United States of America v. Cornelius Green

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 23-2476
______
UNITED STATES OF AMERICA
v.
CORNELIUS GREEN,
Appellant
______
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 3-20-cr-00310-002)
District Judge: Honorable Robert D. Mariani
______
Argued on June 4, 2024
Before: CHAGARES, Chief Judge, CHUNG and FISHER,
Circuit Judges.
(Filed: August 27, 2024)
Patrick J. Bannon
Sean A. Camoni [ARGUED]
Gerard M. Karam, United States Attorney
Office of United States Attorney

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235 N Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
Carlo D. Marchioli
Office of United States Attorney
Middle District of Pennsylvania
Sylvia H. Rambo United States Courthouse
1501 N 6th Street, 2nd Floor
P.O. Box 202
Harrisburg, PA 17102
Counsel for Appellee
Jason F. Ullman [ARGUED]
Office of Federal Public Defender
100 Chestnut Street
Suite 306
Harrisburg, PA 17101
Counsel for Appellant
______
OPINION OF THE COURT
______
FISHER, Circuit Judge.
Few guarantees are more central to our judicial system
than that of a fair trial by jury. It is “the most fundamental of
all freedoms”—“the great bulwark of [our] civil and political
liberties.” Estes v. Texas, 381 U.S. 532, 540 (1965); 2 J. Story,
Commentaries on the Constitution of the United States 541
(4th ed. 1873). To that end, Rule 14 of the Federal Rules of
Criminal Procedure aims “to promote economy and efficiency
and to avoid a multiplicity of trials” only so long as “these

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objectives can be achieved without substantial prejudice to the
right of the defendants to a fair trial.” Bruton v. United States,
391 U.S. 123, 131 n.6 (1968) (internal quotation marks
omitted). So when competing narratives call for a jury to
convict one defendant in order to acquit another, we require
separate juries to avoid substantial prejudice to any single
defendant. Cornelius Green was not afforded such a trial. We
will therefore reverse the denial of his motion to sever, vacate
his conviction and sentence, and remand.
I.
A.
Though this appeal arises from three competing stories,
a good deal of information remains clear and undisputed.
Green was a member of the Infamous Ryders motorcycle club,
along with co-defendant William Murphy and Steven Wong.
Another man, Ishmael Snowell, was invited into the club; he
declined membership, and allegedly began gossiping about
Wong.
Ostensibly to exchange money and sort out their
fractious relationship, Wong and Snowell met at the Infamous
Ryders clubhouse on July 22, 2020, with Green and Murphy
also present. Snowell and Murphy began a fight-club-style
altercation with Green refereeing. During the fight, Wong
looked at Snowell’s phone and discovered photographs of
money. Wong also began attacking Snowell and asked where
the money was; Snowell eventually claimed that it was at his
aunt’s house in Reading, Pennsylvania. Wong ordered Snowell
into the back of Murphy’s car. Murphy got in the driver’s seat,
Green got in the back with a gun, and they began driving
toward Reading to retrieve the money. Wong, who rode his
motorcycle alongside the car, remained in contact over the

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phone. Wong peeled away eventually, but he continued to stay
in touch.
At this point, stories begin to diverge. The three men in
Murphy’s car stopped at a Wawa gas station and Green went
in to buy water. Testimony differed about whether Murphy or
Snowell could have left the car while Green was inside or
whether a motorist stopped and offered Murphy and Snowell
help (which they rejected). In any event, neither Murphy nor
Snowell made any attempt to flee the car; once Green returned,
he took over driving and they continued their journey to
Snowell’s aunt’s house.
According to Snowell, all three men entered his aunt’s
house upon arrival and unsuccessfully searched for the money
Wong had seen in Snowell’s photos. Wong reacted angrily
over the phone when he learned of the missing money, and
Snowell recalls Wong ordering Green to shoot him.
Confronted with that threat, Snowell attempted to escape from
Green and Murphy. But before he could leave the property
entirely, Green engaged him in a fight outside. Snowell recalls
Green attempting to put him back in the car, but he resisted
long enough for neighbors to call the police. Green and
Murphy then left the scene.
Murphy testified at trial, and told a slightly different
story. Murphy said that, while stopped at Wawa, he never had
possession of Green’s gun. Once in Reading, he sat in the car
for about five minutes while Green and Snowell entered the
house. At that point, he went inside and saw Green brandishing
a gun at Snowell. He intervened, pleading for Green to put the
gun down. While Murphy argued with Green, Snowell walked
out of the house and refused to cooperate with them any longer.
And so after a chaotic series of events, Murphy left the scene
with Green on Wong’s orders before police arrived.

