United States District Court

For the Northern District of California

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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

 v.

DERON CHEEVES and

REGINALD ELMORE,

Defendants.

 /

No. CR 09-1030 CRB

ORDER DENYING DEFENDANTS’

MOTION TO SEVER TRIAL

Defendants Cheeves and Elmore have moved for a severance of their trials under

Federal Rule of Criminal Procedure 14. They argue that their planned trial defenses are

mutually exclusive, and that permitting them to be tried together carries a high risk of

extreme prejudice. This Court agrees that it seems possible that the jury will be presented

with mutually exclusive defenses. However, the Court does not believe that extreme

prejudice will result. This is so for several reasons. First, the evidence in this case will not

put the jury in a position of being forced to convict one defendant if it acquits the other. 

Second, Ninth Circuit authority is clear that, in the majority of cases, the trial judge can avoid

or correct prejudice through the use of jury instructions and other methods. Third,

Defendants fail to identify a discrete trial right that will likely be compromised by a joint

trial. Supreme Court and Ninth Circuit authority hold that mutually exclusive defenses, in 

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and of themselves, are not sufficient to justify severance. The question is whether there is a

likelihood of extreme prejudice and whether a specific right will be compromised in a joint

trial. No such right has been identified here. 

Because of the presumption in favor of joint trials, and the fact that the Court is

confident of its ability to avoid unfair prejudice at trial through jury instructions and other

means, defendants’ motion to sever is hereby DENIED.

BACKGROUND

The Government alleges that, on January 8, 2009, both Deron Cheeves and Reginald

Elmore went to a funeral at a church in San Francisco. The funeral was for a member of the

Eddy Rock gang, and the Government believes the defendants had allegiances of some sort

to rival gangs. The Government argues that the defendants attended the funeral “to taunt [the

decedent’s] friends and family.” Opp. at 2.

The Government’s narrative continues with Elmore firing several rounds from a TecDC9 semi-automatic pistol toward the funeral attendees. Id. The shooter then fled, cutting

through the Prince Hall public housing development. Id. A heavy-set individual, alleged by

the Government to be Elmore, can be seen on a video captured by a security camera running

with the gun. Dkt. #18 at 2. At some point later (a point much disputed by both defense

counsel), the Government believes the gun was transferred to Cheeves. A security guard at

the housing project saw a group of men running in the housing project and identified

Cheeves as the individual who then threw the gun over a fence. Id.; Opp. at 2. 

DISCUSSION

Defendant Cheeves informs the Court that his defense “will be that he did not have a

gun on that day, that it was Elmore who discharged the gun, ran with the gun, and then threw

the weapon over the fence.” Cheeves Mot. at 2. While Elmore’s papers do not specifically

outline his defense, his counsel at the hearing represented that he too will blame his codefendant, focusing on the eye-witness evidence that Cheeves, not Elmore, disposed of the

gun. To the extent that the defendants intend to defend themselves by arguing that their codefendant was exclusively responsible for the offense, they do indeed articulate mutually

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 Despite use of the word “mandate,” subsequent Ninth Circuit and Supreme Court case law

clarify that severance is not per se required with mutually antagonistic defenses. This will be explained

more thoroughly below.

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antagonistic defenses. However, they fail to establish a likelihood that either co-defendant

will suffer extreme prejudice because of these antagonistic defenses.

To begin with, it is important to note an issue of semantics. Defendants claim that

they offer “mutually exclusive” defenses, as opposed to merely “mutually antagonistic”

defenses. While precedent relating to this issue is not a model of clarity, it does appear that

courts have recognized a certain taxonomy of conflicting defenses. See generally Scott

Hamilton Dewey, Irreconcilable Differences: The Ninth Circuit’s Conflicting Case Law

Regarding Mutually Exclusive Defenses of Criminal Codefendants, 8 BOALT J. CRIM. LAW 2

(2004). Some Ninth Circuit cases have explained that defenses that are merely inconsistent

do not pose the risk of extreme prejudice to justify severance. See, e.g., United States v.

