U.S. v. Chavez

• Decision Date: 16 October 2009
• Docket Number: No. 08-13382.,No. 08-12638.,08-12638.,08-13382.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rogelio Galvan CHAVEZ, a.k.a. Julio, a.k.a. Pelon, Antioco Cabrera Esquivel, a.k.a. Rolando Antioco Cabrera-Esquivel, etc., et al., Defendants-Appellants. United States of America, Plaintiff-Appellee, v. Jesus Rodriguez Orosco, a.k.a. "Piche", a.k.a. Jesus Reyes, etc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

584 F.3d 1354

UNITED STATES of America, Plaintiff-Appellee, v. Rogelio Galvan CHAVEZ, a.k.a. Julio, a.k.a. Pelon, Antioco Cabrera Esquivel, a.k.a. Rolando Antioco Cabrera-Esquivel, etc., et al., Defendants-Appellants.

United States of America, Plaintiff-Appellee, v. Jesus Rodriguez Orosco, a.k.a. "Piche", a.k.a. Jesus Reyes, etc., Defendant-Appellant.

No. 08-12638.

No. 08-13382.

United States Court of Appeals, Eleventh Circuit.

October 16, 2009.

Daryl G. LeCroy, Atlanta, GA, Spiro T. Kypreos and Donald M. Sheehan (Court-Appointed), Pensacola, FL, for Defendants-Appellants in 08-12638.

Stephen E. Sutherland (Court-Appointed), Stephen E. Sutherland, P.A., Pensacola, FL, for Orosco.

Robert G. Davies, Pensacola, FL, E. Bryan Wilson, U.S. Atty., Tallahassee, FL, for U.S.

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

Before EDMONSON and BIRCH, Circuit Judges, and HODGES,^* District Judge.

HODGES, District Judge:

This case involved an unusual trial. So unusual, according to Rogelio Galvan Chavez, that the district court's refusal to grant his motion for a severance denied his right to a fair trial. He also challenges the refusal of the district court to grant a mistrial, the sufficiency of the evidence as to his guilt, and the reasonableness of his sentence. The other Appellants do not raise any issues concerning their guilt, but appeal their sentences. After careful review, we affirm the district court in all respects.¹

The Indictment and Pretrial Proceedings

The indictment contained nineteen counts and joined nine defendants, only four of whom proceeded to trial and now appeal.² The central offense was charged in Count One which alleged that each of the four Appellants, from January 1, 2004, through December 3, 2007, conspired to possess with intent to distribute, and to distribute, five kilos or more of cocaine and five hundred grams or more of methamphetamine in violation of 21 U.S.C. § 846.³

Galvan Chavez entered pleas of not guilty with respect to all of the counts in which he was charged. The other four Appellants announced to the district court that each of them wished to plead guilty to all of the counts in which they were named, reserving the right to have a bench trial requiring proof beyond a reasonable doubt concerning the quantities of contraband to be attributable to them, respectively, in the drug conspiracy alleged in Count One. Under Fed. Rule of Criminal Procedure 23(a), however, the proffered waivers of trial by jury required the Government's consent as well as the approval of the Court; and the Government, not wanting to try the matter twice, withheld its consent unless the entire case was heard at the same time by the jury (as to Galvan Chavez) and by the Court (as to the other three Appellants). In the interest of judicial economy, therefore, the district court, after full consultation with all counsel, resolved to proceed in that manner. A pretrial order was entered containing the following provision:

Each of the defendants and his counsel will be present for all phases of the trial, including jury selection. The court will instruct the jury that all defendants have been charged in Count 1; however at no time prior to entry of its verdict will the jury be advised that Defendants Cesar Madonado Bazquez, Jesus Rodriguez Orosco, and Antioco Cabrera Esquivel have entered guilty pleas on Count 1. There will be only one verdict form, that for Defendant Rogelio Galvan Chavez, and the jurors will be instructed that "at this time they are to consider their verdict only as to him."

Galvan Chavez then moved for a severance contending that his defense would be prejudiced by the irregularity of a proceeding in which the codefendants would make no opening statements or closing arguments, and the verdict form would relate to him alone. The district court denied that motion and proceeded to trial.⁴

The Trial

The trial lasted four days. It was not disclosed to the jury at any time, directly or indirectly, that Madonado Bazquez, Rodriguez Orosco or Cabrera Esquivel had entered pleas of guilty to any of the charges in the indictment; and while their lawyers made no opening statements, they did cross examine Government witnesses concerning the quantity or weight of the contraband to be attributed to their respective clients. Those Defendants then rested without offering any testimony or evidence in defense, and their counsel made no closing arguments.

Galvan Chavez, on the other hand, participated fully in all aspects of the trial and testified as a witness in his own defense. After closing argument the jury was instructed that their verdict form would be restricted to the case of Galvan Chavez alone.

