USA. v. Mayfield

• Decision Date: 07 June 1999
• Docket Number: No. 98-50100,98-50100
• Citation: 189 F.3d 895
• Parties: (9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JERRY WAYNE MAYFIELD, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 895

189 F.3d 895 (9th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JERRY WAYNE MAYFIELD, Defendant-Appellant.

No. 98-50100

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 7, 1999--Pasadena, California

Decided August 26, 1999

[Copyrighted Material Omitted]

Michael Tanaka, Deputy Federal Public Defender, Los Angeles, California, for the defendant-appellant.

Orly Degani, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; James M. Ideman, District Judge, Presiding. D.C. No. CR-00269-JMI-01.

Before: Dorothy W. Nelson, Stephen Reinhardt, and Stephen S. Trott, Circuit Judges.

D.W. NELSON, Circuit Judge:

OVERVIEW

Jerry Wayne Mayfield appeals his conviction, after a joint jury trial with codefendant Manyale Gilbert, for possession with intent to distribute cocaine in violation of 21 U.S.C. S 841(a)(1). Mayfield argues that the district court abused its discretion by refusing to sever the trials despite Gilbert's mutually exclusive defense and prejudicial evidence that was improperly elicited by Gilbert's counsel. Although the district court's initial denial of Mayfield's severance motion was understandable, based on pretrial representations made by the government about the evidence that would be admitted, the district court abused its discretion when at trial it gave Gilbert's counsel free rein to introduce evidence against Mayfield and act as a second prosecutor. Gilbert's counsel's trial tactics necessitated severance or some alternative means of mitigating the substantial risk of prejudice. We thus reverse and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

On March 10, 1997, Los Angeles Police and FBI agents executed a search warrant at 2073 E. 102nd Street, Unit 495 in the Jordan Downs Projects in Los Angeles ("the apartment"). The officers surrounded the apartment, knocked, announced their presence, and waited 20 to 50 seconds before forcing their way in. LAPD Detective Brian Agnew entered and proceeded to the kitchen where he found Gilbert sitting in a chair at a table and holding an infant in one arm. Agnew testified that he observed Gilbert moving what appeared to be rock cocaine off a cutting board that was on the table.

LAPD Detective James Jimenez was one of the officers assigned to the rear door. While at the back door, he testified that he looked through a screen door and saw Gilbert and Mayfield sitting at a kitchen table. When Agnew began knocking, Jimenez said he saw Mayfield stand up and leave the apartment through the rear door. LAPD Officer Christian Mrakich also testified that he saw Mayfield come out of the apartment through the rear door.

The police arrested Mayfield outside the back door of the apartment. Officer Mrakich asked Mayfield if he had any keys, and Mayfield responded that he did not. A pat-down search of Mayfield revealed keys that fit the locks to the front and rear security doors of the apartment. The search also revealed $1,929 in cash and a pager.

On the kitchen table inside the apartment, the officers discovered several clear plastic sandwich baggies, some containing pieces of rock cocaine, a razor blade, a triple-beam scale, a cutting board, and a shoe box containing a larger quantity of rock cocaine. Gilbert's fingerprint was found on the scale. Additionally, the officers found in the kitchen a pyrex beaker with a stir stick inside and a four-month-old phone bill addressed to Gilbert at the apartment.

After the police obtained the search warrant, Gilbert was detained and made the following statement, O.K., The guy outside is Jerry Mayfield and he is the main man. I sell for him but you can't tell him or no one. They will kill me for sure. I ain't going to sign nothin [sic]. I don't know where [sic] gets the keys. I know he got a delivery today. I can't tell you no more.

Gilbert and Mayfield were both indicted for one count of possession with the intent to distribute approximately 552.8 grams of cocaine base in violation of 21 U.S.C.S 841(a)(1). They were tried jointly. Before trial, the Government indicated in its exhibit list that it intended to offer this statement of codefendant Gilbert during the joint trial. Mayfield objected to the admission of this hearsay statement, arguing that he could not receive a fair trial because he would not be able to cross-examine the declarant, Gilbert. Mayfield pointed out that if the trials were severed, the statements would only be admissible in his trial if Gilbert testified personally, thus allowing Mayfield the opportunity to cross-examine him. If the court chose to allow the statements, however, Mayfield requested that his name be redacted and that a proper limiting instruction be given.