Sherlock , 962 F.2d 1349 (9th Cir. 1989) (“Antagonism between defenses is insufficient; the

defenses must be antagonistic to the point of being irreconcilable and mutually exclusive.”);

United States v. Ramirez, 710 F.2d 535 (9th Cir. 1983). As Ramirez explains, “[o]nly where

the acceptance of one party’s defense will preclude the acquittal of the other party does the

existence of antagonistic defenses mandate severance.”1

 Id. at 546. This point is reiterated

in United States v. Tootick, 952 F.2d 1078 (9th Cir. 1991), a case heavily relied on by both

defendants. Tootick outlines the issue in different words, writing that “[m]utually exclusive

defenses are said to exist when acquittal of one codefendant would necessarily call for the

conviction of the other.” Id. at 1081. 

At the hearing on this issue, the parties disagreed as to whether the defenses in this

case are, in fact, mutually exclusive. Elmore and Cheeves argue that they each plan to blame

the other, and if the jury believe one co-defendant’s story and acquits him, that story will

correspondingly require that the jury convict the other defendant. The Government,

however, views the issue differently. It argues that the question of exclusivity is not simply a

function of the arguments made by counsel; it is instead a combination of the facts in

evidence and the arguments made based upon those facts. In this case, then, even if the

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arguments will be mutually exclusive, the government notes that the evidence will permit a

jury to acquit both defendants even if defense arguments do not.

The Government has a point. Both Elmore and Cheeves rely heavily on Tootick, and

that case is instructive on this precise point. Tootick concerned a stabbing in an isolated

area. Three individuals – Moses Tootick, Charles Frank, and Aaron Hart – drove to a

secluded hill, where Hart was stabbed. 952 F.2d at 1081. Hart testified that Frank stabbed

him. Id. at 1080. Frank testified that Tootick stabbed Hart. Id. at 1081. Tootick did not

testify, but had given police a statement concerning his state of intoxication. “That statement

was used to fashion a mutually exclusive defense.” Id. The Ninth Circuit explained that

“[b]ecause only Frank and Tootick were present when Hart was attacked, and because there

was no suggestion that Hart injured himself, the jury could not acquit Tootick without

disbelieving Frank. Each defense theory contradicted the other in such a way that the

acquittlal of one necessitates the conviction of the other.” Id.

The facts of this case are materially different. While each defense counsel plans to

blame the other defendant, the facts of the case do no necessitate that the jury convict one or

the other defendant. In Tootick, there was no evidence to support a conclusion that neither

defendant committed the crime. There simply was nobody else there. In this case, however,

the evidence will reveal that a number of other individuals were present. Indeed, the very

presence of one of the defendants will likely be an issue. Elmore was not arrested until far

later, and he will likely argue that he was not even there. In Tootick, however, there was no

issue as to presence. Moreover, in this case if the jury disbelieves the evidence putting

Elmore at the scene and acquits him, this does not make it any more likely that Cheeves

possessed the gun. Because of the temporal aspect of the Government’s case – it believes

Elmore shot the gun and then gave it to Cheeves, who threw it over the fence – the

Government relies on different evidence as to the two defendants. 

This temporal aspect also undermines one typical concern in this type of case. As

defendants note, Courts have noted that mutually exclusive defenses lead to each defendant

facing two prosecutors - both the U.S. Attorney and the co-defendant seeking to blame his

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counterpart. This case, however, is importantly different from the prototypical case. In

Tootick, for example, the Government accused both individuals of stabbing the victim. Each

defendant then accused his co-defendant of doing it. Therefore, each defendant had two

lawyers in court accusing him of the same crime. On the facts of that case, one of the

individuals must have done it, and 2/3 of the lawyers in court accused each defendant. That

is not so here. The Government accuses Elmore of shooting the gun, and accuses Cheeves of

disposing of it. The crime as to both defendants concerns possession of the same gun, but the

possession is alleged to have happened at different times. Whether or not Elmore shot the

gun does not necessarily make it more or less likely that Cheeves disposed of the gun. If the

jury concludes that Elmore was not there, this says nothing about whether Cheeves was. 

Similarly, whether or not Cheeves disposed of the gun does not make it more or less likely

that Elmore shot the gun. If the testimony that places Cheeves at the scene is judged by the

jury to be incredible, this makes it no more likely that Elmore had the gun earlier in the

transaction. 

