U.S. v. Babbitt, s. 82-1011

• Decision Date: 22 July 1982
• Docket Number: 82-1028,Nos. 82-1011,s. 82-1011
• Citation: 683 F.2d 21
• Parties: 11 Fed. R. Evid. Serv. 268 UNITED STATES of America, Appellee, v. Charles BABBITT, Defendant, Appellant. UNITED STATES of America, Appellee, v. Ismael SANTIAGO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 21

683 F.2d 21

11 Fed. R. Evid. Serv. 268

UNITED STATES of America, Appellee, v. Charles BABBITT, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Ismael SANTIAGO, Defendant, Appellant.

Nos. 82-1011, 82-1028.

United States Court of Appeals First Circuit.

Argued June 8, 1982.

Decided July 22, 1982.

Ira L. Schreiber, Providence, R. I., with whom William L. Bernstein, Providence, R. I., was on brief, for defendant, appellant, Charles Babbitt.

Edward C. Clifton, Providence, R. I., with whom Stone, Clifton & Clifton, Providence, R. I., was on brief, for defendant, appellant, Ismael Santiago.

James E. O'Neil, Asst. U. S. Atty., Providence, R. I., with whom Lincoln C. Almond, U. S. Atty., Providence, R. I., was on briefs, for appellee.

Before COFFIN, Chief Judge, ROSENN, Senior Circuit Judge, ^* and BOWNES, Circuit Judge.

COFFIN, Chief Judge.

These two appellants, Babbitt and Santiago, were convicted of possession with intent to distribute, and of distribution of cocaine on March 5, 1981 under count one of the indictment. Appellant Santiago was also convicted under count two of similar offenses occurring on April 2, 1981.

The essential facts are that, after considerable solicitation by an informer at the behest of a Drug Enforcement Agent, Babbitt on March 5, 1981, at his place of business, introduced another DEA agent to Santiago as a likely seller of drugs. Santiago produced a package of cocaine and discussed weight and price with the agent. The sale was consummated for $2300 and the agent, after talking with Babbitt about his services, agreed to give him $100. On March 10, the three men met once again in Babbitt's office where the agent and Santiago negotiated for, but did not then consummate, another cocaine purchase. At this time the agent paid Babbitt the $100 earlier mentioned. Finally, on April 2, the agent met and negotiated briefly with Santiago at a parking lot near Babbitt's place of business, saw Santiago leave and meet Babbitt's car coming out of an alley, whereupon Babbitt entered Santiago's car for a conversation of a minute or two. Subsequently Santiago drove out of sight, returning soon to the parking lot with one Lopez ¹ and a quantity of cocaine. Arrests followed.

Santiago claims two errors: the refusal of the district judge to sever trial of the two counts and a comment by the prosecutor allegedly violating his privilege against self incrimination. Babbitt joins this second claim and adds two other contentions: that the court should have instructed the jury that he was not associated with the events of April 2, and that evidence of his early police record should have been excluded.

The Motion to Sever

Prior to trial Santiago filed a motion under Rule 14 of the Federal Rules of Criminal Procedure, seeking an order that the government elect to proceed under only one count or prosecute them in separate trials. The justification set forth was that there was no connection between counts one and two, other than that Santiago was named in each; that the alleged distributions were made at different times; that there was no allegation of a common scheme; and that the defendant would be prejudiced by the "accumulation of the evidence."

Santiago seems to argue in his brief as if he were making a Rule 8(a) claim of misjoinder of offenses, based on the assumption that the prosecution's justification for charging multiple offenses in an indictment was that the offenses are based on "acts or transactions connected together or constituting parts of a common scheme or plan". Even if we were to say that Santiago had not waived any objection under Rule 8, but see United States v. Barbosa, 666 F.2d 704, 707 (1st Cir., 1981) it is sufficient to point out the additional justification in Rule 8(a) for joinder of offenses, namely that the offenses "are of the same or similar character", as indeed the cocaine transactions of March 5 and April 2 were.

Santiago adds the argument that the counts should not have been tried together because Babbitt's defense, being entrapment ("I did it but I was coerced"), was antagonistic to his ("I deny everything and put the government to its proof"). There are two problems with this argument. In the first place, even if the court had granted the motion to sever and only count one was tried, Santiago would not have solved his problem. He would still have had Babbitt and his entrapment defense to contend with. Secondly, Santiago never made this argument below, either in his Rule 14 motion to sever or at any subsequent time during the trial.

The Prosecutor's Comment

In his closing rebuttal argument the prosecutor, after urging the jury to weigh the evidence free of sympathy or passion said:

"... You make your decision as you know on the facts that are presented before you. While you search out the truth you may wish to ask yourself, 'Who has appeared before me in the form of a witness? ' or 'what argument of counsel has helped me in that search for the truth?' " (emphasis added).

Counsel for appellants immediately requested a bench conference and moved for a mistrial. The court, after vigorously criticizing government counsel, denied the motions, and gave a curative instruction, saying:

"... When you ask yourselves who took the stand as was stated by the prosecutor you just keep in mind the defendant has a right to remain silent and a defendant has a Constitutional right not to take the stand and you will not even discuss that fact in your jury room-that they have failed to take the stand. That is our system of justice. It's their Constitutional right, their Constitutional right. I cannot stress that to you more forcefully. All right, proceed."

Subsequently, Santiago moved for a new trial based on the prosecutor's comment. The court, in a thoughtful memorandum, considered its obligation under United States v. Flannery, 451 F.2d 880 (1st Cir. 1971), and held, first, that the prosecutor's comment did not so clearly point to Santiago's silence at trial as to trigger Flannery, and, second, even if it did, the curative instruction sufficed. In Flannery we dealt with a case where the prosecutor repeatedly characterized the government's evidence as "uncontradicted", noted that this "clearly call(ed) to the jury's mind" defendant's failure to...