"Therefore, if because of the * * * [joinder] prejudice developed and was not cured by requiring an election or by other relief, material error afflicted the trial. Prejudice has consistently been held to occur when * * * [joinder] embarrasses or confounds an accused in making his defense. Pointer v. United States, 1894, 151 U.S. 396, 403 [14 S.Ct. 410, 38 L.Ed. 208]; Kidwell v. United States, 1912, 38 App.D.C. 566, 570. See, also, McElroy v. United States, 1896, 164 U.S. 76, 78 [17 S.Ct. 31, 41 L.Ed. 355]." Dunaway v. United States, 92 U.S.App. D.C. 299, 300-01, 205 F.2d 23, 24 (1953). See also Drew v. United States, 118 U.S. App.D.C. ___, 331 F.2d 85.

Prejudice may develop when an accused wishes to testify on one but not the other of two joined offenses which are clearly distinct in time, place and evidence. His decision whether to testify will reflect a balancing of several factors with respect to each count: the evidence against him, the availability of defense evidence other than his testimony, the plausibility and substantiality of his testimony, the possible effects of demeanor, impeachment, and cross-examination.3 But if the two charges are joined for trial, it is not possible for him to weigh these factors separately as to each count.4 If he testifies on one count, he runs the risk that any adverse effects will influence the jury's consideration of the other count. Thus he bears the risk on both counts, although he may benefit on only one. Moreover, a defendant's silence on one count would be damaging in the face of his express denial of the other. Thus he may be coerced into testifying on the count upon which he wished to remain silent.5 It is not necessary to decide whether this invades his constitutional right to remain silent, since we think it constitutes prejudice within the meaning of Rule 14.

In the present case the appellants did not specify at trial the counts upon which they wished to remain silent and why. It does appear that, when the trial court asked Cross whether he wished to testify in his own behalf, Cross answered: "Which case, Your Honor?" During the extended colloquy which followed,6 Cross repeatedly tried, without his counsel's assistance,7 to elaborate upon his objections to the joinder. But the court seems to have precluded this by insisting that the issue of joinder had been determined in the pre-trial denial of severance and by demanding a categorical answer to its original query.8 Thereafter the court applied the same ruling to Jackson.9

An examination of Cross' testimony on both counts supports his claim in this court that he wished to testify on Count II and remain silent on Count I. His testimony on Count II was that he was a victim and not a cohort of the armed robbers who entered the tourist home behind him. This testimony, which met the Government's case directly, was so convincing that the jury believed it despite the prosecutor's efforts at cross-examination and impeachment. On Count I, however, his denial was plainly evasive and unconvincing. He testified that he had been drinking heavily and did not know his whereabouts at the time of the church robbery. On cross-examination he was open to questioning concerning his generally tawdry way of life and his prior convictions.

Thus it would appear that Cross had ample reason not to testify on Count I and would not have done so if that count had been tried separately. In a separate trial of that count the jury would not have heard his admissions of prior convictions and unsavory activities; nor would he have been under duress to offer dubious testimony on that count in order to avoid the damaging implication of testifying on only one of the two joined counts.10 Since the joinder embarrassed and confounded Cross in making his defense, the joinder was prejudicial within the meaning of Rule 14.

We do not agree with the Government that under Dunaway v. United States, 92 U.S.App.D.C. 299, 205 F.2d 23 (1953), this prejudice must be deemed cured by the acquittal on Count II. In that case three counts of housebreaking and two counts of larceny had been tried together. The trial court directed acquittals on the larceny counts, and the jury acquitted the defendant of one of the housebreaking counts. On appeal, we questioned whether "the jury acquittal, considered either alone or with the directed acquittals of larceny, disposes of the claim of prejudice due to the consolidation."11 But since it appeared that Dunaway "had a fair choice to take the stand or not uninfluenced to any significant degree by the consolidation,"12 we affirmed the conviction on the ground that no prejudice could be shown. In the present case we think our discussion of the proceedings below shows that Cross had no such "fair choice" and that the resulting prejudice on Count I was not cured by the acquittal on Count II.

The record does not provide so much substantiation for Jackson's claim in this court that he, too, was confounded in his defense by the joinder of counts. But, like Cross, he had no opportunity below to establish his claim.13 We cannot say that it is meritless. And the record does not foreclose the view that Jackson may have been prejudiced because Cross was coerced by the joinder to testify on Count I. If that count had been severed for trial, the jury would not have heard Cross' self-defeating testimony. It might therefore have given greater credence to Jackson's strong alibi defense.14 Cross' testimony was offered as a result of the trial court's error in refusing his request for severance of the offenses. Thus the prejudice to Jackson must be deemed to have resulted from the same error. "It would be unjust and illogical to separate the two cases and uphold the judgment as to one defendant and reverse it as to the other."15

We find it unnecessary to discuss the other issues raised on this appeal. The judgments on Count I are vacated and the cases are remanded to the District Court for a new trial on that count.

So ordered.

BASTIAN, Circuit Judge (dissenting).

I would affirm the judgments of the District Court. The evidence as to appellants' guilt under Count 1 of the indictment was overwhelming. The majority require a new trial, however, because they feel that the appellants were confounded in making their defenses by the joinder of the two counts, and thus were prejudiced within the meaning of Rule 14, Federal Rules of Criminal Procedure. I disagree.

"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."

