir. 2002) (“Mere ‘finger-pointing’ at another defendant, such as occurred here, is not sufficient to require severance.”); United States v. Mietus, 237 F.3d 866, 873 (7th Cir. 2001) (“Even a showing that two defendants have ‘mutually antagonistic defenses,’ that is, that the jury’s acceptance of one defense precludes any possibility of acquittal for the other defendant, is not sufficient grounds to require a severance unless the defendant also shows prejudice to some specific trial right.”).

When co-defendants blame each other, “less drastic measures, such as limiting instructions, often will suffice to cure any risk of preju-dice.” Zafiro, 506 U.S. at 539. Severance is warranted “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.

Here, Plato’s attorney undoubtedly shifted the blame to Graham, and Graham returned the favor. Nothing in this paradigmatic case of blame-shifting co-defendants suggests a basis for severance. Any possibility for prejudice was cured by the district court’s instruction to the jury to consider each defendant separately.

Beyond the doomed “antagonistic defenses” argument, Graham can point to no aspect of these proceedings that compromised a specific trial right or otherwise prevented the jury from making a reliable judgment about his guilt. Zafiro,506 U.S. at 539. All of the evidence admitted in the joint trial would have been admissible against Graham had he been tried separately.

In sum, this is not one of those “most unusual circumstances” where the “risk of prejudice arising from a joint trial is ‘outweighed by the economies of a single trial in which all facets of the crime can be explored once and for all.’ ” Alviar, 573 F.3d at 538 (citation omitted). The joint trial in this case made good sense. This was a one-and-done drug deal caught on video, and both defendants admitted they were in the vehicle during the sale.

We find no error in the decision to try the defendants jointly.

For the full opinions visit the 7th Circuit Court of Appeals Web Site

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