United States v. Cobb

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
08/24/99
No. 97-6749 THOMAS K. KAHN
________________________ CLERK

D.C. Docket No. CR-97-9-5-CRB

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus

STEPHEN DEXTER COBB;
JERRY DEMETRIUS COBB,

Defendants-Appellants.
________________________

No. 98-6113
________________________
D.C. Docket No. 2:97-9-1CRB

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus
ZARKEY ARMSTEAD,

Defendant-Appellant.
_______________________
 Appeals from the United States District Court
for the Southern District of Alabama
_______________________

(August 24, 1999)

Before CARNES, Circuit Judge, HILL, Senior Circuit Judge, and HOEVELER*,
Senior District Judge.

CARNES, Circuit Judge:

Defendants Jerry Cobb, Stephen Cobb, and Zarkey Armstead appeal their

convictions for bank robbery, conspiracy to commit bank robbery, using a firearm

in relation to a violent crime, and receiving stolen goods. Because the district court

should have granted Stephen Cobb’s motion to sever the trial so his brother and co-

defendant, Jerry Cobb, could provide exculpatory testimony, we reverse Stephen

Cobb’s conviction. As to all other defendants and grounds for appeal, we affirm.

I. BACKGROUND

The charges in this case arose from the robbery of the Peoples Bank and

Trust Company in Plantersville, Alabama on September 22, 1995. These three

appellants were named with two other co-defendants in a four-count indictment in

*Honorable William M. Hoeveler, Senior U.S. District Judge for the Southern District of
Florida, sitting by designation.

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the Southern District of Alabama in January 1997. Jerry Cobb and Zarkey

Armstead were charged in the first three counts of the indictment with conspiracy

to commit bank robbery, in violation of 18 U.S.C. § 371; bank robbery, in violation

of 18 U.S.C. § 2113(a) and (d); and the use of a firearm in relation to a crime of

violence, in violation of 18 U.S.C. § 924(c)(1). Stephen Cobb was charged in

count four of the indictment with the receipt and possession of funds stolen from a

bank, in violation of 18 U.S.C. § 2113(c).

Stephen and Jerry Cobb were tried together. Zarkey Armstead, who

remained a fugitive at the time of their trial, was later tried separately. Another

defendant, Latonga Rivers, pleaded guilty to a lesser charge of misprision of a

felony, with a government recommendation of leniency at sentencing, in exchange

for her agreement to testify at trial as a government witness.1

On the morning of trial, Stephen Cobb renewed an earlier motion to sever

his trial from Jerry Cobb’s trial, advancing as a new reason for severance that he

intended to call Jerry Cobb to offer exculpatory testimony on his behalf. The

district court deferred ruling on the motion until the evidence had been heard.

1
The fifth defendant, Sharone Goodwill, initially entered a guilty plea to count two of the
indictment, but following a psychiatric evaluation was allowed to withdraw his plea, and the
remaining charges against him were dismissed. Latonga Rivers testified that she did not know
Goodwill, and that he had nothing to do with the robbery.

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Following the close of the government’s case, the motion was renewed and the

court denied it.

At trial, Latonga Rivers provided most of the evidence for the government.

She testified that she had driven the getaway car for Zarkey Armstead and Jerry

Cobb, and she gave details about the robbery of the bank. She said Jerry Cobb had

brandished a gun while robbing the bank, and that it was discharged in the course

of the robbery. In addition, she stated that after the robbery, the trio made their

way to Stephen Cobb’s home, where Jerry Cobb and Armstead split the robbery

proceeds with Stephen Cobb because he allowed them to use his place as a hideout.

About $8,500 to $9,000 was stolen in the robbery.

The jury returned guilty verdicts against both Jerry and Stephen Cobb. Jerry

Cobb was sentenced to 175 months imprisonment, five years supervised release,

and restitution in the amount of $9,480.43. Stephen Cobb was sentenced to six

months imprisonment, three years supervised release, and restitution in the same

amount. At his subsequent trial, Zarkey Armstead was convicted and sentenced to

117 months imprisonment, three years supervised release, and restitution in the

same amount. All three defendants were held jointly and severally liable for the

restitution. The defendants appealed. Armstead’s appeal has been consolidated

with the Cobbs’ appeal.

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 II. STANDARD OF REVIEW

We review the district court’s denial of the motion for severance for abuse of

discretion. See, e.g., United States v. Talley, 108 F.3d 277, 279 (11th Cir. 1997).

