U.S. v. Castillo-Valencia

• Decision Date: 20 November 1990
• Docket Number: CASTILLO-VALENCIA,No. 89-5712,89-5712
• Citation: 917 F.2d 494
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesus, and Jose Pulido-Gomez, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 494

917 F.2d 494

UNITED STATES of America, Plaintiff-Appellee, v. Jesus CASTILLO-VALENCIA, and Jose Pulido-Gomez, Defendants-Appellants.

No. 89-5712.

United States Court of Appeals, Eleventh Circuit.

Nov. 20, 1990.

Leighton G. Morse, Law Office of Leighton G. Morse, P.A., Miami, Fla., for Jesus Castillo-Valencia.

Reemberto Diaz, Diaz & Batista, P.A., Hialeah, Fla., for Jose Pulido-Gomez.

Linda Collins Hertz and Anne R. Schultz, Asst. U.S. Attys., Miami, Fla., Terrence Thompson, Asst. U.S. Atty., Fort Lauderdale, Fla., for plaintiff-appellee.

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

Before FAY and JOHNSON, Circuit Judges, and ALLGOOD ^*, Senior District Judge.

FAY, Circuit Judge:

Defendant-appellants Jesus Castillo-Valencia and Jose Pulido-Gomez appeal their convictions in district court for conspiracy to possess marijuana with intent to distribute and for possession of marijuana with intent to distribute. Both appellants maintain that the district court erred in its refusal to grant a severance of their trials from the trial of eight other defendants charged in the same conspiracy. Because we find that the joint trial of all ten co-defendants did not subject the appellants to compelling prejudice, we AFFIRM the district court's denial of their motion for severance. In addition, appellant Pulido-Gomez also appeals the district court's application of the United States Sentencing Guidelines in determining his sentence. For the reasons that follow, we AFFIRM the decision of the district court not to grant appellant Pulido-Gomez a two point reduction in his sentence level for acceptance of responsibility under section 3E1.1 of the Guidelines. Next, we AFFIRM the district court's two point increase in the sentencing level of Pulido-Gomez for his managerial role in the offense, under section 3B1.1 of the Sentencing Guidelines. Finally, we AFFIRM the three point increase in the sentencing level of Pulido-Gomez for obstruction of justice, under section 3C1.1 of the Sentencing Guidelines.

Procedural History

Appellants Castillo-Valencia and Pulido-Gomez were indicted along with eight others on two federal counts, charging them with conspiracy to possess marijuana with intent to distribute and with possession of marijuana with intent to distribute. Appellants' initial motion for a severance was denied by the district court without prejudice, and they were tried with eight co-defendants before a jury. Again following opening statements, at the close of the government's case, and at the close of all the evidence, appellants moved for severance, alleging the existence of antagonistic defenses. The district court denied each of these motions for severance. After a four day trial, the jury found appellants guilty on both counts. A mistrial was declared for the eight co-defendants after the jury failed to reach a verdict for each of them. Following the verdict, appellant Pulido-Gomez made a motion for a new trial, which the district court denied. Both appellants are currently incarcerated.

Factual History

The United States Coast Guard ship, "USS Petrel," on patrol off of the Florida Keys, encountered the ship "Carolina" approximately thirteen miles off of the coast of Cuba, after responding to a report of an unidentified vessel at that location. On board the Carolina, whose point of origin was Colombia, were appellants Pulido-Gomez and Castillo-Valencia, in addition to eight other defendants. Evidence at trial established that Castillo-Valencia was the captain of the Carolina, and that Pulido-Gomez served as the ship's first mate.

When the Petrel approached the Carolina, which lay dead in the water, the Carolina started its engines and began to move away. Despite repeated attempts by the Coast Guard to communicate with the Carolina in both Spanish and English and using both radio and bullhorn, the Carolina failed to respond and continued on its course. When the Petrel moved closer to the Carolina, using its blue law enforcement lights and its bullhorn to attract the ship's attention, the Carolina still did not respond. At some point in the encounter, Appellant Pulido-Gomez allegedly emerged from the Carolina's pilothouse and motioned for the Petrel to move away.

The Petrel eventually moved parallel to the Carolina, continuously requesting the Carolina to stop. On two occasions, the Carolina increased speed and turned to the right in an attempt to ram the Petrel. After each attempt, the commander of the Petrel ordered a warning burst from the Petrel's M-60 machine gun fired across the bow of the Carolina. After the second firing, Appellant Castillo-Valencia emerged from the pilothouse of the Carolina to indicate he was stopping. The Coast Guard then obtained consent to board the Carolina, and a subsequent search revealed 495 bales of marijuana stored in the ship's cargo hold. As a result the Carolina and its illicit cargo were seized, and all ten defendants were arrested.

