U.S. v. Luna, s. 77-1288

• Decision Date: 02 October 1978
• Docket Number: Nos. 77-1288,s. 77-1288
• Citation: 585 F.2d 1
• Parties: UNITED STATES of America, Appellee, v. Felix German LUNA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Wilberto LUNA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Hipolito CRUZ, Defendant, Appellant. to 77-1290.
• Court: U.S. Court of Appeals — First Circuit

Page 1

585 F.2d 1

UNITED STATES of America, Appellee, v. Felix German LUNA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Wilberto LUNA, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Hipolito CRUZ, Defendant, Appellant.

Nos. 77-1288 to 77-1290.

United States Court of Appeals First Circuit.

Submitted March 6, 1978.

Decided May 12, 1978.

Certiorari Denied Oct. 2, 1978.

See 99 S.Ct. 160.

Edward M. Altman, Cambridge, Mass., for Felix German Luna, defendant, appellant.

Richard A. Gordon, Brookline, Mass., for Wilberto Luna, defendant, appellant.

Robert Y. Murray and Moulton & Looney, Boston, Mass., on brief, for Hipolito Cruz, defendant, appellant.

James E. O'Neil, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

Hipolito Cruz, Felix Luna, and Wilberto Luna were charged in Count I of an indictment with conspiring to distribute heroin between March 8, 1976 and April 19, 1976. Count II of the indictment accused Cruz and Felix Luna of distributing heroin on March 8, 1976. Wilberto Luna was charged in Count III with distributing heroin on April 19, 1976. After a jury trial Cruz and Felix Luna were found guilty on Counts I and II. Wilberto Luna was acquitted of conspiracy, but found guilty of distribution. All three have appealed.

The primary evidence against the appellants was testimony by government agents and Thomas Lees, a paid informant. They testified that on March 8, 1976 Lees took a federal undercover agent, Albert Duffy, to the Polaroid Company parking lot in Cambridge, where a car with two male Puerto Rican passengers was waiting. Lees introduced Duffy to one of the men, identified at trial as Cruz. When Duffy asked to buy some heroin, Cruz said he would talk it over with "his man Garvey". Cruz returned to the car and engaged in conversation with the other man, identified as Felix Luna, who was conceded to be also known as Garvey. The latter opened the car trunk, took out a paper package, discarded the wrapper, and gave a silver packet to Cruz. He then drove off.

Negotiations between Duffy and Cruz ensued. Cruz said he could obtain any quantity of heroin Duffy wanted, but that he would have to take the matter up with Garvey. Asked how long it would take to get the drugs, Cruz replied that Garvey would need to make a trip to California. Cruz refused to introduce Duffy to Garvey and insisted that any deals be made through Cruz. Using $90.00 of government money, Duffy bought from Cruz three foil packets of what was later certified to be heroin. The transaction was observed by surveillance agents, who corroborated details as Duffy and Lees described them.

On April 19, 1976, Duffy again met the informant Lees and went with him to another Cambridge parking lot. When a brown automobile carrying four Puerto Rican males drove in and stopped, Lees introduced Duffy to one of the passengers, identified at trial as Wilberto Luna, the younger brother of Felix. Luna asked if Duffy wished to purchase some heroin and pulled a clear plastic bag containing a brown substance from under the seat of the car. After some discussion about the weight of the package, Luna added more of what was later analyzed to be heroin to the contents of the bag. Again using government money, Duffy paid Luna $1400. for it.

Duffy and Luna walked from the car to the streetside curb to converse in private. In response to Duffy's question about the origin of the drugs, Luna said the heroin had been chopped from three bricks his brother Garvey had brought from Mexico which he and Garvey stored in their apartment.

Severance

All three appellants moved the district court to sever trial of the conspiracy alleged in Count I of the indictment from trial of Counts II and III. They also sought severance of the substantive offenses from each other. The motions were denied. Only Wilberto Luna and Felix Luna have appealed on this issue. They contend that because the three counts of the indictment alleged crimes occurring on different dates and involving different individuals, they should not have been joined under Fed.R.Crim.P. 8. ¹

Assessment of whether distinct offenses or defendants may be included in the same indictment involves a balancing of the benefit to the government in trying related incidents and individuals together against the prejudice to a defendant of possibly having multiple offenses and participants confused with each other. See King v. United States, 355 F.2d 700, 703 (1st Cir. 1966). The question with regard to the propriety of charging multiple offenses in the same indictment is whether the incidents are of the same character, part of the same transaction, or part of a common scheme. Fed.R.Crim.P. 8(a). Similarly, various defendants may be jointly indicted if they have participated in the same transaction or series of events constituting an offense, Fed.R.Crim.P. 8(b).