III. ANALYSIS

Only one of the issues raised in this appeal merits extended discussion, and

it is Stephen Cobb’s contention the district court abused its discretion in denying

his motion to sever so that his brother, Jerry Cobb, could provide exculpatory

testimony on his behalf.2

2
In addition to the issues discussed below, the Cobbs claim prosecutorial misconduct,
and both Jerry Cobb and Zarkey Armstead challenge the sufficiency of the evidence that
convicted them. Stephen Cobb also argues that the Government’s plea agreement with Latonga
Rivers violates 18 U.S.C. § 201(c)(2). These claims are meritless and do not require any
discussion. See Fed. R. App. P. 36-1.

There is also a Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), issue raised by
both Cobbs that merits brief discussion. Among the Batson issues they raise is one that involves
the use of a peremptory challenge against a mother of three who had never been married and was
on welfare. Those facts, the Assistant United States Attorney thought, “reflected on her
morality” and led him to strike her from the jury. The Cobbs’ contention that the explanation
given is not a valid basis for striking a juror miscomprehends the test.

Under Batson, the reason for a peremptory strike that is challenged on race grounds does
not have to be “valid” in any sense other than being race-neutral, nor does it have to relate to the
case being tried. See, e.g., Purkett v. Elem, 514 U.S. 765, 769, 115 S. Ct. 1769, 1771 (1995)
(upholding a strike of a juror because he had “long, unkempt hair, a mustache, and a beard,” a
reason unrelated to the particular facts of the case); United States v.Steele, 178 F.3d 1230, —,
1999 WL 425906 at *4 (11th Cir. June 25, 1999) (“[A] legitimate reason is not a reason that
makes sense, but a reason that does not deny equal protection”) (quotation and citation omitted).
The reason stated for the strike in this case is materially identical to reasons that have been held
to be race-neutral. See, e.g., United States v. Munoz, 15 F.3d 395, 399 (5th Cir. 1994)
(upholding a government strike of a juror because “she had children on welfare and apparently
was unemployed”); United States v. Hughes, 970 F.2d 227, 231 (7th Cir. 1992) (upholding a
government strike of a juror because she was young, unemployed, from an unstable background

5
 Well before trial, Stephen Cobb filed several motions to sever his trial from

that of his co-defendant, Jerry Cobb, on grounds that are irrelevant to our

discussion here; those motions were denied. On the morning the trial began,

however, Stephen Cobb renewed his motion to sever. This time, he stated that

counsel for Jerry Cobb had indicated he would be willing to provide exculpatory

testimony for his brother, Stephen, with respect to the sole charge against him –

namely, receiving stolen funds. Specifically, Jerry Cobb would testify that he had

given none of the money from the bank robbery to his brother. That would

contradict the only evidence the government had against Stephen Cobb, which was

Latonga Rivers’ expected testimony that she saw Jerry Cobb give Stephen Cobb

an equal share of the proceeds from the robbery.

After voicing his doubt that Jerry Cobb would waive his Fifth Amendment

right against self-incrimination if called upon to testify in the subsequent trial of

his brother, the district court told the parties:

Here’s what I’m going to do. I’m going to proceed to trial with both
defendants and weigh during the course of the trial the potential
prejudice to Stephen Cobb from the testimony of Latonga Rivers.
Because I suspect she will be effectively impeached on cross-
examination and/or other evidence, but I don’t know. . . . [T]he proper

and an unmarried mother of three). We agree with the district court that the reason given was
race neutral. We also reject the Cobbs’ contentions that the procedure the district court used to
consider the Batson challenges was flawed, and that its findings concerning the true reasons for
the peremptory strikes were clearly erroneous.

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 course of action is for the Court to evaluate the facts elicited, the
prejudicial tendency, the entire course of the trial, in order to make a
proper determination as to (a), the prejudice of the testimony of
Latonga Rivers and (b), the proffered value of a codefendant’s
testimony in view of that. . . . I have enough discretion, I think, under
the circumstances to weigh the evidence very carefully as the evidence
unfolds and then make that determination at some further point during
the trial. So I’m going to deny the motion at this point and we will
proceed.

It was within the district court’s discretion to proceed in that manner.

