The following excerpt is from U.S. v. Gay, 567 F.2d 916 (9th Cir. 1978):
8 See United States v. Echeles, supra, 352 F.2d at 898, wherein the Government contended, inter alia, that the defendant's position in support of his motion to sever indulged in the speculative assumption that the anticipated co-defendant witness would be tried before the defendant. To this argument the court replied: "As for . . . (this) 'assumption' we do not feel it would have been egregious had the trial judge, after granting the motion for separate trial, also directed the Government to proceed first with the case against . . . (the co-defendant witness)." See also United States v. Frazier, supra note 3.
* Counsel apparently confused, as courts sometimes do, the separate Sixth Amendment rights "to be confronted with the witnesses against him" and "to have compulsory process for obtaining witnesses in his favor." See DeLuna v. United States, 308 F.2d 140, 143 (5th Cir. 1962); United States v. Beye, 445 F.2d 1037, 1044, n.8 (9th Cir. 1971) (dissenting opinion).
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