c30:No. 75-2411

BIGGS, Circuit Judge, dissenting.
I confess to an abiding disquietude as to the result reached by the majority in this case.
I.
MISTAKEN INTERPRETATION OF THE RECORD BY THE MAJORITY
I am in full agreement with the majority’s position that severance is within the sound discretion of the trial court. However, the question remains whether the learned District Judge actually exercised his discretion to deny severance until he filed his opinion on October 29, 1975, some 53 days after the last motion for severance set out in Sica’s “Motion for Judgment of Acquittal, for a New Trial, and for Arrest of Judgment,” viz., paragraphs “2” and “7”, filed August 18, 1975. See United States v. Rosa, 404 F.Supp. 602, 610-611 (1975). Sica made two previous motions for severance, one on August 7, 1975 (Tr. 323; 370a), and another the following day, August 8,1975 (Tr. 364; 411a). These motions were met with immediate and unexplained denials by the learned Trial Judge. See the transcript and appendix-page citations set out above.
The majority concludes that there was no abuse of discretion by the trial court in denying Sica’s motion for severance and in its opinion finds that Sica’s offers of proof were neither sufficiently clear nor corroborated. However, it is submitted that the record before us shows no indication the learned Trial Judge exercised his discretion until he rendered his opinion and that he waited until the very end of the trial, i. e., ended by his judgment and opinion in Rosa, 404 F.Supp. 602. At that point, of course, no response could be made by Sica to his ruling pn the motion or any evidence or corroboration of Sica’s good faith could be offered. Had the trial court informed or indicated to Mr. Livingston, Sica’s counsel, that he desired a corroborating statement from Rosa as to what he, Rosa, would say, or whether he intended to testify on Sica’s behalf, with Rosa’s counsel, Mr. Gondelman, standing at sidebar conference with Mr. Livingston, Sica’s counsel, as was the case in Byrd v. Wainwright, 428 F.2d 1017 (5th Cir. 1970), one must assume that Mr. Gon-delman would have informed the court then and there if Mr. Livingston, Sica’s counsel, was misstating the facts. I cannot but believe that had the trial court made the suggestion of amplification of the record, that the suggestion would not have been promptly complied with by counsel for Sica. The majority’s emphasis upon Byrd v. Wainwright, supra, is not misplaced, but should be predicated upon an exercise of discretion by the district court.
The position taken by the Trial Judge seems similar to that of an old time English boxing referee, who merely “keeps the ring” and offers neither act nor word to facilitate the contest, yet Rule 2, Fed.R. Crim.Proc., 18 U.S.C., provides: “Purpose and Construction. These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.”
II.
ERRONEOUS INTERPRETATION BY THE MAJORITY OF BYRD V. WAINWRIGHT
The majority analyzes Sica’s contention that the district court committed reversible error by refusing his motions for severance, relying on the Fifth Circuit’s opinion in Byrd v. Wainwright, 428 F.2d 1017 (5th Cir. 1970). I have no quarrel with the majority’s reliance on Byrd except for the fact that that reliance does not go far enough. Byrd, a state habeas corpus case, sets forth five factors which as a matter of a constitutional minimum ought to be considered when a court is faced with a motion to sever. They are:
“(1) Does the movant intend or desire to have the codefendant testify? How must his intent be made known to the court, and to what extent must the court be satisfied that it is bona fide?
“(2) Will the projected testimony of the codefendant be exculpatory in nature, and how significant must the effect be? How does the defendant show the nature of the projected testimony and its significance? Must he in some way validate the proposed testimony so as to give it some stamp of verity[?].
“(3) To what extent, and in what manner, must it be shown that if severance is granted there is likelihood that the code-fendant will testify?
“(4) What are the demands of effective judicial administration and economy of judicial effort? Related to this is the matter of timeliness in raising the question of severance.
“(5) If a joint trial is held, how great is the probability that a codefendant will plead guilty at or immediately before trial and thereby prejudice the defendant, either by cross-defendant prejudice or by surprise as it relates to trial preparation?”
Id., 428 F.2d at 1019-1020 (notes omitted).
In the instant case the majority concludes that no abuse of discretion, amounting to a deprivation of a fair trial, occurred, using the Byrd analysis. I am compelled to a different result.
In respect to Factor “1” of Byrd, supra, relating to the desire of the movant to have his co-defendant Rosa testify, was, in my view and also according to the majority opinion, met by Sica.
The second factor set out in Byrd, the exculpatory nature of the testimony, the majority, quite remarkably, finds “conjectural.” At Sica’s second request his attorney, Mr. Livingston, said that Rosa would give exculpatory testimony on Sica’s behalf if called in a separate trial. It is quoted in full in this opinion, infra. (Tr. 364; 411a). In judging that factor it must be kept in mind that Sica was kept in the case at the end of the Government’s proofs solely on one theory: that he had silently acquiesced in conversations testified to by Vacarello which suggested that defendants Mannella and Rosa at later meetings would be acting on his behalf. The denial of the severance motion served to deprive Sica of the one witness who could have contradicted Vacar-ello on the contents of the conversation. The district court did not find that Rosa would not have testified in the manner claimed or that Sica’s counsel made the motion in bad faith. The Government’s case against Sica was thin, and the testimony of a witness who could impeach the one Government witness upon whom that case depended cannot be regarded as de minimis. There is no element of conjecture present as to exculpatory value.