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B.
The grand jury indicted Green, Murphy, and Wong for
kidnapping Snowell and holding him to commit a robbery in
violation of 18 U.S.C § 1201(a)(1). All three defendants
pleaded not guilty; Green moved to sever his trial from both
Murphy and Wong. The District Court denied the motion
without prejudice, reasoning that Green had not borne his
burden to justify severance under Rule 8(b) or Rule 14 of the
Federal Rules of Criminal Procedure. Wong’s trial was
nonetheless severed from that of his co-defendants because of
a last-minute change in attorneys. Wong was eventually
acquitted, in a trial at which Murphy testified.
At the beginning of Green and Murphy’s joint trial, each
party previewed their respective theories of the case in opening
statements to the jury. The Government would seek to prove
that Wong had ordered both Green and Murphy to kidnap and
rob Snowell; Murphy, who acknowledged there was a
kidnapping, would seek to prove that he had been coerced by
Wong and Green to commit the kidnapping; and Green would
argue that there was no kidnapping.
Concerned by these openings, Green renewed his
motion to sever at the end of the first day of trial. He argued
that he faced two prosecutions: one by the Government, which
alleged he had cooperated in a joint kidnapping effort, and
another by Murphy, who alleged that Green had forced him to
participate in a kidnapping. Entertaining Green’s renewed
motion, the District Court questioned Murphy’s counsel about
whether Murphy would claim that Green had coerced him:
[COUNSEL FOR MURPHY]: My
understanding is that there will be more
testimony where Ishmael Snowell will say there

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was a gun in the car and that that gun was
handled by [Green], and that’s his testimony. But
for [Murphy’s] purposes, the force to begin the
engagement in any robbery or kidnapping came
from Mr. Wong, and anything that Mr. Murphy
did after that was sheer survival.
THE COURT: So you’re not going to advance a
defense that the coercion about which you spoke
in your opening came from, directly or
indirectly, from Mr. Green?
[COUNSEL FOR MURPHY]: No, he’s going to
testify to what happened, and that it came from
Wong, but he is going to testify to what happened
at the house.
App. 159 (emphasis added). With Murphy’s mixed proffer in
mind, the Court “[did]n’t see the kind of conflict that would
cause [it] to sever” Green’s trial. App. 159. But Green’s
counsel asked for clarification: would Murphy testify that
Green was on the phone with Wong while inside Snowell’s
aunt’s house, and that Green had threatened Snowell with a
gun? Murphy’s counsel deflected, noting that he expected
Snowell to testify to the fact “that Wong was on the phone with
Green and Green had a gun out.” App. 159. He said nothing
about his client’s testimony, and the District Court again
denied Green’s motion without prejudice.
Trial proceeded. The Government called Snowell to
testify the next day, among other witnesses. He recalled being
driven to his aunt’s house by Murphy at Wong’s behest, with
Green seated alongside him in the backseat armed with a gun.
Snowell testified that Wong had ordered “them” to shoot him

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when the trio could not locate the money pictured on his phone.
And he remembered escaping from the house before he could
be harmed.
At the end of the Government’s case-in-chief, Green
renewed his severance motion for a final time. And while
Murphy’s counsel reiterated that Murphy would testify that
Wong was the “major force behind” the kidnapping, counsel
was clear that Murphy would also testify about what he saw
inside Snowell’s house. App. 250. Specifically, he proffered
that Murphy’s testimony would include “Mr. Green being
directed to look for stuff and to, potentially, shoot Mr.
Snowell.” App. 250. The District Court again denied the
motion. It read at length from our relevant precedent and
concluded, “I do not find these [defenses] to be
mutually[ ]antagonistic . . . . It’s clear to me that the jury could
do what this particular case requires. They are able to assess
the guilt or innocence of each Defendant, on an individual and
independent basis.” App. 250–51.
Murphy then testified in his own defense. Consistent
with his proffer, he noted that Wong prompted a fistfight
between him and Snowell, that Green was present to referee,
that Wong pointed a gun at Murphy and told him to drive Green
and Snowell to Snowell’s aunt’s house, and that Murphy
eventually saw Green threaten to shoot and kill Snowell. In
particular, he recalled stepping between Green and Snowell
and pleading with Green to spare the latter’s life. Murphy also
testified that the Federal Bureau of Investigation and the
Bureau of Alcohol, Tobacco, Firearms and Explosives
interviewed him as part of an investigation of Green and Wong.
He noted that agents said they could help him, “as long as [he]
help[ed] [them] take down Green and Wong,” because they
“really want[ed] them for other crimes that they’ve
committed.” App. 261, 269.

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While the Government used its closing to argue for the
conviction of both Murphy and Green, it acknowledged that
Murphy’s testimony painted Green as fully involved in the
kidnapping. Green’s closing emphasized that Snowell was
dishonest, and that Murphy was lying about coercion. For
example, Green pointed to the fact that Murphy and Snowell
made no attempt to escape when he left the car and went inside
Wawa. Murphy’s closing reiterated his coercion theme, and
referenced Green several times. Specifically, he alleged that
“Green [was] driving,” that “Green ha[d] a gun,” and that
Murphy “was forced” to participate in the kidnapping because
“they were threatening me.” App. 293 (emphasis added). And
the Government further drove that point home on rebuttal:
“Mr. Green wants you to believe that the kidnapping didn’t
occur, [Murphy] wants you to believe that it did occur, and he
was justified in doing so. Obviously, both of those theories
cannot be true.” App. 294.
The District Court instructed the jury on the elements of
kidnapping and provided joint-trial instructions consistent with
our decision in United States v. Voigt, 89 F.3d 1050, 1096 (3d
Cir. 1996). It took the jury three hours to convict Green and
acquit Murphy. The District Court went on to sentence Green
to 132 months’ (eleven years’) imprisonment. His sentence
final, Green timely appealed.
II.1
Green’s burden is a heavy one. As an initial matter, we
review a district court’s decision to deny a motion to sever for
1 The District Court had jurisdiction under 18 U.S.C.
§ 3231 (offenses against the United States). We have
jurisdiction under 28 U.S.C. § 1291 (final decisions of district
courts).

