One of the realities of modern criminal defense in federal criminal cases is that in most cases, there will be multiple defendants in a single trial. One of the favorite tactics of the government is to join multiple defendants together in a single trial and then offer a break under U.S.S.G 5K1.1 for whichever defendants want to cooperate. The usual understanding is that whoever cooperates first receives the best deal, with some attorneys believing it is their job to have their clients meet with the prosecutors even before they understand the case.

In one of my first trials as a defense attorney in federal court more than twenty years ago, I represented an individual charged with conspiracy to distribute “crack” cocaine—an extremely serious offense in the days when there was a greater disparity between crack cocaine and powder cocaine and sentencing guidelines were binding. There were three co-defendants, and my client informed me that they were closer than brothers and there was no way any of them would testify against the other two.

The government’s case was surprisingly weak, and I felt we had an excellent shot at an acquittal. Then, about a week before trial, one of the co-defendants decided to plead guilty and testify against the other two. Then, the evening before the trial, I received an email telling me that the other co-defendant would be cooperating as well. We went to trial alone with the two men who had been like my client’s brothers testifying against him. The only other witnesses collapsed on cross examination. Nevertheless, my client was convicted. The powerful incentives the government could offer were simply too much for the co-defendants to overcome.

They say you learn more from the trials you lose than the ones you win, a definite truism. I learned that day that no matter what: no matter how close the defendants are, no matter what their attorneys say, and no matter how strong a joint defense agreement is in place, defense counsel should be prepared for the co-defendant(s) and their counsel to sell-out to the government.

But we have to work within the system as it is and not the system as it should be. There are steps defense counsel can take when he or she finds that his or her client is part of a multi-defendant indictment.

Motion to Sever.

There are two little known (at least to some federal judges) Federal Rules of Criminal Procedure that are relevant to joinder and severance. Rule of Criminal Procedure 8 provides for severance of improperly joined defendants and offenses and Rule of Criminal Procedure 14 provides for potential severance of prejudicially joined defendants and offenses.

There are substantial advantages to representing a single defendant before a jury as opposed to being a member of a group being tried. To begin with, the trial of multiple people allows the government to introduce evidence of criminal conduct against co-defendants that would not otherwise be admissible. There is also the issue of counsel for the co-defendants. Some are crazy. Some are stupid. Some have no discernible strategy. And some will actively work as a second prosecutor. If you can sever a client from trial with other defendants, you should always do so.

According to the rules, joinder is only permissible when the defendants are charged with participating “in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. . . [M]ultiple defendants may be joined only if a sufficient nexus exists between the defendants and the single or multiple acts or transactions charged as offenses.” [1] “Where the only nexus between two defendants joined for trial is their participation in similar offenses, on different dates, with [a] common third defendant, the ‘same transaction’ or ‘series of transactions’ test of Rule 8(b) is not satisfied and joinder is impermissible.” [2] “[D]ifferent, unconnected offenses not arising out of the same series of transactions may not be joined in an indictment in which two or more defendants are charged”. [3] 

“Charges against multiple defendants may not be joined merely because they are similar in character, and even dissimilar charges may be joined against multiple defendants if they arise out of the same series of transactions constituting an offense. [4]  If the government is alleging a conspiracy, then it makes sense that the same conduct is involved; however, the government frequently joins charges where there is no connection between defendants and where the crimes charged are not the same charges. In recent indictments concerning the events at the Capitol on January 6th, 2021, multiple defendants who are complete strangers to each other have been routinely joined in the same indictment. Although they appear to be improperly joined, courts have not granted a single motion to sever.

[1] Fed. R. Crim. Proc. R. 8(b); United States v. Davidson, 936 F.2d 856, 861 (6th Cir. 1991) (citing United States v. Johnson, 763 F.2d 773, 775 (6th Cir. 1985)). 

[2] United States v. Whitehead, 539 F.2d 1023, 1026 (4th Cir. 1976); see also Ingram v. United States, 272 F.2d 567, 570 (4th Cir. 1959).

[3] Ibid.

[4] United States v. Satterfield, 548 F.2d 1341, 1344 (9th Cir. 1977).

Putting the Cooperating Witness on Trial.

Ah—the cooperating witness (CW), the bane of every criminal defense counsel’s existence. At one time, the cooperating witness was the defendant’s best friend, perhaps even after he or she and the defendant were indicted by the U.S. Attorney’s Office. Now, on the eve of

trial, the defense attorney finds out that the now former-best friend will now be testifying against the client. Not only that, BUT the CW will ALSO now testify that there was indeed an agreement and—usually—that the remaining defendant was the leader of the conspiracy.

To the inexperienced, this may feel like a punch in the gut. To the experienced, however, it is to be expected. The first thing defense counsel should do—even before the CW turns on his or her co-defendant(s)—is find out what the CW has said to others. Frequently, the CW will have made statements or other people in his or her community that are inconsistent with the statements contained in the Jenks Act materials provided to defense counsel after the agreement to testify has been solidified. There may even be evidence that would undermine the CW’s credibility. It should not be assumed that the CW is telling the truth.

