U.S. v. Casamayor, s. 85-5602

• Decision Date: 23 February 1988
• Docket Number: Nos. 85-5602,85-5628,s. 85-5602
• Parties: 24 Fed. R. Evid. Serv. 1001 UNITED STATES of America, Plaintiff-Appellee, v. Raymond CASAMAYOR, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Carroll KEY, Carol Hardin, Janet Cates, Michael Cates, Raymond Casamayor, Russell Barker, John R. Roberts, Buford E. Clark, Michael Alan Clark, Aristides M. Brito, Miguel Brito-Williams, Antonio Diaz, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1509

837 F.2d 1509

24 Fed. R. Evid. Serv. 1001

UNITED STATES of America, Plaintiff-Appellee, v. Raymond CASAMAYOR, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Carroll KEY, Carol Hardin, Janet Cates, Michael Cates, Raymond Casamayor, Russell Barker, John R. Roberts, Buford

E. Clark, Michael Alan Clark, Aristides M. Brito, Miguel

Brito-Williams, Antonio Diaz, Defendants-Appellants.

Nos. 85-5602, 85-5628.

United States Court of Appeals, Eleventh Circuit.

Feb. 23, 1988.

Entin, Schwartz, Barbakoff & Schwartz, Stephen A. LeClair, Miami, Fla., for defendant-appellant.

Stanley Marcus, Leon B. Kellner, U.S. Attys., Michael P. Sullivan, Sonia O'Donnell, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Rick S. Cullen, Ft. Lauderdale, Fla., for Carroll Key & Miguel Brito-Williams.

Alvin E. Entin, Entin, Schwartz, Barbakoff & Schwartz, Miami, Fla., for Brito, Carol Hardin, Raymond Casamayor, M. Clark, B. Clark.

Nathan E. Eden, Feldman & Eden, Key West, Fla., Bennie Lazzara, Tampa, Fla., (ct. appt'd), for Russell Barker.

R.H. Bo Hitchcock, Hitchcock & Cunningham, P.A., John F. O'Donnell, O'Donnell & Lazarus, Fort Lauderdale, Fla., for A. Diaz.

Alan S. Ross, Weiner, Robbins, Tunkey & Ross, P.A., Miami, Fla., for J. Cates.

William R. Tunkey, Weiner, Robbins, Tunkey & Ross, P.A., Miami, Fla., for M. Cates.

Appeals from the United States District Court for the Southern District of Florida.

Before RONEY, Chief Judge, VANCE, Circuit Judge, and PITTMAN ^*, Senior District Judge.

PER CURIAM:

This is a RICO case involving jury convictions of three members of the Key West Police Department, and nine co-defendants, who became co-conspirators by supplying cocaine and by protecting cocaine traffickers. On appeal, defendants raised issues concerning: (1) severance; (2) sufficiency of evidence; (3) the Jencks act; (4) evidentiary rulings; (5) jury instructions; (6) jury misconduct; (7) prosecutorial misconduct; and (8) ineffective assistance of counsel. Concluding there was no error in denying a severance, that sufficient evidence supports the convictions, and that the district court committed no reversible error, we affirm.

The superseding indictment upon which defendants were convicted alleged varying degrees of involvement with the Key West Police Department (KWPD), the RICO "enterprise" for purposes of this case. See Racketeer Influenced and Corrupt Organizations, 18 U.S.C.A. Sec. 1961(4). Specifically, the enterprise consisted of Key West Police officers, narcotics traffickers and a Key West attorney.

The defendants were convicted as follows:

A. Raymond Casamayor (the KWPD Chief-of-Detectives):

(1) Racketeering and conspiracy to commit racketeering, in violation of 18 U.S.C.A. Secs. 1962(c), (d), 1963;

(2) Possession and conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C.A. Secs. 841(a)(1), 846;

(3) Bribing a witness, in violation of 18 U.S.C.A. Sec. 201(d); and

(4) Tax evasion and filing false tax returns, in violation of 26 U.S.C.A. Secs. 7201, 7206(1).

B. Carroll Key (the KWPD Sergeant of Detectives) and Russell Barker (the KWPD Lieutenant of Detectives):

(1) Racketeering and conspiracy to commit racketeering, in violation of 18 U.S.C.A. Secs. 1962(c), (d), 1963.

C. Carol Hardin (school bus driver and cocaine buyer/seller):

(1) Conspiracy to commit racketeering, in violation of 18 U.S.C.A. Secs. 1962(d), 1963; and

(2) Conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C.A. Sec. 846.

D. Michael Cates (attorney):

(1) Racketeering and conspiracy to commit racketeering, in violation of 18 U.S.C.A. Secs. 1962(c), (d), 1963; and

(2) Conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C.A. Sec. 846.

E. Janet Cates, Buford Clark, Antonio Diaz, John R. Roberts and Miguel Brito-Williams, a/k/a Mike Brito (cocaine traffickers):

(1) Racketeering and conspiracy to commit racketeering, in violation of 18 U.S.C.A. Secs. 1962(c), (d), 1963; and

(2) Possession and conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C.A. Secs. 841(a)(1), 846.