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abuse of discretion. United States v. Boscia, 573 F.2d 827, 832
(3d Cir. 1978). We “determine from the record, as it existed
when the motion was made, what trial developments were then
reasonably foreseeable, and in that light decide whether the
district court abused its discretion in denying the severance
motion.” United States v. McGlory, 968 F.2d 309, 340 (3d Cir.
1992). And for us to reach such a conclusion, we must be
convinced that the District Court’s “decision rests upon a
clearly erroneous finding of fact, an errant conclusion of law
or an improper application of law to fact.” NLRB v. Frazier,
966 F.2d 812, 815 (3d Cir. 1992) (citation omitted).
Second, Federal Rule of Criminal Procedure 14 allows
for the severance of joint trials only “[i]f the joinder of . . .
defendants . . . or a consolidation for trial appears to prejudice
a defendant.” Our default procedure is thus to conduct a joint
trial of defendants who are indicted together, “because joint
trials ‘promote efficiency and serve the interests of justice by
avoiding . . . inconsistent verdicts.’” United States v. Urban,
404 F.3d 754, 775 (3d Cir. 2005) (quoting Zafiro v. United
States, 506 U.S. 534, 537 (1993)).
But the Supreme Court teaches that severance under
Rule 14 should be granted “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.” Zafiro, 506 U.S. at 539.
The right to a fair trial is one such trial right. See, e.g., United
States v. Agurs, 427 U.S. 97, 107 (1976); United States v.
Gatto, 995 F.2d 449, 455 (3d Cir. 1993); see also United States
v. Lane, 474 U.S. 438, 446 n.8 (1986) (misjoinder can “deny a
defendant his Fifth Amendment right to a fair trial”). But only
where prejudice from the violation of a right is “clear and
substantial” does Rule 14 require severance. McGlory, 968
F.2d at 340 (quoting United States v. Eufrasio, 935 F.2d 553,

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568 (3d Cir. 1991)).
III.
Given the high standards outlined above, motions to
sever predicated on prejudicial joint trials are frequently made
and infrequently granted. See Voigt, 89 F.3d at 1094–95; see
also United States v. McGill, 815 F.3d 846, 926 (D.C. Cir.
2016) (reasoning that a “conflicting defense” is rarely a ground
for reversing an order denying severance); United States v.
Shively, 715 F.2d 260, 267 (7th Cir. 1983) (“Severance is
argued in almost every case where there are multiple
defendants, and appellate courts give the argument short shrift,
regarding it as a matter within the discretion of the trial
judge.”). But the mere rarity of the argument’s success does
not eviscerate the Fifth Amendment’s guarantee of a fair trial.
The risk of an unfair trial may occur in three scenarios: (1)
“when evidence that the jury should not consider against a
defendant and that would not be admissible if a defendant were
tried alone is admitted against a codefendant;” Zafiro, 506 U.S.
at 539; (2) when “essential exculpatory evidence that would be
available to a defendant tried alone were unavailable in a joint
trial;” id., and (3) when defendants assert mutually antagonistic
defenses, Voigt, 89 F.3d at 1094. With reference to the third
category, we have long held that a mutually antagonistic
defense exists when “acquittal of one codefendant would
necessarily call for the conviction of the other.” Id. But before
making that assessment, we address several specific
considerations relevant to our analysis.
First, Voigt does not stand for the proposition that
defenses are mutually antagonistic only when they are true
mirror images of each other (that is, where Defendant A may
say that Defendant B committed a crime alone, and Defendant
B may say that Defendant A committed the crime alone).

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Rather, we emphasize that a defense must “call for” the
conviction of the other. See id. A defendant is not required to
show that a jury would be left with no other option but to
convict him if a jury believes his co-defendant. After all, a jury
may always solve that problem by issuing inconsistent verdicts
between two defendants in a joint trial. Harris v. Rivera, 454
U.S. 339, 345 (1981). So we pay special attention to what a
given defense “calls for” from the jury.
In the same vein, some language from our precedents
suggests that judicial economy may justify joint trials so long
as a jury can compartmentalize evidence against particular
defendants, even where prejudice exists. McGlory, 968 F.2d at
341; see also United States v. Jackson, 649 F.2d 967, 973 (3d
Cir. 1981). And we do not discount that concern; severance of
joint trials will often result in the expense of more judicial time
and resources. But we have observed a steady decline of
criminal trials in our circuit, as in others. See generally Robert
J. Conrad, Jr. & Katy L. Clements, The Vanishing Criminal
Jury Trial: From Trial Judges to Sentencing Judges, 86 Geo.
Wash. L. Rev. 99 (2018) (examining decline of federal jury
trials and corresponding contributing factors). In fact, over the
last twenty years the number of criminal jury trials has fallen
by nearly fifty percent across the federal system—from 2,751
trials in the year preceding March 2004 to just 1,526 trials in
the year preceding March 2024. United States Courts, Table D-
4–U.S. District Courts–Criminal Federal Judicial Caseload
Statistics (Mar. 31, 2004) (2004 Data), https://perma.cc/8LJ5-
G9RQ; United States Courts, Table D-4–U.S. District Courts–
Criminal Federal Judicial Caseload Statistics (Mar. 31, 2024)
(2024 Data), https://perma.cc/39DE-663S. And now, just one
out of every fifty federal criminal defendants will proceed to a
jury trial. 2024 Data, https://perma.cc/39DE-663S.
To be sure, it has ever been the case that no defendant

