U.S. v. Luciano Pacheco, s. 85-1349

• Decision Date: 06 February 1986
• Docket Number: Nos. 85-1349,85-1469,s. 85-1349
• Citation: 794 F.2d 7
• Parties: UNITED STATES of America, Plaintiff, Appellee, v. Jose Angel LUCIANO PACHECO, Defendant, Appellant. UNITED STATES of America, Plaintiff, Appellee, v. Anthony John AUGUSTINE, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 7

794 F.2d 7

UNITED STATES of America, Plaintiff, Appellee, v. Jose Angel LUCIANO PACHECO, Defendant, Appellant.

UNITED STATES of America, Plaintiff, Appellee, v. Anthony John AUGUSTINE, Defendant, Appellant.

Nos. 85-1349, 85-1469.

United States Court of Appeals First Circuit.

Argued Feb. 6, 1986 in No. 85-1349.

Argued May 8, 1986 in No. 85-1469.

Decided June 20, 1986.

Harry R. Segarra-Arroyo, Santurce, P.R., for appellant Jose Angel Luciano Pacheco.

James A. Toro, San Juan, P.R., for appellant Anthony John Augustine.

Antonio R. Bazan, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., was on brief, for appellee.

Before CAMPBELL, Chief Judge, BREYER and TORRUELLA, Circuit Judges.

TORRUELLA, Circuit Judge.

These consolidated appeals of Jose Angel Luciano-Pacheco ("Luciano") and Anthony John Augustine ("Augustine") arise from the conviction of each for aiding and abetting in the willful possession with intent to distribute 9,724 pounds of marijuana, a Schedule I controlled substance. See 18 U.S.C. Sec. 2; 21 U.S.C. 955a(a), (b) & (f). Appellants' convictions followed from their arrest, along with five other defendants, on the stateless 55-foot vessel CAREY, which was boarded by the Coast Guard 200 miles northwest of Puerto Rico. ¹

On appeal, both Luciano and Augustine argue that their motions for severance were improperly denied. See Fed.R.Crim.P. 14. Luciano separately argues that his motion for acquittal, filed pursuant to Fed.R.Crim.P. 29 and challenging the sufficiency of the government's evidence, was improperly denied. For the reasons stated below, we reject the arguments of appellants and affirm the district court's rulings both as to severance and the sufficiency of the government's evidence.

I. Severance

Both appellants, Luciano and Augustine, moved for severance of their joint trial from that of co-defendant Idelfonso Cortes-Rosales ("Cortes") under Fed.R.Crim.P. 14. Appellants argued that Cortes' testimony would be to the effect that Luciano and Augustine jointly "captained" the CAREY, which was directly in conflict with appellants' proposed defense that they were mere "innocent bystanders" along for the ride. The district judge denied the motion in an opinion dated April 15, 1985, noting that antagonistic defenses do not per se require severance, United States v. Davis, 623 F.2d 188, 194 (1st Cir.1980), and that the conflict between Cortes' and appellants' testimony amounted to mere "tattling and fingerpointing." United States v. Arruda, 715 F.2d 671, 679 (1st Cir.1983). The district judge therefore concluded that the situation was not one where " 'the conflict is so prejudicial and the defenses are so irreconciliable that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.' " United States v. Bautista, 731 F.2d 97, 100 (1st Cir.1984) (citing United States v. Talavera, 668 F.2d 625, 630 (1st Cir.1982) ).

On appeal, appellants point out that Cortes' testimony did portray them as masters of the ship, and again argue that this testimony, antagonistic to appellants' innocent bystander defense, generated sufficient prejudice so as to require us to reverse. We disagree.

It is well-settled in this circuit that the grant or denial of a Rule 14 motion is within the sound discretion of the trial court, and will only be reversed for an abuse of discretion. United States v. Palow, 777 F.2d 52, 55 (1st Cir.1985); United States v. Bautista, supra at 99-100; United States v. Arruda, supra at 679. Moreover, in order to demonstrate that a denial of a severance motion constitutes an abuse of discretion, "a party must make a strong showing of prejudice." Bautista, supra at 100; Arruda, supra; United States v. Lochan, 674 F.2d 960, 967 (1st Cir.1982). We see no such prejudice for three reasons.

First, appellants are wrong in arguing that co-defendant Cortes was the government's best witness against them, and that it was on Cortes' testimony that guilt or innocence turned. See United States v. Johnson, 478 F.2d 1129 (5th Cir.1973). As we noted in Palow, supra at 55 n. 1, Johnson is distinguishable where, as here, appellants' presence at the scene of the crime is undisputed. More importantly, Johnson is distinguishable because Cortes was not the government's best witness, or evidence, against appellants. Rather, Cortes' testimony was cumulative evidence of guilt not necessary for, or determinative of, the convictions below.