A conspiracy count can be a sufficient connecting link between co-defendants and separate substantive offenses to permit their joinder in a single indictment, See id. at 704; United States v. Donoway, 447 F.2d 940, 943 (9th Cir. 1971); Cupo v. United States, 123 U.S.App.D.C. 324, 326, 359 F.2d 990, 992 (1966). While the inclusion of a conspiracy count will not rectify otherwise improper joinder, where the count has been added in good faith, and a factual basis for it exists, joinder is permissible. United States v. Donoway, supra, 447 F.2d at 943. A defendant alleging prosecutorial bad faith in joining multiple counts has the burden of establishing it, See United States v. Blitz, 533 F.2d 1329, 1344 (2d Cir. 1976).

In this case the first count of the indictment alleged a conspiracy lasting from March 8 to April 19, 1976 and involving all three appellants. The second and third counts charged commission of the same substantive offense by alleged co-conspirators at different times within the period charged in Count I. A rational basis for joinder thus appeared on the face of the indictment, See United States v. Donoway, supra, 447 F.2d at 943. Moreover, there is support for joinder in the evidence presented. According to Agent Duffy, Felix Luna, also known as Garvey, was present and gave Cruz the heroin Duffy purchased on March 8. Wilberto Luna's admission to Agent Duffy referred to Felix Luna, his older brother, as the source of the heroin sold on April 19. Finally, appellants have not pointed to any evidence that the prosecutor had an impermissible motive in joining the three counts of the indictment, See United States v. Blitz, supra, 533 F.2d at 1344. Although the jury subsequently acquitted Wilberto Luna on the conspiracy count, we do not think that proves the impropriety of having joined the offenses and accused individuals in the same indictment, See Schaffer v. United States, 362 U.S. 511, 516, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960); United States v. Donoway, supra, 447 F.2d at 943.

Where there has been proper joinder, a defendant may nonetheless seek severance of offenses or co-defendants pursuant to Fed.R.Crim.P. 14. ² To prevail he must make a "strong showing of prejudice" likely to result from a joint trial, Sagansky v. United States, 358 F.2d 195, 199 (1st Cir. 1963). Severance motions are addressed to the discretion of the trial judge, and their denial will be reviewed only for abuse, United States v. Smolar, 557 F.2d 13, 21 (1st Cir. 1977).

There was no abuse of discretion here. Ordinarily, alleged co-conspirators and the substantive offenses they purportedly conspired to commit may be tried together, See United States v. Edwards, 488 F.2d 1154, 1160 (5th Cir. 1974). Neither the number of counts nor the number of defendants was so large as to give rise to concern that the jury could not differentiate among them. See Gorin v. United States, 313 F.2d 641, 646 (1st Cir. 1963). The government's case on each count and each defendant was clear, distinct, and of equal strength, preventing confusion or overlap, See United States v. Martinez, 479 F.2d 824, 828 (1st Cir. 1973). Appellants did not assert inconsistent defenses, which would possibly have required the jury to believe one accused at the expense of another, See id. All three denied participation in the crimes and gave alibis that in no way infringed on the testimony of the others.

Throughout the trial the district court took scrupulous care to ensure that the jury distinguished among the defendants and the charges, See United States v. Smolar, supra, 557 F.2d at 21. Several times it instructed the jury that Cruz' admissions to Duffy were to be considered only against Cruz and Felix Luna, and similarly that Wilberto Luna's statements were not evidence against Felix or Cruz, See Gorin v. United States, supra, 313 F.2d at 646. In its final charge the court directed the jury to focus on the evidence against each defendant separately, and charged that unless the jury first found that each defendant committed the substantive offense of which he was accused, they could not consider the conspiracy count, See United States v. Clayton, 450 F.2d 16, 19 (1st Cir. 1971). It is clear that the jury understood their task, for they found Wilberto Luna not guilty of the conspiracy. We find no impermissible prejudice to appellants in a joint trial.

Chain of Custody

Hipolito Cruz and Felix Luna challenge the admission of the heroin Agent Duffy purchased from Cruz on March 8 on the ground that the government could not account for custody of it at all times between the sale and the offer of the evidence at trial. Testimony showed that after the purchase, Duffy went to the Lechmere Sales parking lot, where, in the presence of state police officer Gosby, he performed a field test on the substance and determined it was an opium derivative. Duffy then dated and initialed the packets and turned them over to Gosby. When he returned to...