During the trial, as predicted, the sole evidence against Stephen Cobb was

the testimony of Latonga Rivers, who stated that she saw Jerry Cobb give Stephen

an equal share of the loot from the robbery, in exchange for Stephen letting the

other co-defendants use the trailer where he lived as a hideout after the robbery. At

the close of the government’s case, Stephen Cobb renewed his motion to sever,

arguing that he would otherwise be unable to call his brother to present exculpatory

testimony on Stephen’s behalf. The district court denied the motion, on the ground

that Jerry Cobb had conditioned his willingness to testify on his case being tried

before his brother’s.

A district court may sever the trial of co-defendants whenever it appears that

a defendant would be prejudiced by his joint trial with a co-defendant. See Fed. R.

7
Crim. P. 14.3 “Nevertheless, because of the well-settled principle that it is

preferred that persons who are charged together should also be tried together,

particularly in conspiracy cases, the denial of a motion for severance will be

reversed only for abuse of discretion.” United States v. Smith, 918 F.2d 1551,

1559 (11th Cir. 1990) (quotation and citation omitted); see also Zafiro v. United

States, 506 U.S. 534, 537, 113 S. Ct. 933, 937 (1993) (noting “a preference in the

federal system for joint trials of defendants who are indicted together”). To justify

severance, the defendant must “demonstrate that a joint trial will result in specific

and compelling prejudice to the conduct of his defense.” United States v. Schlei,

122 F.3d 944, 984 (11th Cir. 1997) (quotation and citation omitted).

Where a defendant argues for severance on the ground that it will permit the

exculpatory testimony of a co-defendant, he “must show: (1) a bona fide need for

the testimony; (2) the substance of the desired testimony; (3) the exculpatory

nature and effect of the desired testimony; and (4) that the codefendant would

indeed have testified at a separate trial.” United States v. Machado, 804 F.2d 1537,

3
The Rule states, in relevant part:

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.

Fed. R. Crim. P. 14.

8
1544 (11th Cir. 1986); see also United States v. Harris, 908 F.2d 728, 739 (11th

Cir. 1990); United States v. Martinez, 486 F.2d 15, 22 (5th Cir. 1973); Byrd v.

Wainwright, 428 F.2d 1017, 1019-20 (5th Cir. 1970). Even if the defendant makes

such a showing, the court must still “(1) examine the significance of the testimony

in relation to the defendant’s theory of the case; (2) assess the extent of prejudice

caused by the absence of the testimony; (3) consider judicial administration and

economy; and (4) give weight to the timeliness of the motion.” Machado, 804 F.2d

at 1544; accord United States v. Harris, 908 F.2d 728, 739 (11th Cir. 1990)

(quoting United States v. DeSimone, 660 F.2d 532, 540 (5th Cir. 1981)).

Determinations as to whether severance is required are committed to the

sound discretion of the district court, and we do not lightly decide that a district

court has abused its discretion in denying a motion for severance. This is one of

those rare cases, however, where the appellant presents a compelling argument that

he suffered “prejudice resulting in the denial of a fair trial flow[ing] from the

failure to grant the motion” for severance. Martinez, 486 F.2d at 22 (quotation and

citation omitted).

Stephen Cobb’s need for his brother’s exculpatory testimony was clear. The

sole evidence against him on the charge of receiving stolen funds was the

testimony of Latonga Rivers, who said she had seen Jerry Cobb handing Stephen

9
an equal share of the money from the bank robbery. Furthermore, the Assistant

United States Attorney accurately disclosed to the court before the trial began that

the only evidence against Stephen Cobb would be Latonga Rivers’ testimony. Her

testimony against Stephen Cobb would have been flatly contradicted by Jerry

Cobb’s testimony on Stephen’s behalf if a severance had been granted, and the

district court was informed of that before the trial began. As described to the court

by Jerry Cobb’s counsel in the course of discussion about the severance motion,

Jerry’s testimony would be that “he did not give any money to his brother.”

Because the only other person who was allegedly present when Rivers saw Jerry

Cobb present his brother with his share of the spoils from the robbery, Zarkey

Armstead, was a fugitive at the time of trial, Jerry Cobb “was the only individual

other than [Stephen Cobb] himself in a position directly to rebut the government’s .

. . evidence” against Stephen Cobb. Martinez, 486 F.2d at 23; see also United

States v. Neal, 27 F.3d 1035, 1047 (5th Cir. 1994) (testimony from leader of

conspiracy that co-defendants did not participate in or further conspiracy was

“essential to [co-defendants’] claims of innocence”).