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should “be deprived of a fair trial because it is easier or more
economical.” Boscia, 573 F.2d at 833. Our judicial system does
not aim to resolve cases as quickly or inexpensively as
possible, to the detriment of a criminal defendant.2 To be sure,
certain severed trials might require more judicial time and
energy to adjudicate than would a single joint trial. But even
that eventuality is not assured; in some cases, severed trials
might actually conserve court resources. See Zafiro, 506 U.S.
at 544–45 (Stevens, J., concurring) (declining to endorse
“unqualified” preference for joint trials, and reasoning that
trying certain multidefendant cases separately is “not only
more reliable, but also more efficient and manageable than
some of the mammoth conspiracy cases which the Government
often elects to prosecute”).
So, it is true that judicial economy remains a relevant
consideration for courts in determining whether to sever the
joint trials of defendants who raise allegedly antagonistic
defenses. But to the extent that our earlier decisions rest on the
notion that there is a “substantial” public interest in
economically resolving cases in joint trials, we are not
convinced that concerns of judicial economy should weigh as
heavily in our severance analysis as they have in prior decades.
IV.
Taking account of our standards for discerning mutually
antagonistic defenses and for assessing judicial economy, we
begin by considering whether Green has demonstrated that his
trial was improperly joined to Murphy’s in light of mutually
antagonistic defenses. We next review several evidentiary
2 Some courts conduct a joint trial with two juries,
another way of enforcing constitutional rights and preserving
judicial economy.

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byproducts of the joint trial, and whether they speak to the
propriety of joinder. For the interdependent reasons set forth
below, we conclude that Green’s joinder was improper.
A.
We start with Green and Murphy’s alleged mutually
antagonistic defenses. While Murphy had yet to testify before
the District Court denied each of Green’s motions to sever, it
was nonetheless aware of the outlines of Murphy’s testimony
following several proffers from his attorney. While those
proffers involved Murphy placing the heft of the blame on
Wong for coercing him to participate in a kidnapping scheme,
they also clearly indicated Murphy would testify that a
kidnapping did occur and that Green was coercive and violent
on the day of the alleged kidnapping.
Our review of these proffers is cabined by the mutually
antagonistic defense doctrine and its corresponding abuse-of-
discretion standard. We may review two categories of
information: that which was actually known to the District
Court at the time it considered a motion to sever, and that
which was reasonably foreseeable. McGlory, 968 F.2d at 340.
So, a district court’s decision not to sever—even if a complete
trial record reveals incompatible defenses—is no abuse of
discretion if the District Court does not know and cannot
foresee the mutually antagonistic nature of the parties’
arguments. Id.
Given that context, assessing future testimony is
inherently difficult. A lawyer’s proffer of a client’s expected
testimony, by its very nature, cannot resolve all ambiguities
about what the witness will actually say on the stand. A pretrial
hearing, on the other hand, permits “relevant testimony [to be]
elicited in full,” United States v. Blunt, 930 F.3d 119, 128 n.6
(3d Cir. 2019), and eliminates guesswork. That benefits both

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courts and litigants, as a proffer may overstate or understate the
extent to which one witness’s testimony might conflict with
another’s. We thus reiterate the advantages of conducting a
pretrial hearing in situations where defendants may present
mutually antagonistic defenses. But when one is not held, a
proffer is as close a substitute as possible, and frames our
consideration of reasonably foreseeable testimony.
In view of Murphy’s various proffers, we will consider
seriatim the District Court’s decisions to deny Green’s motion
to sever. He first raised his motion in pretrial papers, and the
District Court denied it without prejudice. That was the correct
decision, and we do not disturb it here; the District Court and
Green were unaware of the contours of Murphy’s duress
defense until trial began, and Murphy had made no proffers
that would shed light on his intentions. Indeed, even Green
conceded the possibility that his motion was premature at the
time he first made it.
Our review of the District Court’s denials of Green’s
motions to sever becomes more complicated as the record
progresses. Still, based on the information before it, we
conclude that Green’s motion after the first day of trial did not
warrant severance. At the time, the District Court did not know
whether Murphy would even testify or what the Government’s
case-in-chief would show. Without that information, the
District Court was placed in the difficult position of predicting
the content and scope of witness testimony based solely on the
parties’ opening statements and Murphy’s single proffer. And
given those unanswered questions, we cannot fault the District
Court for erring on the side of our default preference for joint
trials.
But we must still consider Green’s final motion at the
end of the Government’s case-in-chief. Several pieces of

