U.S.A. v. Deleon

• Decision Date: 19 July 1999
• Docket Number: No. 98-2172,98-2172
• Citation: 187 F.3d 60
• Parties: (1st Cir. 1999) UNITED STATES OF AMERICA, Appellee, v. RUBEN I. DELEON, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 60

187 F.3d 60 (1st Cir. 1999)

UNITED STATES OF AMERICA, Appellee, v. RUBEN I. DELEON, Defendant, Appellant.

No. 98-2172.

United States Court of Appeals for the First Circuit.

Argued June 9, 1999.

Decided July 19, 1999.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Copyrighted Material Omitted] Stephanie S. Browne, Assistant U.S. Attorney, with whom Margaret E. Curran, U.S. Attorney, was on brief, for government.

Angel Taveras, with whom Brown, Rudnick, Freed & Gesmer, was on brief, for appellant.

Before Torruella, Chief Judge, Noonan, Senior Circuit Judge,^* Lynch, Circuit Judge.

LYNCH, Circuit Judge.

After a successful sting operation, the government charged Ruben I. DeLeon with conspiracy to possess and distribute cocaine, in violation of 21 U.S.C. § 846, and the attempt to possess with intent to distribute cocaine, in violation of 18 U.S.C. § 841(a)(1). DeLeon and his three co-conspirators were tried together. The jury convicted DeLeon and two of his co-defendants,¹ but acquitted co-defendant David Scialo of all charges. DeLeon now appeals his conviction and challenges his sentence. We affirm.

I

In the fall of 1994, Rhode Island police detective Fred Rocha met with Andrew Beagan, later DeLeon's co-defendant, to arrange a large cocaine sales transaction. They agreed that Rocha, who was supplying the cocaine, would pick up a "drop car," load it with ten kilograms of cocaine, drive it to an undisclosed location, and then meet Beagan at a separate location to collect the payment. Detective Rocha delivered the car and contraband as planned and then went to a Days Inn Hotel parking lot where he waited for Beagan. Beagan arrived with DeLeon, who was carrying the money for the buy. DeLeon brought the money to Detective Rocha and observed Rocha as he inspected the money, which was bundled in packages of $5,000. As Detective Rocha examined the money, he conversed with DeLeon and, unbeknownst to DeLeon, recorded their conversation. Meanwhile, co-defendants Charles Rogers and David Scialo were retrieving the drop car and the cocaine. All of the defendants were soon arrested, indicted, and tried together.

II

DeLeon has raised three objections to his conviction, and one to his resentencing. First, he says that the district court abused its discretion by refusing to sever his trial from those of his co-defendants, particularly Beagan, and that this error had a significant prejudicial effect on him. Second, he argues that the court abused its discretion in allowing the jury to use an unauthenticated transcript and translation of his recorded conversation with Detective Rocha in the Days Inn parking lot. Third, he contends that the court abused its discretion by allowing the government to conduct ex parte in camera interviews with two jurors, nineteen months after his conviction, in order to further investigate allegations of jury tampering as to co-defendant Scialo. Finally, DeLeon says that at resentencing the court incorrectly believed that it lacked the authority to depart downward (from the guideline sentencing range) on the basis of DeLeon's status as a deportable alien, and so this court should vacate his sentence and remand for resentencing.

A. Denial of Severance Motions

DeLeon argues that the district court abused its discretion by refusing to sever his trial from those of his co-defendants in light of the following three combined factors: first, defense counsel's repeated inquiries, on direct examination, into third-party "generalized fear" of Beagan's potential for violence; second, the government's six references to Beagan's prior conviction for possession of cocaine with intent to deliver -- evidence admitted in response to character evidence introduced on Beagan's behalf; and third, the potential "spillover" prejudice to DeLeon due to the significant disparity in both the nature and the amount of evidence introduced against Beagan in comparison to that introduced against DeLeon. DeLeon moved to sever his trial on several occasions; each time, his request was denied. We review the district court's denials of severance motions for manifest abuse of discretion. See United States v. Boylan, 898 F.2d 230, 246 (1st Cir. 1990). We note that this court has already rejected a similar claim made by co-defendant Charles Rogers. See United States v. Rogers, 121 F.3d 12, 16 (1st Cir. 1997).