F. Michael Clark and Aristides M. Brito (cocaine traffickers):

(1) Racketeering and conspiracy to commit racketeering, in violation of 18 U.S.C.A. Secs. 1962(c), (d), 1963;

(2) Possession and conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C.A. Secs. 841(a)(1), 846; and

(3) Bribing a witness, in violation of 18 U.S.C.A. Sec. 201(d).

(1) Severance

The district court acted within its broad discretion in denying defendants' requests for severance of offenses and defendants under Rule 14 of the Federal Rules of Criminal Procedure. See also Fed.R.Crim.P. 8. Defendants have not demonstrated the specific and compelling prejudice which is necessary to warrant relief. See United States v. Rivera, 775 F.2d 1559, 1564 (11th Cir.1985), cert. denied, 475 U.S. 1051, 106 S.Ct. 1275, 89 L.Ed.2d 582 (1986); United States v. Magdaniel-Mora, 746 F.2d 715, 718 (11th Cir.1984).

The major argument of the defendants for severance involved the alleged prejudicial spillover effect from the joinder of co-defendant Casamayor's income tax counts with the RICO and narcotics charges. Approximately half of the evidence presented at the three and one-half month trial related to Casamayor's tax counts. The quantity of evidence, however, does not alone constitute specific and compelling prejudice. See United States v. Walker, 720 F.2d 1527, 1533-34 (11th Cir.1983), cert. denied, 465 U.S. 1108, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984). The tax-related charges were included to show that Casamayor must have received bribes because his income and expenses far exceeded that which he earned in his employment with the Key West Police Department and other legitimate sources. That Casamayor received bribes was an important part of the Government's case. A separate trial on Casamayor's tax counts would have resulted in extensive duplication of evidence. See United States v. Zicree, 605 F.2d 1381, 1386 (5th Cir.1979), modified on other grounds, 609 F.2d 826 (5th Cir.), cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980).

The district court's repeated admonitory instructions that the income tax evidence could only be used against defendant Casamayor enabled the jury to separate the evidence relevant to each defendant and render fair and impartial verdicts. See Zicree, 605 F.2d at 1389. As a practical matter, the jury appears to have meticulously sifted the evidence by acquitting two defendants and by acquitting certain defendants of several counts charged in the indictment.

Detective Russell Barker contends that he should have been granted a severance in order to introduce defendant Aristides M. Brito's testimony at a separate trial. On the eve of the trial, Detective Barker submitted co-defendant Brito's affidavit stating, inter alia, that Brito would testify at a separate trial that he neither conspired with Detective Barker nor paid any protection money to Barker. See Byrd v. Wainwright, 428 F.2d 1017 (5th Cir.1970). The district court concluded, however, that this severance motion and accompanying affidavit were untimely and insufficient to warrant relief. See United States v. Hewes, 729 F.2d 1302, 1320 (11th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985). Such a decision is within the trial court's discretion. United States v. Leichtman, 742 F.2d 598, 605 (11th Cir.1984). In any event, the proffered testimony was cumulative of the testimony of Key and Barker that no bribes were paid to Barker.

Defendant John Roberts has not shown specific and compelling prejudice in the district court's refusal to sever his trial from that of co-defendants Barker and Brito.

Defendant Miguel Brito-Williams contends that he was entitled to a severance from co-defendant, Detective Carroll Key because Key, in pursuing his defense, informed the jury of law enforcement efforts against Brito-Williams. Antagonistic defenses satisfy the compelling prejudice standard if the defenses are irreconcilable and mutually exclusive. United States v. Van Horn, 789 F.2d 1492, 1505 (11th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 190, 93 L.Ed.2d 123 (1986). In this case, the defenses were consistent. Brito-Williams' defense that he never bribed Detective Key dovetailed with Key's defense that he never accepted protection money.

(2) Sufficiency of Evidence

Viewing the evidence adduced in this case and the inferences that may be drawn from it in the light most favorable to the Government, the Court concludes that it was sufficient to allow a reasonable trier of fact to find guilt beyond a reasonable doubt of the defendants who contest sufficiency: Michael Cates, Carroll Key, Buford Clark and Marion Russell Barker. See United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (in banc ), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). Because the sufficiency point is especially difficult in the appeal of a protracted, multiple defendant trial, and the time for oral argument for each defendant is so limited, we have studied carefully each brief and the relevant portions of the record. Although not overwhelming as to certain defendants, there was sufficient testimony to support the guilty verdicts, if believed by the jury. In making this determination, the Court is mindful that it is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt. Id.

(3) The Jencks Act

Casamayor argues that it was error not to declare a mistrial due to the Government's failure to timely produce, pursuant to the Jencks Act, 18 U.S.C.A. Sec. 3500(b), a tape recording in their possession between Government witness Donald Faison and defense witness George Carey immediately upon the completion of Faison's testimony.

On direct...