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testimony had crystalized the events in question. Snowell,
testifying for the Government, claimed that Murphy had driven
him and Green to his aunt’s house, that Green had been armed
with a gun, that Green threatened him with the gun, and that he
managed to escape from his aunt’s house after the trio (Green,
Murphy, and Wong by cell phone) was unable to find the
money they sought. In other words, Snowell described a
kidnapping in which only Green had personally threatened him
with a firearm—consistent with Murphy’s counsel’s earlier
proffer regarding Snowell’s expected testimony.
When Green made his third severance motion,
Murphy’s counsel was called upon once more to proffer what
his client would testify. Counsel noted that Murphy would
identify Wong as the “major force” behind the kidnapping, but
also say that Green was in phone contact with Wong, possessed
a gun, and was prepared to shoot Snowell. So the testimony
Snowell had just provided that he had never been free to leave
and that a kidnapping had, in fact, occurred, would be
corroborated by Murphy, directly rebutting Green’s defense.
Moreover, Snowell’s testimony was consistent with much of
the testimony Murphy was projected to give in support of his
own coercion defense. So the testimony Snowell had just
provided was consistent with the testimony Murphy was
projected to give.
True, the District Court had not yet heard Murphy’s
testimony. It therefore lacked complete information about what
Murphy would say about Green. But courts must also consider
what trial evidence is reasonably foreseeable and assess its
impact on allegedly irreconcilable defenses. See Blunt, 930
F.3d at 125 (concluding that co-defendant’s motion papers, in
which she admitted she would offer evidence admissible only
through her own testimony, showed that testimony
necessitating severance would come in at trial). Here,

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Murphy’s counsel’s series of proffers rendered foreseeable
enough Murphy’s intention to testify to events implicating
Green. While no proffer can replace hindsight, Murphy was
consistent in advising that his testimony would include at least
some information tending to prove that Green had coerced him
into a kidnapping. That expected testimony runs straight into
the District Court’s earlier question: “So you’re not going to
advance a defense that the coercion about which you spoke . .
. came from, directly or indirectly, from Mr. Green?” App. 159.
Murphy’s proffers, while cloaked in a focus on Wong,
previewed exactly the sort of defense the District Court was
concerned about. They thus provide a strong reason to sever
Green’s trial from Murphy’s.
A further justification for severance can be found in a
point implicit in our prior decisions, but that we have not
discussed at any length: that for multiple reasons, defenses are
less likely to be mutually antagonistic where they arise as part
of a conspiracy, as opposed to part of a joint trial of several
defendants charged with separate substantive crimes. That is
because conspiracies are unique; unlike substantive offenses,
they “require[] an agreement—and in particular an agreement
to do an unlawful act—between or among two or more separate
persons,” and do not depend on whether the substantive
offense is actually committed. Ziglar v. Abbasi, 582 U.S. 120,
153 (2017); Salinas v. United States, 522 U.S. 52, 65 (1997).
Therefore, when a co-conspirator’s defense implicates a
defendant in committing a substantive offense, that evidence is
less likely to be unduly prejudicial.
So, grouping defendants who are part of a single
conspiracy into a single trial makes intuitive sense. Because a
conspirator’s crime is an agreement to commit another crime,
trying together all the parties to that agreement is both efficient
and a better means of presenting the scope of a criminal

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conspiracy to a jury. United States v. Provenzano, 688 F.2d
194, 199 (3d Cir. 1982), abrogated on other grounds by Reves
v. Ernst & Young, 507 U.S. 170, 179 (1993). For that reason,
other circuits have emphasized that the rule that “persons who
are jointly indicted shall be tried together . . . applies with
particular force to conspiracy cases.”3 United States v.
Gonzalez, 804 F.2d 691, 694 (11th Cir. 1986) (internal citation
3 Proving the point, every leading case on the mutually
antagonistic defense doctrine from our circuit, as well as from
the Supreme Court, has arisen in the conspiracy context.
Zafiro, 506 U.S. at 536 (drug conspiracy); McGlory, 968 F.2d
at 314 (drug conspiracy); Voigt, 89 F.3d at 1096 (wire fraud
conspiracy); Boscia, 573 F.2d at 829 (mail fraud conspiracy).
And, unsurprisingly, those cases did not turn out in their
respective defendants’ favor. Our sister circuits also emphasize
the role of conspiracy charges in our default joint-trial
framework. See United States v. Joiner, 418 F.3d 863, 868 (8th
Cir. 2005) (“Generally, co-defendants charged with a
conspiracy should be tried together because a joint trial gives
‘the jury the best perspective on all of the evidence and
therefore increases the likelihood of a correct outcome.’”
(citation omitted)); United States v. Knowles, 66 F.3d 1146,
1158 (11th Cir. 1995) (“This court is reluctant to reverse a
district court’s denial of severance, particularly in conspiracy
cases.”); United States v. Dempsey, 733 F.2d 392, 398 (6th Cir.
1984) (“As a general rule, especially in conspiracy cases,
parties who are jointly indicted should be tried together.”);
United States v. Kelly, 569 F.2d 928, 938 (5th Cir. 1978) (“The
general rule, especially in conspiracy cases, is that persons
jointly indicted should be tried together and that severance
should not be granted absent a showing of the most compelling
prejudice.”). That same reasoning is persuasive here.