There was thus a pressing need for this directly exculpatory testimony,

which would have contradicted the only evidence against Stephen Cobb. Without

it, Stephen Cobb suffered significant prejudice to his ability to present adequate

10
evidence in his own defense. Thus, the first three factors required to make a

threshold showing that severance is required under the Machado test – that the

defendant demonstrate a bona fide need for exculpatory testimony, and set out the

substance and exculpatory nature of that testimony – were met.

The district court did not appear to question the existence of those first three

Machado factors, instead basing its denial of the severance motion on the fourth

factor, which requires that “the codefendant would indeed have testified at a

separate trial.” Machado, 804 F.2d at 1544. The district court noted that this

requirement is not met where the co-defendant conditions his testimony on the

order of the co-defendants’ severed trials, and there is authority for that

proposition. See, e.g., United States v. Broussard, 80 F.3d 1025, 1038 (5th Cir.

1996) (co-defendant’s offer to provide exculpatory testimony, contingent upon his

being tried first, does not establish that he would in fact testify if a severance were

granted); Mack v. Peters, 80 F.3d 230, 236-37 (7th Cir. 1996) (offer to testify that

is conditioned on order of trials does not require severance); see also United States

v. Funt, 896 F.2d 1288, 1298 (11th Cir. 1990) (“An offer to testify, conditioned

upon being effectively removed from jeopardy or upon future evidentiary rulings,

does not satisfy the fourth Machado threshold prong when the district court

concludes that the defendant will not in fact testify.”).

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 The district court clearly erred, however, in treating Jerry Cobb’s offer to

testify on his brother’s behalf as conditioned on his case being tried first. In

response to the district court’s inquiry concerning what order of trial would be

appropriate, Stephen Cobb’s counsel did recommend that Jerry Cobb be tried first.

But that recommendation was not made by Jerry Cobb or his counsel, it was made

by Stephen Cobb’s counsel. Moreover, it clearly was a suggestion and not a

condition. When pressed on the matter, Jerry Cobb’s counsel told the court, “All I

can tell the Court is that my client said that he would take the stand in a separate

trial.”

The district court did not ask directly whether Jerry Cobb would be willing

to testify on Stephen Cobb’s behalf if Stephen’s trial came first. The court did ask,

however, whether Jerry Cobb would be willing to testify on his brother’s behalf

even if his own conviction was still awaiting appeal, and he thus faced the

possibility of being retried after he had testified for his brother. Jerry Cobb’s

counsel assured the court that his client understood he might waive his Fifth

Amendment right against self-incrimination in these circumstances, and he was

still willing to testify. Thus, there was no evidence before the district court that

Jerry Cobb’s offer to provide exculpatory testimony for his brother was contingent

12
upon the order of the trials, and every indication from his counsel showed that it

was not contingent.5

Because the district court erroneously denied severance on the ground that

the motion did not meet one of the threshold requirements under Machado, it did

not reach the other four factors a court must consider in a severance motion based

on a co-defendant’s exculpatory testimony: the significance of the testimony in

relation to the defendant’s theory of the case; the extent of prejudice caused by the

absence of the testimony; the interests of judicial administration and economy; and

the timeliness of the motion. See Machado, 804 F.2d at 1544. We think those

factors also weighed in favor of severance in this case, or at least did not weigh

against it. We have already discussed the significance of Jerry Cobb’s exculpatory

testimony to Stephen Cobb’s case, and the prejudice caused by its absence. As for

judicial administration and economy, the Cobbs’ joint trial took only one day to

complete, and a separate trial for Stephen Cobb would be unlikely to take longer

than one more day. Trials do not get much shorter than that, so the cost to the

system of a severance in this case is minimal. Finally, as we will discuss in greater

detail later, although the district court might have done otherwise, it treated the

5
By comparison, in United States v. Reavis, 48 F.3d 763 (4th Cir. 1995), which the
district court cited in support of its denial of the severance motion, the co-defendant explicitly
conditioned his willingness to testify on his being tried first. See Reavis, 48 F.3d at 767.

13
severance motion as timely. Given all these considerations, and especially in light

of its reliance on the erroneous notion that Jerry Cobb’s offer to testify was

conditional, it would be difficult not to conclude that the district court’s denial of

Stephen Cobb’s severance motion was an abuse of discretion.