The Verdict and The Sentences

The jury found Galvan Chavez guilty of each of the offenses charged against him in the indictment.

The district court, as finder of the facts, later adjudged Madonado Bazquez and Rodriguez Orosco guilty as charged in Count One, and found Cabrera Esquivel guilty of the lesser included offense of conspiring to possess with intent to distribute more than 50 but less than 500 grams of methamphetamine.

Subsequently, at sentencing, the court imposed a term of life imprisonment upon Galvan Chavez under Count One with lesser concurrent sentences for the other counts of conviction. Madonado Bazquez received a sentence of 136 months; Rodriguez Orosco received a sentence of 200 months; and Cabrera Esquivel received a sentence of 96 months, all imposed under count One with lesser concurrent sentences for their other offenses.

Galvan Chavez' Motion for Severance

Fed. Rule of Crim. P. 8(b) permits the joinder of Defendants in the same indictment "if they are alleged to have participated in the same act or transaction," and the general rule is that Defendants indicted together should be tried together, especially in conspiracy cases. E.g., United States v. Cassano, 132 F.3d 646 (11th Cir.1998); United States v. Jacoby, 955 F.2d 1527 (11th Cir.1992); United States v. Alvarez, 755 F.2d 830 (11th Cir. 1985). And while Fed. Rule of Crim. P. 14(a) permits a severance of the Defendants for trial if their joinder "appears to prejudice a defendant," the law is well developed that we will not reverse the denial of a motion for severance in the absence of a clear abuse of discretion. To succeed on appeal the Defendant must carry the heavy burden of demonstrating the lack of a fair trial due to actual, compelling prejudice. E.g., United States v. Gari, 572 F.3d 1352 (11th Cir.2009); United States v. Novaton, 271 F.3d 968 (11th Cir.2001); United States v. Cobb, 185 F.3d 1193 (11th Cir.1999).

While a severance on any of the following grounds is rarely granted,⁵ the cases discuss four types of prejudicial joinder that can require a severance under Rule 14:

(1) Where the Defendants rely upon mutually antagonistic defenses. United States v. Gonzalez, 804 F.2d 691 (11th Cir.1986); United States v. Crawford, 581 F.2d 489 (5th Cir.1978);⁶ United States v. Johnson, 478 F.2d 1129 (5th Cir.1973). But see, Zafiro v. United States, supra, n. 4.

(2) Where one Defendant would exculpate the moving Defendant in a separate trial, but will not testify in a joint setting. United States v. Cobb, supra; United States v. Dennis, 645 F.2d 517 (11th Cir. 1981), abrogated in part by United States v. Lane, 474 U.S. 438, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986); United States v. Martinez, 486 F.2d 15 (5th Cir.1973).

(3) Where inculpatory evidence will be admitted against one Defendant that is not admissible against the other. United States v. Lane, 584 F.2d 60 (5th Cir.1978); United States v. Bova, 493 F.2d 33 (5th Cir.1974), abrogated in part by United States v. Lane, 474 U.S. 438, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986); Barton v. United States, 263 F.2d 894 (5th Cir.1959).

(4) Where a cumulative and prejudicial "spill over" effect may prevent the jury from sifting through the evidence to make an individualized determination as to each Defendant. United States v. Schlei, 122 F.3d 944 (11th Cir.1997); United States v. Wilson, 894 F.2d 1245 (11th Cir.1990); United States v. Broadwell, 870 F.2d 594 (11th Cir. 1989).

Galvan Chavez's motion for a severance was not supported by any of these theories of relief. Distilled to its essence, his contention was that he might have had a better chance of acquittal if he could have gone it alone without the baggage of codefendants who were, essentially, in the eyes of the jury, offering no defense at all. That claim is simply insufficient to demonstrate prejudice. Zafiro, supra, 506 U.S. at 540, 113 S.Ct. at 938 ("It is well settled that defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials.") See also, United States v. Cassano, 132 F.3d 646, 651 (11th Cir.1998), and United States v. Talley, 108 F.3d 277, 280 (11th Cir.1997).

Despite his inability to demonstrate specific and compelling prejudice to his defense, Galvan Chavez also argues on appeal that the lack of a severance should be treated as reversible error because it resulted in a "deception" of the jury by the district court, and that this court should exercise its supervisory authority to prevent any future repetition of such an unseemly ruse. Specifically, Galvan Chavez complains that the jury was misled to believe that it was trying four Defendants when, in fact, his was the only case proceeding to verdict.

We begin our analysis of this claim with two observations. One is that the circumstances of this case appear to be unique. Galvan Chavez cites no authority—and we have found none—that would condemn the technique employed here by the district judge in an obvious good faith effort to resolve the trial enigma which confronted her. Second, it is a bit too much to say that the jury was deceived in the sense that the court overtly misdescribed or falsely characterized the posture of the other Defendants. On the contrary,...