The government offered evidence below that Luciano and Augustine had travelled together on a flight from Miami to Colombia and then once again northbound on the CAREY. Appellants testified at trial that their joint travels were pure coincidence; however, the jury could easily have drawn the inference of purposeful collaboration between prime movers in the venture. Most importantly, the government offered evidence of the circumstances of the seizure--i.e., a 55-foot vessel, carrying a larger than normal crew and 9,724 pounds of readily accessible marijuana on a nonstop voyage of eight or nine days. Thus, because it is well-established that this latter circumstantial evidence alone suffices to support a conviction for aiding and abetting, see United States v. Beltran, 761 F.2d 1, 6 (1st Cir.1985); United States v. Lopez, 709 F.2d 742, 746-747 (1st Cir.), cert. denied, 464 U.S. 861, 104 S.Ct. 187, 78 L.Ed.2d 166 (1983); United States v. Smith, 680 F.2d 255, 260 (1st Cir.1982), cert. denied, 459 U.S. 1110, 103 S.Ct. 738, 74 L.Ed.2d 960 (1983), Cortes' testimony cannot be said to have been outcome-determinative. ² In short, the statements by co-defendant Cortes were at best cumulative of the government's case against appellants, and "[c]umulative evidence [of guilt] in the form of a co-defendant's testimony does not amount to prejudice justifying severance." United States v. Palow, 777 F.2d 52, 55 (1st Cir.1985).

Second, we reject appellants' contention that even if Cortes' testimony was cumulative, it was so antagonistic as to generate a conflict which alone demonstrated that appellants were guilty. The conflict between appellants' and Cortes' testimony is undisputed. It had to do with who was the master of the ship and who was not. Thus, because Cortes was acquitted and appellants were convicted, appellants argue that the conflict in the testimony caused the jury "to believe one defendant at the expense of the other" such that "the conflict alone establishe[d] the guilt of [appellants]." Arruda, supra at 679.

We again disagree. The case on which appellants rely, Arruda, makes clear that "fingerpointing and tattling" do not suffice to justify severance. Id. Moreover, the quoted passage from Arruda specifically refers to United States v. Talavera, 668 F.2d 625, 630 (1st Cir.1982), where we reiterated the principle that " 'antagonistic defenses do not per se require severance, even if the defendants are hostile or attempt to cast the blame on each other.' " Id. (citing United States v. Becker, 585 F.2d 703, 707 (4th Cir.1978), cert. denied, 439 U.S. 1080, 99 S.Ct. 862, 59 L.Ed.2d 50 (1979) ). Thus, since the need to believe one defendant over another will always occur in the face of antagonistic or fingerpointing defenses, this requisite credibility determination cannot be, and is not, the decisive factor. Rather, the need for severance turns on the degree of conflict, and the extent to which the antagonism goes beyond mere fingerpointing into the realm of fundamental disagreement over core and basic facts. See United States v. Fusaro, 708 F.2d 17, 25 (1st Cir.1983) (severance requires disagreement over the basic facts, the "who, what, when and where").

Applying the above standard, and with recognition that line-drawing in this area is especially difficult, we note that the essence of appellants' and Cortes' defense was arguably similar, since all three contended they were innocent passengers recruited by an anonymous Colombian. Moreover, the jury could have believed both Cortes and appellants, found that none of the three was the captain, and presumed the remaining Colombian nationals to have been the only knowing malefactors. Thus, we do not regard the differences between appellants and Cortes over who "captained" the CAREY as generating sufficient conflict and prejudice to warrant a severance. See, e.g., United States v. Sheikh, 654 F.2d 1057, 1065 (5th Cir.1981) (insufficient showing of prejudice where appellant and co-defendant both contend they had no knowledge of presence of heroin in display case, but each claimed the other was the owner of the case). Finally, we stress the appropriateness of our conclusion given that Cortes' testimony was cumulative of the government's case and not at all necessary for the jury to find appellants guilty. Thus, because Cortes' testimony was not outcome-determinative, we are reluctant to find the conflict generated by it to be "so prejudicial ... that the jury will unjustifiably infer that this conflict alone demonstrates that [appellants] are guilty," United States v. Bautista, supra (emphasis supplied).

Third and finally, we note that our conclusion is supported by the fact that the trial judge gave a cautionary instruction both immediately after Cortes' testimony and prior to dismissing the jury for deliberation. Moreover, counsel for each appellant was able to cross-examine Cortes thoroughly. These factors, we have previously noted, serve to minimize the prejudice below and are relevant to our considerations on appeal. See United States v. Palow, supra at 55.

Thus, because we find the antagonistic testimony of co-defendant Cortes to be of a cumulative and not outcome-determinative nature, and because we therefore conclude that the conflict generated was not so fundamental that it alone would dictate appellants' guilt, we reject appellants' contention that the district court abused its discretion in denying the motions for severance below.

II. Sufficiency of...