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omitted). And for our part, we “believe that good reasons
support the general rule that persons charged with conspiracy
should be tried together.” United States v. De Peri, 778 F.2d
963, 984 (3d Cir. 1985). “Chief among these is the
conservation of public resources that would be lost if the same
evidence were presented at separate trials and the decreased
possibility of prejudice where the evidence against each
defendant is strong.” Id. And if that were not enough, joint
conspiracy trials also limit “the tactical disadvantage to the
government from disclosure of its case.” Jackson, 649 F.2d
at 973.
But what makes conspiracies amenable to joint trials is
what can make substantive charges against individuals
comparatively suited to separate trials. Unlike in a conspiracy
case, the Government need not prove the existence of an
agreement or any cooperative criminal activity when
individuals are charged with substantive offenses. And the
possibility of prejudice is heightened because a co-defendant’s
evidence may have little prejudicial effect on a defendant’s
guilt in agreeing to commit an offense, yet that same evidence
may be significantly more harmful as to a defendant’s guilt in
committing a substantive offense. See Zafiro, 506 U.S. at 539.
While separate trials heighten the risk that the Government’s
trial strategy will be revealed piecemeal to a number of
defendants, Jackson, 649 F.2d at 973, that risk is lessened
when the Government is obligated to prove up substantive
charges against individual defendants.
The Government did not charge Wong, Green, and
Murphy as part of a conspiracy. Whether that was the result of
a lack of evidence of an agreement or for any other reason is
not for us to question. But with no allegations of a conspiracy,
evidence offered by Murphy that might have been harmless in
the context of a conspiracy could now be very damaging. See

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Zafiro, 506 U.S. at 539. Add to this the mutually antagonistic
defenses presented by Green and Murphy, and the difficulties
with conducting a joint trial of non-coconspirators become
even more evident. With no allegation that Green, Murphy, and
Wong had agreed to pursue criminal ends, the risk of prejudice
is heightened further; the jury might be more likely to believe
that one defendant committed a substantive offense merely
because his co-defendant—but not co-conspirator—committed
a crime.
In sum, we recognize that “courts have consistently held
that finger-pointing and blame-shifting among coconspirators
do not support a finding of mutually antagonistic defenses.”
Voigt, 89 F.3d at 1095. And, to be sure, there is an element of
blame-shifting in Murphy and Green’s versions of events. But
Murphy’s proffers and the lack of any conspiracy mean that
their defenses go beyond finger-pointing; instead, they
resemble a triangular prosecution between the Government,
Green, and Murphy.
B.
Beyond Green and Murphy’s dueling defenses,
prejudicial joinder may exist in cases where evidence is either
admitted or barred from the courtroom because of a trial’s joint

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nature.4 And so we consider evidence used to inculpate Green
that was admissible only through Murphy. Specifically,
Murphy testified that federal agents were interested in
interviewing him because they planned to “take down Green
and Wong.” App. 261, 269. That prejudicial evidence was
unaccompanied by any limiting instruction.5
Prejudicial joinder “might occur when evidence that the
jury should not consider against a defendant and that would not
be admissible if a defendant were tried alone is admitted
against a codefendant.” Zafiro, 506 U.S. at 539. That is what
happened in this case, as Murphy testified that federal agents
said they could help him avoid legal jeopardy from the FBI and
4 Our caselaw addressing mutually antagonistic
defenses has, at times, appeared to conflate irreconcilable
defenses with the notion of prejudicial joinder generally. See
United States v. Blunt, 930 F.3d 119, 128 (3d Cir. 2019)
(discussing “mutually antagonistic defenses” of co-defendant
spouses, but holding that severance was warranted because of
evidence that could have helped the defendant-wife but was
excluded to avoid prejudicing the defendant-husband).
Mutually antagonistic defenses are only one means of
demonstrating prejudicial joinder, however; other
circumstances—such as evidence admitted through a co-
defendant that would not otherwise come into a trial—provide
independent reasons that joinder may be prejudicial. Zafiro,
506 U.S. at 539.
5 Another piece of Murphy’s testimony arguably
implicated Green: namely, that the Infamous Ryders had
ordered the murder of a police officer. Green raised—and the
District Court sustained—an objection to that testimony under
Federal Rule of Evidence 404(b), and issued a curative
instruction to the jury.

