Unpublished Disposition, 848 F.2d 1243 (9th Cir. 1988)

Norman Matthews appeals his conviction, following a jury trial, for assault with intent to commit murder, in violation of 18 U.S.C. § 113 (1982), and possession of a weapon by a federal prisoner, in violation of 18 U.S.C.A. Sec. 1791(a) (2) (West Supp.1988). Matthews contends that the district court erred in permitting the joinder of the assault and possession counts in the same indictment and in denying his motion to sever the two counts. We affirm.

The district court did not err in permitting the assault and possession counts to be joined. The two offenses were part of a common scheme or plan. See Fed. R. Crim. P. 8(a); United States v. Friedman, 445 F.2d 1076, 1082 (9th Cir.), cert. denied, 404 U.S. 958 (1971). Nor did the district court abuse its discretion in denying Matthews' motion to sever. He did not make a sufficient showing of prejudice resulting from joinder of the two counts. See Fed. R. Crim. P. 14; United States v. Dicesare, 765 F.2d 890, 898 (9th Cir. 1985); United States v. Bronco, 597 F.2d 1300, 1303 (9th Cir. 1979).

Joinder is the rule rather than the exception. Thus, the party seeking severance bears a burden on appeal "to show that joinder was so manifestly prejudicial that it outweighed the dominant concern with judicial economy and compelled exercise of the court's discretion to sever." United States v. Armstrong, 621 F.2d 951, 954 (9th Cir. 1980). See also United States v. Burgess, 791 F.2d 676, 678 (9th Cir. 1986). The prejudice must be of such magnitude that the defendant's right to a fair trial is abridged. United States v. Lewis, 787 F.2d 1318, 1321 (9th Cir. 1986). Where the defendant's argument for severance is based on his desire to testify about less than all of the charges, he " 'must show that he has important testimony to give on some counts and a strong need to refrain from testifying on those he wants severed.' " Dicesare, 765 F.2d at 898 (quoting United States v. Nolan, 700 F.2d 479, 483 (9th Cir.), cert. denied, 462 U.S. 1123 (1983)). Further, he must show the "specific reasons for not testifying about [the] others." Id. (quoting Bronco, 597 F.2d at 1303).

In his motion to sever, Matthews argued that he would be prejudiced by the joinder because he desired to testify on count three, the weapons charge, but did not wish to testify on count one, the assault charge. He asserted that he was the only witness who could testify as to certain facts concerning the weapons charge. Furthermore, Matthews contends that if he testified on count three, he would expose himself to impeachment by evidence of prior crimes, including three prior prison homicides.

The evidence of his prior crimes could prejudicially affect the jury's consideration of the assault charge, he says, because the government's evidence on that count is relatively weak. In making this argument, Matthews relies on Lewis, 787 F.2d at 1321-22 (when joinder allows admission of prior crimes evidence that would not be independently admissible in separate trial on some counts, there is a high risk of prejudice supporting a presumption of severance). Matthews, however, failed to show in his motion specifically what testimony he would present as to count three and why that testimony would be important. The district court did not abuse its discretion in denying Matthew's motion to sever. See Dicesare, 765 F.2d at 898; Bronco, 597 F.2d at 1303.

AFFIRMED.