It should also not be assumed that the CW is completely on board with the cooperation. Often, a CW will feel forced to testify, will do so reluctantly, and may support all or part of a co-defendant’s narrative. I have seen cases where the testimony of a CW was so bad that it actually hurt the government’s cases. As a prosecutor, I sometimes did not put CWs on the stand because I feared what they would say. In one case I tried as a defense counsel, a CW actually changed her story during cross examination and then said that the statements she gave to the grand jury were false. The judge then sustained a defense objection to the government’s attempt to introduce her grand jury testimony.

Finally, most CWs will readily acknowledge the consideration they were given by the government in order to secure their cooperation. Remember to calculate the guidelines for the CW, the maximum sentence they faced, and how the plea agreement can reduce that sentence. Ask how many times they met with the prosecutor, what facts the prosecutor emphasized. There will usually be prior statements where the CW denied culpability raising the possibility of a false statements charge. Ask if the prosecutor talked to them about the consequence or their prior false statement and whether there would be any consequences.

Explore the witness’s family background. Are they a single mom, and would they lose custody of their son or daughter if they went to prison. Did the prosecutor of the agent ever mention the son or daughter during their conversations? Do they have a boyfriend/ girlfriend/ brother/ sister/ parent, etc. with criminal exposure in the case? Were there any implied threats?

The areas of inquiry are limited only by the defense counsel’s imagination.

Arguing to the Jury.

Every case is different, and that fact cannot be emphasized enough. However, there are some guiding principles that should be considered.

First, the one person the jury knows for sure is guilty of the offense is the CW. After all, the CW has admitted his or her guilt. They should acknowledge that they knew what they did was wrong, or, if they don’t, they are minimizing their conduct. It is often fruitful to point out that the CW could have committed the crime without the assistance of the defendant. The CW is the one who knows all about the crime. The CW has confessed.

The CW is also an admitted liar, someone who lied over and over again (in many cases), and only changed their story after weeks or months of interaction. Cover the motive to lie—the jeopardy they were in, not only from the charges themselves but also from the loss of a child. “Wouldn’t a mother say or do anything she could to keep her daughter?”

Finally, it is frequently possible to point out that the government, unlike defense counsel, can “buy” witness testimony. How do they do that? By trading freedom for testimony. If the testimony is satisfactory, the amount of time a person spends in prison is reduced. The happier the government is, the more the sentence is reduced. If the witness has a prior record, or has engaged in reprehensible conduct, explore the record and the conduct. This is not impeachment by prior conviction, but rather, the consideration the government is paying for testimony. At times, the government will overreach and offend the jury’s belief in justice.

What About the Co-defendant Who Proceeds to Trial in the Joint Trial?

Sometimes the only thing worse than a co-defendant who switches sides is a co-defendant who proceeds to trial with your client. Unlike the government, which goes to great lengths to maintain consistent litigation positions, multiple defense counsel are free to go their own ways, develop their own strategies, and, if they so choose, screw all of the other defendants.

One commonly employed strategy is to agree with the government that defendants A, B, and C, are guilty as sin, but client D is as pure as the new fallen snow. This strategy rarely works—it assists the government in obtaining a conviction of all defendants.

If possible, it is usually best for defense counsel to agree on a “lead” defense counsel and to coordinate the presentation of evidence amongst the various defense counsel. There are times when it makes sense for several defense counsel to cross examine the same witness, but if they do so, it is best if the cross examinations are coordinated. In other words, several defense counsel should not ask the same questions—to do so risks unravelling a good cross examination. Rather, each defense counsel should focus on one or two areas the other defense counsel has not or is not going to address.

In addition, some witnesses are likely to provide testimony about only one defendant. Only counsel for the defendant who has been implicated should examine the witness. The other defendants have no interest in that case and therefore should treat the witness as irrelevant. However, I have seen a defense counsel cross examine witness to make sure the witness did not see their client and, in the process, emphasize the testimony against a co-defendant. It sometimes backfires.

In one of my first joint defense cases, one of the defense counsel represented the girlfriend of one of the primary defendants (my client). Witness after witness testified without identifying the girlfriend. After each witness testified, the girlfriend’s attorney would stand up, strut over to the podium and ask something like, “I notice you did not see my client there”.

Eventually, one witness said, “Oh, I forgot, she was actually the one who handed me that crack”. That turned out to be the only testimony against her; however, it was sufficient to convict her.

Joinder in an indictment and joint trials are always going to be problematic. It is always better if a defendant can be severed, but that is not always (or usually) going to happen. When forced into a joint trial situation, investigate, prepare, and coordinate. Assume that one or more joint-defendants will switch sides and be prepared for that eventuality. It is possible to win a joint trial—do not lose hope. Just try it!

Dennis Boyle
Founder / Partner

Mr. Dennis Boyle is an accomplished white-collar criminal defense and complex civil litigation attorney who practices throughout the United States and internationally.

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