The government offers three reasons why we should not reach that

conclusion. First, the government contends that the substance of Jerry Cobb’s

proffered testimony was too vague to support the conclusion that severance was

necessary. In affirming denials of severance motions, we have held that a

defendant who moves for severance on the basis of possible exculpatory testimony

from a co-defendant must describe in some specificity “the substance of the [co-

defendant’s] testimony, including the specific exonerative facts.” United States v.

Beale, 921 F.2d 1412, 1429 (11th Cir. 1991). See also United States v. Smith, 918

F.2d 1551, 1560-61 (11th Cir. 1990); Harris, 908 F.2d at 739. In this case,

however, the exonerative significance of Jerry Cobb’s proffered testimony was

plain. The government’s only witness against Stephen Cobb said Jerry Cobb had

handed his brother stolen funds; Jerry Cobb’s counsel said his client was prepared

to testify he had not done so. That is a plain enough description of the substance of

Jerry Cobb’s proffered testimony.

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 Second, the government contends that because Jerry Cobb had two prior

convictions, it is doubtful Stephen Cobb would have called his brother to testify if

their trials had been severed. Our concern with whether a co-defendant will testify

for the defendant in a separate trial is limited to determining whether the co-

defendant is likely to testify, not whether he is certain to do so. See Taylor v.

Singletary, 122 F.3d 1390, 1393 (11th Cir. 1997) (quoting Byrd, 428 F.2d at 1022).

In the circumstances of this case, we think Stephen Cobb succeeded in showing he

likely would have called his brother to testify on his behalf, and his brother likely

would have testified when called. Stephen Cobb’s attorney represented to the

court that Jerry Cobb would be called as a witness if severance were granted, and

Jerry Cobb’s attorney represented to the court he would testify if called. As the

government conceded to the district court in the course of arguing the severance

motion, the only evidence it had to corroborate its claim that Stephen Cobb had

received some of the proceeds from the bank robbery was Latonga Rivers’

testimony. Similarly, because Stephen Cobb did not testify and Zarkey Armstead

was still at large, the only evidence he had to directly refute Rivers’ testimony was

Jerry Cobb’s testimony.

To be sure, as the government pointed out at oral argument, Rivers’

testimony was itself weak: on cross-examination, the defense elicited from her the

15
information that she had experienced auditory and visual hallucinations in the past,

that she had once attempted suicide, and that she had taken psychotropic

medication. But the district court found Rivers’ testimony to be sufficiently

credible to go to the jury for consideration, and the jury found it credible enough to

convict Stephen Cobb. In keeping with the district court’s invitation to bring up

the severance motion again at the close of the government’s case, Stephen Cobb

did so, indicating that he still wanted a severance so he could call Jerry Cobb to

testify. Whatever weaknesses Jerry Cobb might have as a witness, we think

Stephen Cobb has shown he would have offered his brother’s exculpatory

testimony had a severance been granted, and that his brother would have testified.

Third, the government argues the severance motion was untimely. Stephen

Cobb’s initial severance motion was filed well before trial, but it was not until the

morning of trial that he amended it to specify his intention to seek the exculpatory

testimony of his brother. If the district court had based its ruling upon

untimeliness, we might well hold that denial of the motion was not an abuse of

discretion. The district court did not do that, however. Instead, the court decided

to consider the motion, and invited Cobb to renew it upon the close of the

government’s case. When he did so, the court decided the motion on its merits

without even alluding to whether it had been timely filed.

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 In light of the importance of Jerry Cobb’s exculpatory testimony, which

directly refuted the only testimony against Stephen Cobb on the sole charge against

him; the clear indication that Jerry Cobb would be called by and would testify for

Stephen Cobb if a severance were granted; and the low cost in terms of the

resources needed to conduct two one-day trials instead of one, the district court’s

denial of the severance motion was an abuse of discretion. It caused Stephen Cobb

“prejudice resulting in the denial of a fair trial.” Martinez, 486 F.2d at 22

(quotation and citation omitted). That prejudice requires reversal of his

conviction.6

IV. CONCLUSION

For the foregoing reasons, we REVERSE the conviction of Stephen Cobb

and REMAND for further proceedings consistent with this opinion. We AFFIRM

the convictions of Jerry Cobb and Zarkey Armstead.

6
Because we reverse Stephen Cobb’s conviction for failure to sever his trial, we need not
consider his argument that the district court erred in holding him jointly and severally liable to
make restitution for the full amount stolen in the bank robbery.

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