U.S. v. Bronco

• Decision Date: 01 June 1979
• Docket Number: No. 78-1473,78-1473
• Citation: 597 F.2d 1300
• Parties: 5 Fed. R. Evid. Serv. 79 UNITED STATES of America, Plaintiff-Appellee, v. Johnny BRONCO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1300

597 F.2d 1300

5 Fed. R. Evid. Serv. 79

UNITED STATES of America, Plaintiff-Appellee, v. Johnny BRONCO, Defendant-Appellant.

No. 78-1473.

United States Court of Appeals Ninth Circuit.

June 1, 1979.

Donald B. Marks of Marks & Brooklier, Beverly Hills, Cal., for defendant-appellant.

Rodney M. Perlman, Sp. Atty., Los Angeles Strike Force Organized Crime etc., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before ELY and TRASK, Circuit Judges, and SOLOMON, ^* District Judge.

SOLOMON, District Judge.

Johnny Bronco, appellant, was found guilty of three counterfeiting charges: conspiracy, possession and passing counterfeit money. These charges resulted from two independent sets of events. Bronco contends that the District Court erred when it denied his motion to sever the trial of the charge based on one set of events from the trial of the charges based on the other set of events. We agree.

Bronco was indicted for conspiracy to sell $3,000,000 in counterfeit money from July to September 1975. In the two other counts he was charged with possession of a counterfeit $100 bill on November 20, 1975 and with passing that bill with the intent to defraud.

Bronco moved to sever the conspiracy count from the other two counts before trial. The District Court denied Bronco's motion after the government represented that it would prove that the sample counterfeit bills used in the conspiracy and the $100 bill passed in November came from the same manufacturer.

On the day before trial, the United States Attorney conceded that the government would not be able to prove that the bills came from the same source. Bronco renewed his motion to sever and later he raised the severance question in his motion for a judgment of acquittal. After the jury found him guilty on all three counts, Bronco raised it again in his motion for a new trial.

Bronco first contends that the initial joinder of these two offenses was improper. We disagree. All three offenses are counterfeiting offenses and therefore similar. Rule 8(a) of the Federal Rules of Criminal Procedure specifically authorizes the initial joinder of offenses of a "similar character".

Bronco next contends that the District Court abused its discretion when it denied his motion to sever under Rule 14 of the Federal Rules of Criminal Procedure. Rule 14 provides that, "(i)f it appears that a defendant . . . is prejudiced by a joinder of offenses . . . the court may order . . . separate trials."

A denial of a motion to sever is reversible error only when a defendant demonstrated in the trial court that a joint trial would be "manifestly prejudicial". United States v. Brashier, 548 F.2d 1315, 1323-24 (9th Cir. 1976), Cert. denied, 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 565 (1977).

Bronco, in the District Court, argued that a joint trial would prejudice him because the same jury would hear the evidence of all crimes and he would not be able to testify about one set of events without being cross-examined about the other. He also argued that little or no overlap in proof would be avoided by a joint trial.

Here Bronco was connected with the conspiracy only by the testimony of the two co-conspirators, Nicholson and DiRodio, neither of whom was particularly credible.

Nicholson testified that Bronco introduced him to Matteo and that they discussed the sale of counterfeit money. Nicholson said Bronco asked him and Matteo to meet with Joaquin, the potential buyer. Nicholson and Matteo met with Joaquin. They showed Joaquin some sample bills and agreed to sell him $3,000,000 in counterfeit bills.

Nicholson also testified that Bronco later met him, told him that Joaquin was working with the police, assaulted him, and called off the sale.

Nicholson's testimony contradicted several sworn statements he made before trial.

The other co-conspirator, DiRodio, testified that he put Bronco in touch with Nicholson.

Both DiRodio and Nicholson pleaded guilty to a separate conspiracy to transport stolen securities. In addition, Nicholson pleaded guilty to this aborted counterfeiting conspiracy.

Matteo, who was called by the defense, testified that neither he nor DiRodio had $3,000,000 in counterfeit money and that they were setting Joaquin up to steal his money. Matteo also testified that Bronco was not involved.

The court permitted the government, on cross-examination, to attempt to show that Bronco is a violent man and that Matteo is afraid of him.

The jury had to choose between the testimony of these unconvincing witnesses.

On the other charges, the government introduced evidence to show that Bronco passed a counterfeit $100 bill on November 20, 1975. Migliorino testified that on that date they went to dinner at the Westlake Inn and that Bronco paid the check. On cross-examination, he admitted that he was not sure of the date. A waitress testified that, on November 20, she served Migliorino and a man who looked like Bronco, and that the check was paid with a $100 bill. There was also testimony that only one $100 bill was deposited that night and it was counterfeit.

The only...