U.S. v. Barrientos

• Decision Date: 30 April 1985
• Docket Number: No. 84-1470,84-1470
• Citation: 758 F.2d 1152
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Oscar Donato BARRIENTOS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1152

758 F.2d 1152

UNITED STATES of America, Plaintiff-Appellee, v. Oscar Donato BARRIENTOS, Defendant-Appellant.

No. 84-1470.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 11, 1985.

Decided March 28, 1985.

Rehearing Denied April 30, 1985.

Frances C. Hulin, Asst. U.S. Atty., Danville, Ill., for plaintiff-appellee.

Traci Nally Harris, Meyer, Capel, Hirschfeld, Muncy, Jahn & Aldeen, Champaign, Ill., for defendant-appellant.

Before CUMMINGS, Chief Judge, and BAUER and FLAUM, Circuit Judges.

BAUER, Circuit Judge.

On February 3, 1984, in the Central District of Illinois, defendant Oscar Barrientos and several co-defendants were jointly tried before a jury and Barrientos was found guilty of knowingly and intentionally possessing cocaine with the intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Barrientos appeals his conviction, arguing, inter alia, that the trial court erred in refusing to give a cautionary jury instruction regarding the effect of the midtrial acquittal of a co-defendant on the remaining portions of the case and on the credibility of the witnesses. We agree that the court committed error by failing to give a cautionary instruction regarding the co-defendant's acquittal; that error, however, was not reversible error. We therefore affirm Barrientos's conviction.

I

On September 29, 1983, co-defendants Barrientos, Carl Edwards, Lautaro Suarez and Jon Compton arrived in Danville, Illinois, from Florida and checked in at the Danville Sheraton Inn. The men took separate rooms and in the elevator, on their way to their rooms, a man unknown to Barrientos gave Suarez a brown paper sack. Suarez later showed the sack, which contained cocaine, to Barrientos. Barrientos and two local women, McDaniel and Anderson, ingested cocaine that evening at the motel.

On September 30, 1983, Barrientos, Suarez, and Compton moved to the Danville Quality Inn. Barrientos and Suarez shared room 202 and Compton was in room 122. Suarez placed the large package of cocaine in Barrientos's suitcase. Barrientos asked Suarez for an ounce of cocaine for personal use, received it, and placed the ounce of cocaine in one of his shoes packed in his suitcase. On the evening of September 30, Barrientos went to room 122 and saw Compton, McDaniel, and a woman named Joan Wagle in the room smoking marijuana. Although Barrientos did not know it, Wagle was working with the police. The police called Wagle while she was in room 122 and, explaining that the call was from her babysitter and that she had to leave, Wagle asked for a quick line of cocaine. Barrientos then left room 122, got his ounce of cocaine from room 202, and returned to room 122. While testimony is contradictory as to exactly what happened next, it is clear that Wagle cut a small rock of cocaine supplied by Barrientos, used a rolled bill to snort the cocaine, and then left the motel with the bill in her purse. Wagle then turned the bill over to the police who field-tested it for cocaine and obtained, on the basis of that field test, a warrant to search rooms 122 and 202 of the Quality Inn.

Shortly after 3:00 a.m. on October 1, 1983, four special agents and several uniformed officers entered room 202 with a motel passkey without first announcing their purpose and authority. No noise was emanating from room 202 and the lights were out inside the room. Upon entry, the police identified themselves to Barrientos, who was asleep and nude, and Suarez. After handcuffing Barrientos while he was still in bed, the police put his pants on him and then put him in a chair. Suarez was also handcuffed and placed in another chair. An agent informed Barrientos and Suarez of their Miranda rights. The agent also told them that he and the other agents had a search warrant. When Barrientos asked for a shirt to wear, an investigator looked inside Barrientos's suitcase and discovered the large package of cocaine. The package was displayed to Barrientos, who stated "I guess that's what you're looking for." During this time Barrientos and Suarez conversed in Chilean slang in front of police officers. Barrientos unsuccessfully attempted to introduce into the record evidence that during this conversation Suarez had told Barrientos to say that the cocaine was Barrientos's. The police took Barrientos and Suarez to the Public Safety Building in Danville. Barrientos also unsuccessfully attempted to introduce into evidence testimony that Suarez had advised Barrientos to claim the cocaine was his because Barrientos was going to be charged with possession anyway. Barrientos did claim the cocaine was his in later interrogations by the police at the Public Safety Building.