At a joint trial of all ten defendants, three of the appellants' co-defendants testified, presenting a factual picture which served to set the captain and first mate apart from the remainder of the Carolina's crew with respect to their roles in the conspiracy. The three co-defendants testified that they had been hired only to assist in a salvage operation aboard the Carolina and had no knowledge of the marijuana on board until three days into their voyage. They alleged that the Carolina's machinist first discovered the marijuana when he opened a hatch to air out the engine room. The machinist then alerted the other crew members, who resolved that they should either return to Colombia or dump the marijuana overboard. When the crew approached the appellants to request that they return to Colombia or dump the marijuana the appellants refused to do either. The appellants informed the crew that they could dump the marijuana overboard if they wished, but that they would then have to face the consequences upon their return to Colombia. While the appellants never personally threatened the crew members, the members of the crew who testified expressed a general fear of what might happen to them in light of the appellants' warnings. Afraid for their own lives and for the lives of their family members in Colombia, the crew testified that it was forced to allow the marijuana to remain on board the ship.

Denial of the motion for severance

The general rule in this circuit is that defendants who are jointly indicted should be tried together, and this rule has been held to be particularly applicable to conspiracy cases. United States v. Alvarez, 755 F.2d 830, 857 (11th Cir.1985), cert. denied 474 U.S. 905, 106 S.Ct. 274, 88 L.Ed.2d 235 (1985) and 482 U.S. 908, 107 S.Ct. 2489, 96 L.Ed.2d 380 (1987) (citations omitted). A district court's refusal to grant a motion for severance will only be reviewed for an abuse of discretion. United States v. Puig, 810 F.2d 1085, 1088 (11th Cir.1987). Thus, appellate courts have indicated a reluctance to second guess a district court's decision to deny a severance motion. United States v. Gonzalez, 804 F.2d 691, 694 (11th Cir.1986).

The district court must, in applying Federal Rule of Criminal Procedure 14, ¹ balance the right of the defendants to a fair trial against the interests of judicial economy and efficiency. United States v. Gonzalez, 804 F.2d at 694; United States v. Alvarez, 755 F.2d at 857. In order to show that the district court abused its discretion in denying a severance, the defendant must show that without severance he suffered compelling prejudice and was therefore unable to receive a fair trial. United States v. Puig, 810 F.2d at 1088. Thus, in order to compel severance, the defenses of co-defendants must be more than merely antagonistic. United States v. Berkowitz, 662 F.2d 1127, 1133 (5th Cir., Unit B 1981) (citations omitted). ² The defenses of co-defendants must be antagonistic to the point of being mutually exclusive. Id. In other words, "if the jury, in order to believe the core of testimony offered on behalf of [a] defendant, must necessarily disbelieve the testimony offered on behalf of his co-defendant," then the defenses of the co-defendants have reached a level of antagonism that compels severance. Id. at 1134.

This requirement that the defenses of co-defendants be so antagonistic as to be mutually exclusive has been recently set forth in a four-step analysis which we must follow in reviewing a district court's denial of a motion for severance. The analysis asks:

(1) Do the alleged conflicts with co-defendants' defenses go to the essence of the appellant's defense?

(2) Could the jury reasonably construct a sequence of events that accommodates the essence of both defendants' defenses?

(3) Did the conflict subject the appellant to compelling prejudice?

(4) Could the trial judge ameliorate the prejudice?

Smith v. Kelso, 863 F.2d 1564, 1568 (11th Cir.1989), cert. denied, --- U.S. ----, 109 S.Ct. 2079, 104 L.Ed.2d 644 (1989). Applying this analysis to the facts here, we find that the district court's denial of the appellants' motion for severance was proper.

This case presents a difficult set of facts which at first glance appears to require severance of the appellants' trial from the trial of their eight co-defendants. In advancing their own defenses of coercion, the three co-defendants who testified at trial essentially became the government's best witnesses against the appellants Castillo- Valencia and Pulido-Gomez. ³ When the facts here are analyzed under the requirement that the appellants suffer prejudice from the denial of severance, however, it becomes clear that no prejudice resulted. For this reason, severance was properly denied.

At the outset we recognize that any time a defendant pleads not guilty and proceeds to trial, the defense of a co-defendant which implicates that defendant will be antagonistic to the plea of not guilty. This...