U.S. v. Dominguez

• Decision Date: 13 September 2000
• Docket Number: No. 99-4200,99-4200
• Parties: (11th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EFRAIN DOMINGUEZ, Defendant-Appellant
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1235

226 F.3d 1235 (11th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EFRAIN DOMINGUEZ, Defendant-Appellant.

No. 99-4200

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

September 13, 2000

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

D.C. Docket No. 96-00976-CR-DMM

Before ANDERSON, Chief Judge, CARNES and RONEY, Circuit Judges.

CARNES, Circuit Judge:

After having been convicted by a jury on multiple counts involving participation in a cocaine distribution organization and mortgage fraud, Efrain Dominguez appeals, contending that the district court erred: 1) by permitting the mortgage fraud- related charges to be joined with the drug-related charges under Rule 8(a) of the Federal Rules of Criminal Procedure; and 2) by failing to grant a mistrial or, in the alternative, by failing to adequately investigate indications that the jury had engaged in premature deliberations. We are unpersuaded by either contention and affirm his convictions.

I. BACKGROUND

Efrain Dominguez was charged by superseding indictment with twenty-eight counts of conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. 846; conspiracy to money launder, in violation of 18 U.S.C. 1956(h); money laundering, in violation of 18 U.S.C. 1956(a)(1)(A) and (B); use of a telephone facility in commission of a felony, in violation of 21 U.S.C. 843(b) and (d); and mortgage fraud, in violation of 18 U.S.C. 1014.¹ The charges break down into two general sets of crimes - one set involving participation in a cocaine distribution organization (Counts 1- 24), and the other involving mortgage fraud (Counts 25-28).

Before trial, Dominguez filed a motion to sever the mortgage fraud-related charges pursuant to Rule 8(a) and Rule 14 of the Federal Rules of Criminal Procedure. The government opposed severance on the ground that the drug-related charges and mortgage fraud-related charges were properly joined under Rule 8(a) as "acts or transactions connected together or constituting parts of a common scheme or plan." Fed. R. Crim. P. 8(a). The government argued that proof of the drug-related charges provided the motive and necessity for the mortgage fraud-related charges. The district court denied Dominguez's motion for severance.

The case was tried before a jury in June 1998. On the eighth day of the nine-day trial, before the government had finished presenting its case, the court received a note from a juror asking to be excused. The court questioned the juror in the presence of both sides, and it became apparent from the juror's answers that at least some of the jurors had already been discussing whether Dominguez was guilty. The district court denied Dominguez's counsel's request to be permitted to question the juror himself, and it denied his request for a mistrial on the basis of premature deliberations.

Before the jury returned a verdict, it sent a note to the court explaining that it was unable to reach a decision on the five money laundering counts (Counts 2-6). Over an objection by Dominguez, the court decided to accept a partial verdict on the counts upon which the jury was able to agree. The jury found Dominguez guilty on all counts except the five money laundering counts. The government then dismissed those five counts.

Following the jury's verdict, Dominguez moved for a judgment of acquittal, or in the alternative, for a new trial based in part upon the court's pretrial denial of his severance motion and in part upon the evidence of premature deliberations by the jury. The district court denied Dominguez's motion. The court sentenced Dominguez to 188 months of imprisonment and five years of supervised release.

On appeal, Dominguez argues that the district court erred by denying his motion to sever the drug-related charges and mortgage fraud-related charges under Rule 8(a) of the Federal Rules of Criminal Procedure, and by failing to grant a mistrial or, in the alternative, to adequately investigate the indications that the jury had started deliberating the case before the closing instructions or even the completion of the evidence.²

II. DISCUSSION

A. Whether the District Court Erred by Denying the Motion to Sever the Drug-Related Charges and Mortgage Fraud-Related Charges as Improperly Joined Under Rule 8(a)

Dominguez contends that the drug-related charges and the mortgage fraud-related charges in the indictment were misjoined under Rule 8(a), and for that reason the district court erred in denying his motion to sever the two sets of charges.³ Rule 8(a) allows "[t]wo or more offenses [to] be charged in the same indictment . . . in a separate count for each offense if the offenses charged . . . are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Fed. R. Crim. P. 8(a). In United States v. Weaver, 905 F.2d 1466 (11th Cir. 1990), this Court explained that:

Rule 8 is broadly construed in favor of the initial joinder. The question of whether initial joinder is proper under Rule [8] is to be determined before trial by examination by the trial court of the allegations stated on the face of the indictment. . . . Thus, we must first look to the indictment in order to determine if appellants' initial joinder was proper under Rule [8]. If improper joinder under Rule [8] occurred, reversal is not required if the misjoinder was harmless error. The improper joinder is harmless unless it results in actual prejudice because it had substantial and injurious effect or influence in determining the jury's verdict.

Id. at 1476-77 (analysis of Rule 8(b)) (internal quotations and citations omitted).

Dominguez argues that the drug-related charges and mortgage fraud-related charges were misjoined because nothing on the face of the indictment tied the two groups of charges together, and the evidence presented at trial with respect to the two groups of charges did not overlap. We agree with Dominguez that, looking solely to the four corners of the indictment, there is no explicit connection between the groups of charges. Drug distribution charges and mortgage fraud charges are not of the "same or similar character." Nor do the charged offenses appear to be "based on the same act or transaction." The counts containing the mortgage fraud charges make no reference to the preceding counts containing the drug charges or to any drug- related activity.

However, when Dominguez moved before trial for severance of the drug-related and mortgage fraud-related charges, contending that they were misjoined under Rule 8(a), the government responded that the charges were properly joined for two reasons. First, the government stated that "proof of the [drug-related charges] provides the motive and necessity for the [mortgage fraud- related charges.]" Second, the government submitted that "both sets of charges will involve the presentation of the same evidence to the jury."

The first reason proffered by the government, taken alone, furnishes the necessary relationship between the two groups of charges: The charged offenses were "acts or transactions connected together or constituting parts of a common scheme or plan," which makes joinder proper under Rule 8(a). According to the government's theory of the case, which was later supported by the trial evidence, Dominguez submitted fraudulent income tax returns when applying for mortgage loans in order to conceal the fact that his income had been derived from drug activity. Regardless of whether both sets of charges involve the presentation of the same evidence, the fact that one illegal activity provides the impetus for the other illegal activity is sufficient to constitute a common scheme for joinder purposes.

In United States v. Kopituk, 690 F.2d 1289 (11th Cir. 1982), the appellants argued that the tax offenses charged against them in the indictment, which included filing false income tax returns, were improperly joined under Rule 8 with the non-tax offenses, which included racketeering, conspiracy to engage in racketeering, extortion, and receipt of kickbacks in connection with a labor matter. Id. at 1295, 1312. This Court concluded that joinder under Rule 8(b) was proper.⁴ We reasoned that:

[t]he tax offenses were . . . part of a series of acts committed in furtherance of the overall conspiracy. In the case of the unreported income received by [two of the appellants], the filing of false income tax returns operated to maximize the benefits enjoyed as a result of their participation in the conspiracy and, of course, facilitated their efforts to avoid detection of the criminal enterprise. As for the fraudulent deductions claimed on behalf of [a corporation involved in the offenses], the preparation of false corporate income tax returns enabled [other appellants] to minimize the adverse financial impact of the illegal payoffs they were making in order to acquire . . . business.

Id. at 1314. See also United States v. Yefsky, 994 F.2d 885, 895 (1st Cir. 1993) ("[T]he tax fraud and mail fraud counts could be joined [under Rule 8(b)] because some of the unreported income was the fruit of the mail fraud scheme."); United States v. Wirsing, 719 F.2d 859, 862-63 (6th Cir. 1983) (drug charges were properly joined under Rule 8(a) with tax evasion charges when the government "contend[ed] that the income that was not reported on [defendant's] return for the years in question was derived from his illegal activity in the conspiracy to distribute drugs" and proof of tax evasion was indirect net worth method). But cf. United States v. Randazzo, 80 F.3d 623, 627 (1st Cir. 1996) (charges for misbranding shrimp were not properly joined under Rule 8 as part of "a common scheme or plan" with tax fraud charges because "it was pure happenstance whether the overstated expenses [on the fraudulent tax returns]...