The majority opinion also concludes in effect that the statement of the reason for severance was not clear, but on August 7, 1975, the following transpired (Tr. 324; 371a):
“Mr. Livingston [Sica’s counsel]: It has been represented to me that Mr. Rosa is prepared and has testimony that would tend to exculpate Mr. Sica. I cannot call Mr. Rosa in this trial in view of the fact that he is a defendant on trial. Out of the presence of the jury I am informing the Court that I propose to call him as a witness. He has indicated a willingness to testify on behalf of Mr. Sica but that he will not give up his right to refuse to testify in his own trial. I therefore, request that the Court sever either Mr. Rosa or Mr. Sica from this particular trial.
“The Court: In other words, you want me to sever Rosa?
“Mr. Livingston: I care not, either one, your Honor.
“The Court: Either one?
“Mr. Livingston: Well, if Rosa is severed he cannot then refuse to testify in his own trial.
“The Court: I understand your motion to be sever Rosa, the same motion as Mr. Gondelman made.
“Mr. Livingston: It is not the same, I want a trial where I can call Mr. Rosa as a witness and that can be accomplished by my request to sever Mr. Sica because if Mr. Sica is severed and later goes to trial he has no problem that he has now with calling Mr. Rosa as a witness because Mr. Rosa will go to conclusion here and he can be called as a witness at that time in a separate trial.” (Emphasis added).
On August 8, 1975, the following transpired (Tr. 364; 411a):
“Mr. Livingston: It having been represented to me by Mr. Rosa in the presence of his counsel that he could if called exculpate or provide testimony that would tend to exculpate Mr. Sica including but not limited to testimony that Mr. Sica is the father-in-law of Mr. Rosa and Mr. Rosa had a business relationship with Mr. Mannella and on the occasion of July 23 Mr. Sica went along with Mr. Rosa to Mr. Mannella’s office and did not participate in any conversation with Mr. Vaccarello or Mr. Mannella as has been testified to by Mr. Vaccarello. It has been by inference suggested to me that there are other matters that Mr. Rosa would not discuss with me. It appearing that other matters may tend to incriminate him. He indicated a willingness to testify to these exculpatory matters, not called in this particular trial. In view of the Court’s ruling that I cannot either get a severance for Mr. Sica or sever Mr. Rosa from this particular case with this matter now on record I will now before the jury rest as to the defendant Sica.
“The Court: Well, these are the motions that were made yesterday and argued yesterday outside the hearing of the jury. The ruling remains the same.” (Emphasis added).
The majority opinion states in respect to a motion for severance, “After the Government rested, Sica’s counsel made what must be considered a second request for severance, though the request was none too clear.”, i. e., August 7,1975. I cannot agree with this description of the clarity of the request for severance on either August 7th or 8th; both seem entirely clear to me. The language of the motions is neither subtle nor obscure, but states plainly and coherently the movant’s basis for severance. Indeed, I would say the language was “crystal clear”.
In respect to the third factor of Byrd, the willingness of Sica’s codefendant, Rosa, to testify is difficult to assess in light of the learned Trial Judge’s failure to exercise his discretion (discussed in section I of this opinion, supra) until the end of the trial and not when Sica’s motions for severance were made on August 7 and 8.
The fourth Byrd factor, the timeliness of the tender in the light of judicial economy, is urged by the majority, although I am at a loss to understand its position.
Rule 14, Fed.R.Crim.Proc., 18 U.S.C., provides: “Relief from Prejudicial Joinder. 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. In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.” (First emphasis added). The language of the rule suggests that an effective motion can be made at any time during the course of the trial. Indeed, in Schaffer v. United States, 362 U.S. 511, 516, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960), Mr. Justice Clark stated: “We do emphasize, however, that in such a situation [request for severance] the trial court has a continuing duty at all stages of the trial to grant a severance if prejudice does appear.” (Emphasis added).
Indeed, the position of the majority in respect to timely filing incorrectly differs from that of the district court, for it was stated by the District Judge in his opinion in this case, Rosa, supra, 404 F.Supp. at 614, as follows: “The United States submits that raising the issue [of severance], after the government had rested its case in chief was untimely in view of the fact that Rosa was Sica’s son-in-law and the five month interval between indictment and trial. However, since there is no evidence that Rosa’s willingness to testify at a separate trial became known to Sica prior to that time, we believe it would be improper to base our ruling on that ground since the court has a continuing duty at all stages of the trial to grant a severance if prejudice should appear.”, citing Schaffer v. United States, supra.
The attitude toward the motions for severance I think should have been treated with greater deference as was done in Byrd. In United States v. Gleason, 259 F.Supp. 282, 284 (S.D.N.Y.1966), the court stated: “It is enough to say that Karp [the movant] has shown persuasive ground for the claim that she needs Pitkin’s [the co-defendant’s] evidence; that the need must almost certainly go unsatisfied in a joint trial; and that there is substantially greater likelihood of her using him if they are tried separately.”
What has been stated in Gleason, I deem to be truly applicable here.
It should be most particularly noted that in Byrd the opposite result from that favored by the majority in the case at bar was reached, and severance was granted, though the facts favoring severance in Byrd were not as strong as in the case at bar.
For the reasons stated, I must respectfully dissent.
I am authorized to state that Judge Aldi-sert and Judge Gibbons join in this dissent.
. “Motion for Judgment of Acquittal, for a New Trial, and for Arrest of Judgment”: “2. The Court erred in refusing to sever defendant Sica from defendant Rosa. ... 7. Court erred in denying defendant Sica a severance so that he would be able to call in his defense. Mr. Frank Joseph Rosa, who, in the presence of his counsel, indicated that he would in a separate trial testify to matters exculpatory in the nature set forth in the transcript and other matters not revealed because incriminatory in nature.”
. Mr. Gondelman, counsel for Rosa, made an earlier motion for severance of Rosa but on a different ground from that asserted by Sica.
. The fifth factor admittedly is not involved.

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