The moment Cheeves blames Elmore for disposing of the gun, the Government will

disagree. After all, it does not believe Elmore disposed of the gun. And the moment Elmore

blames Cheeves for shooting the gun, the Government will disagree. It alleges that Elmore

did so. Therefore, when viewed through the prism of the Government’s factual allegations as

set forth in their papers, the Defendants will not truly be subjected to two prosecutors in the

same was as in Tootick. As noted above, regardless of the arguments made by defense

counsel, the facts in this case will permit a jury to acquit one defendant without convicting

the other. It is not a zero sum game. If the jury believes Elmore was not at the Church, and

does not find the testimony regarding Cheeves’s disposal of the gun to be credible, it may

conclude that neither defendant is guilty beyond a reasonable doubt. Such a conclusion was

essentially foreclosed in Tootick. 

All this is to say, while Cheeves and Elmore may plan to offer arguments that are

mutually exclusive, the facts of the case give the jury a flexibility that was not available in

Tootick. Therefore, while the categorical nature of phrase “mutually exclusive” does not on

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its face permit the conclusion that any set of defenses could be “more mutually exclusive”

than another, it is nonetheless this court’s conclusion that jury in this case will not be so

constrained as it was in Tootick, and that the risk of prejudice is therefore correspondingly

lower.

Given this conclusion, Tootick counsels that severance is not necessary. Indeed, even

in Tootick, the Ninth Circuit suggested that severance would not have been necessary had the

trial court properly instructed the jury. 952 F.2d at 1083 (reversing the convictions because

of “the number and types of prejudicial incidents that were not corrected by instructions from

the court”). This Court is capable of limiting any possible prejudicial effect of this joined

trial through the use of appropriate and timely jury instructions.

This conclusion is further buttressed by Zafiro v. United States, 506 U.S. 538 (1993). 

Zafiro rejected arguments in favor of a per se rule of severance where defendants make

mutually exclusive arguments. Moreover, it held that even where prejudice occurs, “Rule 14

does not requires severance . . . ; rather, it leaves the tailoring of the relief to be granted, if

any, to the district court’s sound discretion.” Id. at 538-39. Zafiro also explained that

properly joined defendants should be given severed trials “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. at 539. This Court

explained above why, given the facts of this case, the jury will still be capable of making a

reliable judgment about guilt or innocence. It also bears noting that neither defendant

identifies a particular trial right that will likely be compromised. Zafiro provides a list of

factors as indicators of potential prejudice, and none is present in this case. For example,

defense counsel do not identify evidence that will be admissible as to one defendant but

inadmissible as to another, do not identify exculpatory evidence that will be unavailable in a

joint trial but available in a severed one, and do not face a case where defendants may have

differing levels of culpability in the same crime. While Zafiro’s list is not exclusive,

defendants do not identify any other specific trial right that is likely to be compromised. 

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Counsel for Elmore does argue that introduction of gang evidence related to Cheeves

will impermissibly prejudice Elmore. However, this argument fails to articulate precisely

how this will compromise Elmore’s rights or confuse the jury. Elmore cites to Kennedy v.

Lockyer, 379 F.3d 1041, 1055 (9th Cir. 2004), for the proposition that “evidence relating to

gang involvement will almost always be prejudicial and will constitute reversible error.” 

First, this suggests that such evidence is impermissible, and therefore will not be admitted. 

Evidence that is not admitted will not prejudice either defendant. Second, even if the

evidence is admitted, and even assuming that the admission is prejudicial, this may establish

prejudice as to Cheeves, but not as to Elmore. Lockyer concerns the prejudice that may

impact a defendant when evidence relating to that same defendant’s gang affiliation is

admitted. It says nothing about how a defendant is prejudiced when a co-defendant’s gang

membership is argued to the jury. And as noted above, if indeed the evidence is

inadmissible, it will not be admitted and will not cause prejudice.

CONCLUSION

For the reasons explained above, Defendants’ motion to sever is DENIED.

IT IS SO ORDERED.

Dated: March 29, 2010 

CHARLES R. BREYER

UNITED STATES DISTRICT JUDGE

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