DeLeon's argument is that because his role in the drug transaction was so minor, the jury should not have been asked to assess his case alongside Beagan's case for fear that some spillover prejudice might taint DeLeon's verdict. See Fed. R. Crim. P. 14 (stating that if a defendant is prejudiced by a joinder for trial, then the court may order separate trials). "The difficulty with this argument lies in the case law holding to the contrary." United States v. Rawwad, 807 F.2d 294, 295 (1st Cir. 1986). This court's rule is that those "who are indicted together should be tried together," United States v. O'Bryant, 998 F.2d 21, 25 (1st Cir. 1993), and the district court's joinder in this case appropriately followed that presumption. See United States v. Perkins, 926 F.2d 1271, 1280 (1st Cir. 1991) (noting the "obvious" reasons to try jointly those persons charged as co-conspirators in the identical cocaine sale, and citing Fed. R. Crim. P. 8(b)). DeLeon has not challenged this initial decision by the district court.

To overcome the district court's presumption in favor of joinder, DeLeon must demonstrate prejudice so pervasive that it would be likely to effect a miscarriage of justice. See United States v. Pierro, 32 F.3d 611, 615 (1st Cir. 1994); United States v. Sabatino, 943 F.2d 94, 96-97 (1st Cir. 1991). This requirement means more than establishing that the defendant might have had a better chance of acquittal in a separate trial. See Zafiro v. United States, 506 U.S. 534, 540 (1993). "This is a difficult battle for a defendant to win," Boylan, 898 F.2d at 246, and the circumstances of this case do not equip DeLeon to meet the challenge.

DeLeon's best effort is his argument that he was severely prejudiced when Beagan's counsel repeatedly inquired about generalized third-party fear of Beagan's potential violence. The trial judge, after denying the severance motions filed by all the co-defendants in response to Beagan's testimony, acknowledged that he was "getting close to the point where [he was] seriously considering [granting the motions]." The judge conceded that "these [references to third-party fear] are beginning to add up," and warned that "if it [didn't] stop," then he would grant the severance motions. DeLeon contends that if, at that point, the court was already wavering, then the government's six subsequent references to Beagan's prior conviction -- and the additional potential prejudice they carried -- should have driven the court to grant the severance motions.

At bottom, this is simply a disagreement with the district court's exercise of its considerable discretion. See Boylan, 898 F.2d at 246 (stating that the decision whether to grant or deny a severance motion is committed to the district court's discretion). Significant deference is given to a district court's decision to deny a severance motion. See Rogers, 121 F.3d at 16. That the decision was apparently a close one for the district court does not divest the district court of its discretion or permit this court to examine more closely the exercise of that discretion. See O'Bryant, 998 F.2d at 25-26 ("[T]he district court is best able to gauge matters of joinder and severance because its first-hand exposure to a case gives it a unique ability to evaluate conflicting arguments, . . . consider all the ramifications attendant to a defense motion, and strike the delicate balance between fending off prejudice, on the one hand, and husbanding judicial resources, on the other hand.").

Our case law supports the court's decision in this case. There is, of course, the ever-present risk of prejudice in such joint trials. Cf. Zafiro, 506 U.S. at 539 (explaining that "[w]hen many defendants are tried together in a complex case and they have markedly different degrees of culpability, this risk of prejudice is heightened") (emphasis added). DeLeon has emphasized this potential for prejudice in his case, but "ha[s] failed to show anything greater." United States v. Cresta, 825 F.2d 538, 555 (1st Cir. 1987); see also Boylan, 898 F.2d at 246 ("Even where large amounts of testimony are irrelevant to one defendant, or where one defendant's involvement in an overall agreement is far less than the involvement of others, we have been reluctant to secondguess severance denials.").

Furthermore, the district court took appropriate measures to safeguard against potential spillover prejudice by instructing the jury to consider separately the charges and the evidence as to each defendant. See Rogers, 121 F.3d at 16 (acknowledging the district court's instruction that the jury should consider separately the evidence and charges against each defendant); Boylan, 898 F.2d at 246 (approving the district court's use of "appropriate limiting instructions" as to evidence against particular defendants); Cresta, 825 F.2d at 555 (same).

Co-defendant Scialo's acquittal on all charges suggests that the jury was capable of following the trial judge's instructions and did so. See Pierro, 32 F.3d at 616 ("Here, there is no basis to suppose that the jurors disregarded the trial judge's admonitions and departed on a frolic of their own."); see also Cresta, 825 F.2d at 555; Boylan, 898 F.2d at 246; United States v. Tashjian, 660 F.2d 829, 834 (1st Cir. 1981).

B. Use of Unauthenticated Transcript and Translation

During Detective Rocha's testimony at trial, the government asked him to relate his conversation with DeLeon in the Days Inn parking lot. The government also introduced a tape recording of their conversation. To help the jury follow the...