U.S. v. Cervantes, s. 78-1351

• Decision Date: 07 January 1980
• Docket Number: Nos. 78-1351,78-1352,78-1353 and 78-1354,s. 78-1351
• Citation: 609 F.2d 974
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rose Florence CERVANTES, Manuel Cervantes-Avalos, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 974

609 F.2d 974

UNITED STATES of America, Plaintiff-Appellee, v. Rose Florence CERVANTES, Manuel Cervantes-Avalos Defendants-Appellants.

Nos. 78-1351, 78-1352, 78-1353 and 78-1354.

United States Court of Appeals, Tenth Circuit.

Argued May 17, 1979.

Decided Oct. 19, 1979.

Certiorari Denied Jan. 7, 1980.

See 100 S.Ct. 684.

William C. Danks, Asst. U. S. Atty., Denver, Colo. (Joseph F. Dolan, U. S. Atty., Denver, Colo., on the brief), for plaintiff-appellee.

Daniel J. Sears, Federal Public Defender, Denver, Colo., for Rose Florence Cervantes, defendant-appellant.

T. Kenneth Loughlin, Denver, Colo., Attorney for Manuel Cervantes-Avalos, defendant-appellant.

Before McWILLIAMS, BARRETT and DOYLE, Circuit Judges.

McWILLIAMS, Circuit Judge.

Manuel Cervantes-Avalos and his wife, Rose Florence Cervantes, were jointly indicted, tried and convicted of knowingly making and using four counterfeit immigration documents (Immigration Form I-210), in violation of 18 U.S.C. § 1001. In the same count of the indictment Manuel and Rose were also charged with aiding and abetting in violation of 18 U.S.C. § 2. Both defendants have appealed, and on appeal each is represented by separate counsel, Manuel by appointed counsel, and Rose by the public defender. Finding no reversible error as to either defendant, we affirm.

A government undercover agent testified that he purchased four spurious immigration documents from the defendants for a total purchase price of $295. The agent had posed as an illegal alien who needed the immigration forms in order to avoid detection. Although Rose elected not to testify, it was her theory of the case that she was merely present when her husband, Manuel, sold the documents in question to the undercover agent, and that she did not participate in any manner in any of the several dealings.

Manuel testified in his own behalf and relied on the defense of entrapment. Specifically, Manuel testified that the documents in question had been prepared by a Mr. Diaz, whose whereabouts were unknown, and that Diaz had given him the forms which he (Manuel) later sold to the undercover agent. Manuel strongly suggested that he had been "set up" by this Mr. Diaz, who was trying to break up his marriage to Rose.

In the trial court Manuel and Rose were represented by retained counsel, two attorneys from the same firm, who jointly represented both defendants. Prior to trial the Government attorney first raised the question as to whether there was any possible conflict between Rose and Manuel which would preclude such joint representation. Defense counsel assured the trial court that there was no such conflict. However, shortly before trial, counsel filed an untimely motion on behalf of Rose, seeking first to compel the Government to live up to its alleged agreement to allow Rose to plead guilty to a misdemeanor, or, in the event that such request was not granted, to sever Rose's trial from that of Manuel's. The basis for the severance request was the allegedly antagonistic defenses of Manuel and Rose. The trial court denied this motion, and the propriety of this ruling is probably the principal matter raised on appeal.

The trial court found that although there may have been some discussion between defense counsel and the prosecuting attorney regarding a possible plea of guilty by Rose to a misdemeanor charge, nevertheless no plea bargaining agreement was ever entered into by the parties. This finding certainly cannot be disturbed by us on appeal. The only matter to support the contention that there was an agreement is the bald statement by defense counsel in the trial court. Such was disputed by the prosecuting attorney, who, as indicated, conceded there was some preliminary discussion of a plea bargain, but added that no understanding was ever reached. The present case is far different from Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). In Santobello there Was an agreement; the defendant had in fact pled guilty to a lesser-included offense; and thereafter the prosecution reneged on its promise. Santobello is of no aid to Rose Cervantes.

Counsel alternatively asked, if it be found that there was no plea bargain agreement, that Rose's trial be severed from Manuel's trial. The trial court denied this request, and under the circumstances we find no error in this ruling. This case is not governed by Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In the instant case the undercover agent did testify about a conversation which he had with Manuel in which the latter implicated his wife Rose. However, the statements attributed to Manuel were not part of any post-crime confession, but were utterances made by Manuel during the very commission of the crime for...