(dissenting).
I am not unmindful of the exhaustive and careful review which Judge SCHNACKENBERG has made in this case. However, I have a strong feeling that the defendants did not have a fair trial. No good purpose could be served in dissent in discussing my views in detail. The very nature of the case, considering the fact that there were three defendants and a multiplicity of charges, including that of conspiracy, in itself requires, in my view, that the judgment be affirmed only upon a record free from substantial error. Unfortunately, however, we have no such record. Perhaps it can be said that no single error was so prejudicial as to require reversal but, even so, there was an accumulation of errors sufficient to create grave doubt in my mind as to the fairness of the trial.
It appears to me that the defendant Julius Echeles was in all probability seriously prejudiced by statements of his co-defendants offered in evidence. And the denial of the motion for a severance can hardly be excused on the basis that it was not appropriately presented by the defendants for the reason that both the court and the government’s counsel had knowledge of the situation; in fact, the government’s counsel were well aware of the harmful effect of the procedure employed and they, as well as the court, had a duty to protect the defendants in their right to a fair trial. Admittedly the court had discretion in the matter but, to repeat a part of the quotation used by Judge SCHNACKEN-BERG from Dauer v. United States, 10 Cir., 189 F.2d 343, 344, “It is only when the situation is such that the exercise of common sense and sound judicial judgment should lead one to conclude that one defendant cannot have a fair trial, as that term is understood in law, that a severance should be granted.” That, in my opinion, is precisely the situation which existed as to the defendant Julius Echeles.
The opinion points out the acquittal of the defendant Lewis (only charged in the conspiracy count) as an indication of the intelligent understanding by the jury. Perhaps the jury was not confused as to that defendant but it can be asserted with much certainty that it was in a highly confused state as to the two Echeles defendants. This is evidenced by the fact, as Judge SCHNACKEN-BERG holds, that there was no competent proof in support of the charges contained in counts 1, 10 and 12, and no competent proof in support of the charge contained in count 7 as to the defendant Julius Echeles. Even so, the jury found these two defendants guilty on all counts, irrespective of proof or the lack thereof. This can fairly be attributed to the fact that the jury was unable to evaluate and properly apply the evidence as among the numerous charges and as among the different defendants. And it must be remembered that this confusing situation in which the jury was placed was the creation of the government and not that of the defendants or their attorneys.
I would reverse the judgment and remand the case for a new trial.