The district court admitted the statements but agreed that Mayfield's name should be removed and instructed the Government to "clean up" the statements. On direct examination, the Government elicited from the police officer that Gilbert had stated, "that he was helping an individual in the sales of cocaine." On cross-examination, however, Gilbert's attorney questioned the officer further about Gilbert's statements:

Q. Did Mr. Gilbert say -- after further questioning, did Mr. Gilbert say a person was the "main man"?

A. Yes.

Q. Did Mr. Gilbert use the words "main man"?

A. Yes.

Q. Did Mr. Gilbert say, "I sell for him, but you can't tell him or no one. They will kill me for sure"?

A. Yes.

Q. Did Mr. Gilbert indicate to you that he would not sign anything?

A. Yes, he refused to sign -- well, he didn't refuse to sign originally. But in the statement you just read regarding killing him, yes, he refused to sign that.

Q. Did Mr. Gilbert indicate that anybody had gotten a delivery that day?

A. Yes.

Q. Did Mr. Gilbert say that he personally had gotten a delivery that day or that another person had gotten a delivery that day?

A. I believe it was another person, not Mr. Gilbert himself.

Q. Did -- in the portion of the statement,"I sell for him, but you can't tell him or no one. They will kill me for sure," did Mr. Gilbert indicate with any more specificity as to when he sold for the "him"?

A. No.

Q. Did Mr. Gilbert indicate if he had sold for him on one occasion or more than one occasion?

A. No, he did not specify.

Id. at 204-05. The court never gave a limiting instruction telling the jury to consider the statements only as they applied to Gilbert.

The parties also agreed pretrial not to present any evidence concerning the confidential informant upon whose information the search warrant was based. During a hearing, at which Gilbert's attorney was present, the district court clarified to the Government that "[p]robable cause will not be an issue for the jury. The jury shouldn't hear anything about the basis for the search warrant. All the jury will know is that the officers had a search warrant and they had executed it, right?" Yet, at trial, Gilbert's counsel again flouted the district court's pretrial decision and elicited testimony that a "reliable" confidential informant told the police officer that Mayfield was in the apartment when a drug shipment arrived, that Mayfield, but not Gilbert, was listed as a "primary suspect " on the search warrant, but that Gilbert was not listed at all, and that the police officer recognized Mayfield. After Mayfield's counsel objected and moved for a mistrial, the district court gave a limiting instruction that the police officer's testimony should be considered only as it related to the officer's state of mind when he executed the warrant and not for its truth.

Mayfield's attorney made and renewed the motion to sever the trials at least six times before, during, and following the trial. During a hearing regarding the post-trial severance motion, Mayfield's attorney argued that aspects of Gilbert's confession that were brought out at trial by Gilbert's counsel violated his Sixth Amendment Confrontation Clause rights. On October 1, 1997, the jury returned guilty verdicts against both defendants. Mayfield was sentenced to 360 months imprisonment and a ten-year supervised release. Gilbert was sentenced to 240 months imprisonment and a ten-year supervised release.

STANDARD OF REVIEW

A district court's denial of a motion for severance is reviewed for abuse of discretion. See United States v. Heuer, 4 F.3d 723, 733 (9th Cir. 1993). "The test for abuse of discretion by the district court is whether the joint trial was so manifestly prejudicial as to require the trial judge to exercise his discretion in just one way, by ordering a separate trial." United States v. Baker, 10 F.3d 1374, 1387 (9th Cir. 1993) (internal quotations and citations omitted). We have held that severance should be granted when the defendant "shows that the core of the co-defendant's defense is so irreconcilable with the core of his own defense that the acceptance of the codefendant's theory by the jury precludes acquittal of the defendant." United States v. Throckmorton, 87 F.3d 1069, 1072 (9th Cir. 1996).

Alleged violations of the Confrontation Clause are reviewed de novo. See United States v. Yazzie , 59 F.3d 807, 812 (9th Cir. 1995).

I. Mutually Exclusive Defense

Federal Rule of Criminal Procedure 8(b) permits the joinder of defendants who allegedly committed the same crime. Although joinder is generally favored because it promotes efficiency, see United States v. Tootick , 952 F.2d 1080, 1078 (9th Cir. 1991), Rule 14 provides that the trials may be severed when it is apparent that a joint trial would cause prejudice. The Supreme Court has held that "when defendants have been properly joined under Rule 8(b), a district court should grant severance under Rule 14 only if there is serious risk that a joint trial would prejudice a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about...