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ATF. He claimed they made that promise “as long as [he]
help[ed] them take down Green and Wong,” because they
“really want[ed] them for other crimes that they’ve
committed.”6 App. 269.
That evidence is doubtless prejudicial; Murphy linked
Green directly with ongoing investigations by two federal law
enforcement agencies, information that would be entirely
inadmissible in a solo trial of Green. See Fed. R. Evid. 401
(relevance), 403 (probative value substantially outweighed by
risk of unfair prejudice), 404 (other bad acts). And no curative
instruction was offered following that testimony.7 It follows
that—even apart from the mutually antagonistic character of
their defenses—the joint trial also exposed Green to
unwarranted prejudicial testimony. But we must focus on that
which was actually known or reasonably foreseeable to the
District Court at the time it considered the motion to sever,
McGlory, 968 F.2d at 340, and we cannot conclude that the
District Court would have reasonably foreseen this evidence.
As with our preceding discussion, this evidence alone might
6 He did not repeat that statement at Wong’s subsequent
trial. 7 Green did not object to this testimony on severance
grounds, and thus arguably forfeited any claim stemming from
that portion of Murphy’s testimony. But we have explained
that our forfeiture doctrine permits us “to excuse waiver or
forfeiture concerns . . . especially when the government or
appellee overlooks or disregards waiver or forfeiture.” United
States v. Washington, 869 F.3d 193, 208 n.53 (3d Cir. 2017).
Here, the Government makes no mention of waiver or
forfeiture in its briefing. We thus consider in our prejudicial
joinder analysis Murphy’s mention of the ongoing federal
investigation into Green and Wong.

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not warrant severance under Rule 14; that said, its admission
as part of Green’s joint trial again highlights the risk of
prejudice that was posed in denying the motion and may be
considered when we assess whether “clear and substantial”
prejudice resulted from that denial.
The Supreme Court has separately noted that “a
defendant might suffer prejudice if essential exculpatory
evidence that would be available to a defendant tried alone
were unavailable in a joint trial.” Zafiro, 506 U.S. at 539. Green
identifies just one piece of exculpatory evidence unavailable to
him at a joint trial: Murphy’s testimony that a bystander asked
him and Snowell—while they were alone in the car at Wawa—
whether they needed help, and that they turned down the offer.8
That evidence, Green argues, would tend to show that neither
Murphy nor Snowell thought they were in the midst of a
kidnapping.
Nevertheless, Murphy offered that testimony only at
Wong’s subsequent severed trial. While this fact pattern is
unusual, and involves information only gleaned from a co-
defendant’s subsequent testimony in another co-defendant’s
trial, it cannot alter the scope of our analysis. To determine
whether severance is warranted, we look solely to what the
District Court knew or could reasonably be expected to know
at the time a motion to sever is made. McGlory, 968 F.2d at
340. The District Court lacked actual knowledge of Murphy’s
future testimony at Wong’s separate trial, and it was not
reasonably foreseeable that Murphy would offer new
testimony about a good Samaritan at a gas station. So we
cannot conclude that the District Court abused its discretion in
8 Green points to several other pieces of evidence that
he claims were unavailable to him, but all of that information
was put before the jury at his joint trial.

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denying severance on the grounds of unavailable exculpatory
evidence.
* * *
So, we are left with just one conclusion: that the denial
of Green’s severance motion was improper. Green and Murphy
presented mutually antagonistic defenses, and Murphy
inculpated Green in a federal investigation during his
testimony. But misjoinder, by itself, does not require
severance; rather, we must consider whether “clear and
substantial prejudice” has resulted from misjoinder. McGlory,
968 F.2d at 340. Eufrasio, 935 F.2d at 568. Only then can we
determine whether the District Court abused its discretion in
refusing to sever Green’s trial.
V.
“Rule 14 leaves the determination of risk of prejudice
and any remedy that may be necessary to the sound discretion
of the district courts.” Zafiro, 506 U.S. at 541. The District
Court abused its discretion in assessing the prejudice stemming
from a joint trial, and the only appropriate remedy in this case
is to reverse the denial of Green’s motion to sever and vacate
Green’s conviction.
A.
First, we consider the risk of prejudice. As noted, “[a]
defendant must pinpoint clear and substantial prejudice
resulting in an unfair trial” in order to win reversal of a district
court’s denial of a motion to sever. McGlory, 968 F.2d at 340
(internal quotation marks omitted). “It is not enough to show
that severance would have increased the defendant’s chances
of acquittal.” Id. Nor are “[m]ere allegations of prejudice . . .
enough” to require vacatur of Green’s conviction. Reicherter,
647 F.2d at 400.

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As we noted above, severance may be required in three
instances. We addressed the reasonable foreseeability of
mutually antagonistic defenses above. Here, we address
whether Green suffered clear and substantial prejudice on any
of those three grounds. Green has made his required showing.
First, he presents far more than “mere allegations” of
prejudice. Green references Murphy’s testimony that the FBI
and ATF told him they were targeting Green and Wong—
rather than Murphy—as part of their investigation. He argues
that Murphy extensively portrayed himself as Green’s victim,
explaining in his closing argument that “Green ha[d] a gun . . . .
I was forced, they were threatening me, what was I supposed
to do?” App. 293. Most importantly, Murphy’s “claim of
innocence [was] predicated solely on” Green’s guilt. Voigt, 89
F.3d at 1094. Murphy claimed he was coerced into assisting in
a kidnapping. That kidnapping involved traveling in a car
along with Green and Snowell. Snowell was not a kidnapper,
and Murphy’s defense was that he was not one either.
Believing Murphy’s recounting of events thus called for the
jury to believe Green coerced him into kidnapping Snowell.
And, to take the reverse, believing Green’s story—which
involved leaving Murphy and Snowell alone in the car at a gas
station while he bought water, apparently free to leave—would
call for the jury to disbelieve Murphy’s coercion theory.
These tangled defenses are, in part, exactly why our
severance doctrine asks whether juries “can reasonably be
expected to compartmentalize the evidence as it relates to
separate defendants in view of its volume and limited
admissibility.’” United States v. Sandini, 888 F.2d 300, 307 (3d
Cir. 1989) (quoting United States v. De Larosa, 450 F.2d 1057,
1065 (3d Cir. 1971)); see also United States v. Alexander, 982
F.2d 262, 266 (8th Cir. 1992) (holding that a defendant must