As a general rule, acquittal on one of several counts in an indictment cures any defect of misjoinder under Rule 14, Gornick v. United States, 320 F.2d 325 (10th Cir. 1963), thereby precluding any successful claim of prejudice on appeal. United States v. O'Brien, 319 F.2d 437 (7th Cir. 1963); United States v. Rabin, 316 F.2d 564, 568 (7th Cir. 1963).

Similarly, in Dunaway v. United States, 92 U.S.App.D.C. 299, 205 F.2d 23 (1953), this court rejected a claim of prejudice resulting from consolidation of three indictments in a single trial. The jury there had acquitted the defendant on one charge of housebreaking and convicted him on two others. On appeal, we said [92 U.S.App.D.C. at 302, 205 F.2d at 26]:

"Acquittal on one of several consolidated indictments disposes pro tanto of the claim of prejudice. There are cases which indicate it disposes of such claim in toto. Beaux Arts Dresses v. United States, 2 Cir., 1925, 9 F.2d 531; United States v. Perlstein, supra [3 Cir., 120 F.2d 276]; Culjak v. United States, 9 Cir., 1931, 53 F.2d 554, 82 A.L.R. 480; Morris v. United States, 9 Cir., 1926, 12 F.2d 727; Latses v. United States, 10 Cir., 1930, 45 F.2d 949. * * *"1

In Monroe v. United States, 98 U.S. App.D.C. 228, 234 F.2d 49, cert. denied, 352 U.S. 873, 77 S.Ct. 94, 1 L.Ed.2d 76 (1963), involving appeals from convictions in a trial of multiple defendants on a nineteen-count indictment, we said:

"* * * The jury, as we have seen, acquitted Prather entirely of bribery, Anderson was convicted of three of six charges of bribery, King was convicted of only one of eight charges of bribery, Taylor was convicted of one charge and acquitted of one, and Simkins was convicted of four and acquitted of one. Thus, the jury was selective. This at least to some degree indicates that the jury returned verdicts only upon the basis of evidence relevant to each count and each defendant. Finnegan v. United States, 8 Cir., 204 F.2d 105, 109-110. The judge specifically warned the jury in this regard * *.

"Furthermore, the court charged in considerable detail as to the separate substantive counts. * * * Judging the situation after the trial, therefore, as we must do, knowing that all appellants except Monroe and Prather were acquitted of conspiracy, and considering the evidence supporting each separate substantive count which resulted in a verdict of guilty, together with the court's full, fair and careful charge, we may not speculate that the trial actually led to any conviction which would not have occurred except for the consolidated trial. Dunaway v. United States, supra. While the danger of which the Supreme Court warned in Blumenthal v. United States, supra, 332 U.S. at 559, 68 S.Ct. at page [248] 257, 92 L.Ed. 154, that evidence might be transferred to one to whom it does not apply, must be constantly in mind in permitting and in reviewing joint trials — a danger `likely to arise in any conspiracy trial and more likely to occur as the number of persons charged together increases' — we think the conclusion reached in Blumenthal that prejudice did not occur should also be reached here." 98 U.S.App.D.C. at 237, 234 F.2d at 58. [Emphasis supplied.]

In the instant case, the trial judge specifically charged the jury:

"Each of these two counts must be considered separately against each defendant on the sworn testimony before you in this case."

He then accurately, fairly and in some detail summarized for the jury the evidence and contentions of the parties with regard to each defendant on each count of the indictment.

Moreover, a typewritten form was given to the jury on which to record its verdict. The form set out the name of each defendant, and required a separate notation by the jury as to its decision on each of the two counts relating to that defendant; hence the verdict form was a constant reminder to the jury during its deliberations that each count was to be considered separately as to each defendant.

In these several ways the jury was apprised of its responsibility to consider each count and defendant separately.

At the conclusion of his charge, the trial judge asked of counsel if there were "anything further," to which counsel for Cross replied (out of the presence of the jury):

"Your Honor, I think you have covered every aspect of it."

That the jury acquitted the defendants on one count while convicting on the other demonstrates that it did, in fact, consider the evidence as it related to each count separately.

I am of the opinion that the circumstances of this case correspond to those outlined in Monroe, supra, and that the same conclusion should obtain here. The verdict reached in this case, and the careful delineation by the court of the details of each of the two counts in the indictment precludes a holding that the defendants were prejudiced by the joining of the defendants and the counts in the indictment.3

With regard to Jackson, it is said that a new trial is required because Jackson's alibi might have been given greater credence if Cross's "self-defeating testimony" as to count 1 had not been heard by the jury. However, the mere fact that self-defeating testimony has been given by one defendant, which is not evidence as against the other, is not a proper basis for a finding of prejudice requiring reversal. Cf. Dykes v. United States, 114 U.S.App.D.C. 189, 313 F.2d 580 (1962); Carter v. United States, 108 U.S.App.D.C. 277, 281 F.2d 640 (1960); United States v. Schaffer, 266 F.2d 435, 440-443 (2d Cir. 1959); Stewart v. United States, 94 U.S.App.D.C. 293, 294, n. 3, 214 F.2d 879, 880, n. 3 (1954); Robinson v. United States, 93 U.S.App.D.C. 347, 349, 210 F. 2d 29, 31 (1954); Hall v. United States, 83 U.S.App.D.C. 166, 168, 168 F.2d 161, 163, cert. denied, 334 U.S. 853, 68 S.Ct. 1509, 92 L.Ed. 1775 (1948); Lucas v. United States, 70 App.D.C. 92, 93, 104 F.2d 225, 226 (1939). See Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960).

I would affirm the convictions.