c33:Nos. 1086, 1087, Dockets 74-1262, 74-1288

FRIENDLY, Circuit Judge
(concurring and dissenting):
While I join in the reversal of Fratti-ni’s conviction, I would also reverse Car-dile’s.
I am unable to share my brothers’ belief that it is feasible to disentangle the two defendants. The Government’s testimony linked them inextricably; there was no evidence on which the jury could rationally find Frattini innocent and Cardile guilty. Even though Exhibit 9' cast Frattini rather than Cardile in the role of the person making the actual delivery, it bolstered the Government’s case that a narcotics transaction had taken place and weakened the testimony of both defendants that nothing of the sort had occurred. Beyond this, reversal of Cardile’s conviction is necessary in justice not only to him but to Frattini. The Government’s evidence at the new trial inevitably will include reference to Cardile, the jury will wonder why he is not a defendant, and if it speculates that he has been convicted, this will work against Frattini. Furthermore, Car-dile’s testimony was helpful to Frattini; it will be the opposite if he now takes the stand and the Government shows he has been convicted. These considerations are of special weight because the Government’s case rested almost entirely on the testimony of Parton and both defendants offered plausible and partially corroborated explanations that their presence on the scene was innocent.
My belief that Cardile also should have a new trial is reinforced by what I consider an arbitrary denial of his counsel’s request for a continuance from 3:30 P.M. until the following morning for the presentation of a witness from Atlanta and an erroneous refusal to permit Cardile to explain that his apparently easy life style was due to hard work by himself and his wife rather than to narcotics profits.
This is the rare narcotics case where the defendants may be innocent. There must be a new trial in any event, and it will take only a few hours longer if both defendants are included. Our duty is to “require such further proceedings to be had as may be just under the circumstances.” 28 U.S.C. § 2106. I do not think it just to either Cardile or Fratti-ni that the new trial should be truncated by our attempting to put asunder two defendants whom the Government’s chief witness so tightly joined.

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