U.S. v. Dobin, 90-5551MN

• Decision Date: 10 July 1991
• Docket Number: No. 90-5551MN,90-5551MN
• Citation: 938 F.2d 867
• Parties: UNITED STATES of America, Appellee, v. Joey Alan DOBIN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 867

938 F.2d 867

UNITED STATES of America, Appellee, v. Joey Alan DOBIN, Appellant.

No. 90-5551MN.

United States Court of Appeals Eighth Circuit.

Submitted May 14, 1991.

Decided July 10, 1991.

Frederick J. Goetz, argued, for appellant; Barry V. Voss, Minneapolis, Minn., on brief.

Nathan P. Petterson, argued, for appellee; Lisa A. Frane, Minneapolis, Minn., on brief.

Before ARNOLD and LOKEN, Circuit Judges, and FLOYD R. GIBSON, Senior Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Dobin appeals the district court's ¹ denial of his motion to sever his trial from that of a codefendant, John Bruggenthies. We affirm.

Dobin, Bruggenthies, and three other individuals were indicted for possessing cocaine with intent to distribute and conspiring to possess cocaine with intent to distribute. Dobin and Bruggenthies pleaded not guilty; two of the three other individuals (Wheeler and McMahon) pleaded guilty and agreed to testify against Dobin and Bruggenthies. Dobin moved to sever his trial from that of Bruggenthies, but this motion was denied by the magistrate judge. ² The motion was renewed before the district judge prior to trial, but the motion was again denied.

After the trial began, Bruggenthies' counsel, in an in camera hearing, informed the judge, the government's counsel, and Dobin's counsel that he planned a somewhat unusual strategy. Because Bruggenthies' efforts to convince the government to accept his cooperation and make a motion for a downward departure based on that cooperation had failed, ³ Bruggenthies planned to testify truthfully as to his involvement in the conspiracy; in so doing he would corroborate some of the testimony of McMahon and Wheeler. By these acts, Bruggenthies hoped to curry the court's favor in hopes that it would decrease his sentence. Dobin renewed his motion for a severance, which was opposed by both Bruggenthies and the government. The district court again denied Dobin's motion.

Bruggenthies did testify as to his involvement in the conspiracy. However, because he had never personally dealt with Dobin, Bruggenthies' testimony regarding Dobin was rather limited. All that Bruggenthies could say about Dobin was that McMahon and Wheeler had both used the name "Joe" in describing their contact in Florida, and that "Joe" was slightly heavier than Bruggenthies, had a mustache, but not much hair. After completing his testimony, and out of the jury's presence, Bruggenthies changed his plea to guilty; his plea was accepted. A cautionary instruction was later read to the jury, instructing it to consider only the evidence against Dobin and not to concern itself with Bruggenthies. At no time after Bruggenthies' testimony was Dobin's motion for a severance renewed. The jury found Dobin guilty, and he now appeals the district court's denial of his severance motion.

Initially, we must ascertain whether this issue was properly preserved for review. If the issue was preserved, we review the district court's decision for an abuse of discretion; if the issue was not preserved, we reverse the district court only if plain error occurred. United States v. Munoz, 894 F.2d 292, 294 (8th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 1934, 109 L.Ed.2d 297 (1990).

This circuit has rejected the rigid requirement that the defendant must renew his severance motion after the close of the government's case, and instead we consider the actions taken by the defendant in light of the purposes for requiring the motion's renewal. United States v. Thornberg, 844 F.2d 573, 576 (8th Cir.), cert. denied, 487 U.S. 1240, 108 S.Ct. 2913, 101 L.Ed.2d 944 (1988). Stated another way, we "must look to the principal reasons for requiring the preservation of objection (1) to indicate whether the appealing party consented to the error, and (2) to give the trial court the opportunity to rule on the matter in its concrete form." United States v. Marin-Cifuentes, 866 F.2d 988, 994 (8th Cir.1989).

Our primary focus in this case is on the second of these two purposes. When a motion is made based on facts believed to exist, and there is no material change with respect to what happens at the trial, then a renewed motion for severance is not necessary. However, if events at trial do not correspond to what is expected to occur when the motion...