United States of America, Plaintiff-appellee, v. Rohitesh Prasad, Defendant-appellant, 28 F.3d 110 (9th Cir. 1994)

MEMORANDUM^** 

Appellant Rohitesh Prasad contends that the district court erred by not granting severance. We conclude that the trial court did not abuse its discretion. United States v. Vasquez-Valasco, 15 F.3d 833, 844 (9th Cir. 1994). Prasad has failed to demonstrate clear, manifest or undue prejudice from the joint trial. United States v. Arias-Villanueva, 998 F.2d 1491, 1506 (9th Cir.), cert. denied, 114 S. Ct. 573 (1993). He could have testified or otherwise presented his proffered defense notwithstanding the severance ruling.

Moreover, even assuming antagonistic defenses, there is no per se rule requiring severance. United States v. Tootick, 952 F.2d 1078, 1081 (9th Cir. 1991). Mere hostility between defendants or the desire of one to exculpate himself by inculpating the other does not generate the kind of prejudice that mandates severance. United States v. Sherlock, 962 F.2d 1349, 1363 (9th Cir. 1989), cert. denied, 113 S. Ct. 419 (1992). Prasad has not demonstrated that the jury was unable to assess "the guilt or innocence of the defendants on an individual and independent basis." Buena-Lopez, 987 F.2d at 661.

Prasad also contends on appeal that the district court improperly ruled that his proffered defense was not valid as a matter of law. The record, however, contradicts that contention. Although the trial court did express some concerns regarding the defense, all such comments were made in context of the pending severance motion. The trial court repeatedly made clear that it would not rule on the validity of Prasad's defense unless Prasad actually presented the defense to the jury. Prasad elected not to testify or otherwise present the defense. Accordingly, no ruling was made for us to review.

AFFIRMED.