In February 1984, Barrientos was tried with Suarez, Donald Barber, another member of the conspiracy, Compton, and Edwards, for conspiracy to distribute cocaine, possession of cocaine with intent to distribute and conspiracy to distribute marijuana. During the second week of trial Suarez failed to return to court, in violation of the conditions of his bond. On the first day of his absence the court explained to the jury:

We have reconvened and there is something I want to call your attention to and tell you about. The Defendant Suarez is not present. The Defendant Suarez is absent. The case will go forward nonetheless. You are not to consider the fact of his absence as any evidence in the case as it would regard either him or any party.

Tr. at 705.

At the end of the evidence, but before closing arguments, the court instructed the jury as follows:

You should be advised that the court has given judgment of acquittal and discharged Suarez on Counts I and II. The court has acquitted the Defendant Barrientos on the charge of conspiracy to distribute marijuana in Count III, and has also acquitted the Defendant Barber on the charge of conspiracy to distribute marijuana in Count III.

Tr. at 1585.

Barrientos was the only defendant convicted by the jury. He was found guilty of knowingly and intentionally possessing cocaine with the intent to distribute and sentenced to three years of imprisonment with a special parole term of five years in addition to any parole term that might be imposed under the three year committment. Barrientos now appeals this conviction.

II

Most of the appellate opinions addressing the question of what a jury should be told by the trial judge regarding the sudden midtrial absence of one or several co-defendants in a joint trial involve co-defendants who have pled guilty during the trial. See, e.g., United States v. Anderson, 642 F.2d 281 (9th Cir.1981); United States v. Phillips, 640 F.2d 87 (7th Cir.), cert. denied, 451 U.S. 991, 101 S.Ct. 2331, 68 L.Ed.2d 851 (1981); United States v. White, 589 F.2d 1283 (5th Cir.1979); United States v. Hansen, 544 F.2d 778 (5th Cir.1977); United States v. Beasley, 519 F.2d 233 (5th Cir.1975); United States v. King, 505 F.2d 602 (5th Cir.1974); United States v. Washbaugh, 442 F.2d 1127 (9th Cir.1971); United States v. Harrell, 436 F.2d 606 (5th Cir.1970), cert. denied, 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972); United States v. Jones, 425 F.2d 1048 (9th Cir.), cert. denied, 400 U.S. 823, 91 S.Ct. 44, 27 L.Ed.2d 51 (1970). A few cases involve midtrial acquittals, United States v. McCoy, 539 F.2d 1050 (5th Cir.1976), cert. denied, 431 U.S. 919, 97 S.Ct. 2185, 53 L.Ed.2d 230 (1977); United States v. Campbell, 507 F.2d 955 (9th Cir.1974), and one case involves a government motion to dismiss certain co-defendants. See, e.g., United States v. DeLucca, 630 F.2d 294 (5th Cir.1980), cert. denied, 450 U.S. 983, 101 S.Ct. 1520, 67 L.Ed.2d 819 (1981). Whether his absence depends on a guilty plea, an acquittal or a dismissal makes a difference to the co-defendant who has pled, been acquitted, or dismissed, but to the defendant still on trial, and to the trial judge presiding over the jury trial the result of any of these actions is much the same: a co-defendant has mysteriously disappeared from the jury's sight and his absence may affect, perhaps subconsciously, the jury's assessment of the guilt of the remaining defendant. While a co-defendant's guilt, innocence, or absence should not reflect on the remaining defendant's guilt, "the potential nevertheless exists." United States v. DeLucca, 630 F.2d 294, 298 (5th Cir.1980).

Most courts agree that the jury must be told something regarding the co-defendant's absence to combat this potential denial of a fair trial to the remaining defendant. Some courts have suggested that the preferred method is to tell the jury precisely what happened, for instance, that the defendant has pled guilty, if that is the case. See, e.g., United States v. Beasley, 519 F.2d 233, 239 (5th Cir.1975); United States v. Jones, 425 F.2d 1048, 1054 (9th Cir.1970). Believing that "honesty" is the "fairest procedure," these courts have suggested that giving the reason for the co-defendant's departure will prevent curiosity, conjecture, and uncertainty on the jury's part. Id.

Other courts have suggested, however, that at least where the defendants are closely identified with one another as to the crimes charged, it is better practice to tell the jury simply that the absent co-defendant should not be considered a defendant any longer and that his guilt or innocence should play no part in future deliberations. See, e.g., United States v. Washbaugh, 442 F.2d 1127, 1129 (9th Cir.1971). This court has implied, without specifically holding, that a cautionary instruction which merely informs the jury of the defendant's absence is the preferred method in this circuit for abating a jury's curiosity regarding the fate of a co-defendant. United States v. Phillips, 640 F.2d 87 (7th Cir.1981). In Phillips, a co-defendant pled guilty outside the presence of the jury after his attorney, in the presence of the jury, indicated that his client was reluctant "to go through this particular matter," and after the co-defendant had made some "gestures" to...