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show he was “prejudiced by the jury’s inability to follow the
trial court’s instructions and to ‘compartmentalize the
evidence’ as it related to the separate defendants” in order to
warrant severance). Here, the trouble with compartmentalizing
Murphy’s testimony implicating Green is immediately
apparent. Murphy’s testimony about Green is linked to the
jury’s assessment of Green’s guilt, and Green’s defense is
linked to the jury’s assessment of Murphy’s guilt as well. So,
we cannot endorse the District Court’s conclusion that the jury
would be able to compartmentalize inculpatory evidence
against Green and Murphy; to do so would vitiate our
prejudicial joinder doctrine. Taking all this together, the risk of
prejudice stemming from so irreconcilable a set of defenses—
together with inculpatory evidence admitted through a co-
defendant—is substantial, and requires a remedy.9
B.
We reject the argument that other measures taken by the
District Court adequately addressed this prejudice. We are
mindful that “Rule 14 does not require severance even if
9 Notably, this case provides a clear counterfactual to
Green’s conviction at his joint trial: Steven Wong’s subsequent
acquittal. While each jury is unique, Wong and Green occupied
similar roles—that is, as the two “real” kidnappers—in
Snowell and Murphy’s recounting of events. Green’s
conviction is thus all the more conspicuous, given that both of
his co-defendants were acquitted despite seemingly similar (or
even lesser) degrees of culpability. However, the District Court
was obviously unaware of these acquittals—they had not yet
taken place at the time of Green’s severance motions—so they
cannot play a role in our broader severance analysis. McGlory,
968 F.2d at 340.

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26
prejudice is shown; rather, it leaves the tailoring of the relief to
be granted, if any, to the district court’s sound discretion.”
Zafiro, 506 U.S. at 538–39. To that end, we have intentionally
declined to adopt a bright-line rule mandating that all cases of
prejudicial joinder require severance. United States v. Balter,
91 F.3d 427, 432–33 (3d Cir. 1996). There are two remedies a
district court could consider in similar circumstances:
severance, or limiting instructions. See Zafiro, 506 U.S. at 539.
And the choice between those remedies is tied to the risk of
prejudice. “When the risk of prejudice is high, a district court
is more likely to determine that separate trials are necessary,
but, . . . less drastic measures, such as limiting instructions,
often will suffice to cure any risk of prejudice.” Id.
Here, the risk of prejudice is quite high. True, the
District Court properly instructed the jury “(1) to consider each
count of the indictment and each defendant’s involvement in
that count separately, (2) that the burden is always on the
prosecution to prove guilt beyond a reasonable doubt, (3) that
its verdict as to any defendant on any count should not control
[its] verdict as to any other defendant or any other count, and
(4) that opening statements and closing arguments are not
evidence.” Voigt, 89 F.3d at 1096 (internal quotation marks
omitted). But Voigt instructions are not a panacea. In some
cases, the risk of prejudice will be so high that severance is
required.
For example, in Blunt we confronted similar
circumstances—with one defendant advancing a duress theory
and attempting to cast blame on the other—and reversed the
district court’s denial of a motion to sever. 930 F.3d at 121.
This was despite the fact that the Blunt jury received Voigt
instructions, as did the jury in this case. We reach the same
conclusion here as in Blunt. In cases where mutually

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antagonistic defenses prejudice a defendant—as opposed to
prejudicial joint trials in situations where, say, evidence that
implicates a defendant is admitted for other purposes through
a co-defendant—a limiting instruction will likely prove
insufficient to cure prejudice. That is because mutually
antagonistic defenses speak to the core of a defendant’s theory
of the case, and so any limiting instruction would necessarily
restrict a defendant’s ability to present his chosen defense. We
will not endorse that result. Green has thus made his requisite
showings with respect to improper joinder, prejudice, and the
necessity of severance.
VI.
In the end, we take the Government at its word: Murphy
contended that he had participated in a kidnapping under
duress, Green contended that no kidnapping occurred, and
“[o]bviously, both of those theories cannot be true.” App. 294.
Because Green’s joint trial was improper, and the resulting
prejudice substantial, denying Green’s final renewed motion to
sever was an abuse of discretion warranting a new trial.
For the foregoing reasons, we will reverse the District
Court’s denial of Green’s motion to sever, vacate his
conviction and sentence, and remand for further proceedings.
In light of our disposition of this case, we need not reach
Green’s challenge to his status as a career offender.

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