U.S. v. Escalante

• Decision Date: 29 April 1980
• Docket Number: No. 78-2794,78-2794
• Citation: 637 F.2d 1197
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Albert ESCALANTE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1197

637 F.2d 1197

UNITED STATES of America, Plaintiff-Appellee, v. Albert ESCALANTE, Defendant-Appellant.

No. 78-2794.

United States Court of Appeals Ninth Circuit.

April 29, 1980.

Certiorari Denied Oct. 6, 1980. See 101 S.Ct. 154.

Samuel G. Jackson, Jr., Los Angeles, Cal., for defendant-appellant.

Daniel J. Gonzales, Los Cruces, N. M., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before WRIGHT and WALLACE, Circuit Judges, and HOFFMAN, ^* District Judge.

WALLACE, Circuit Judge:

Escalante, together with others, was indicted for participation in a smuggling ring which allegedly imported some 300 to 500 kilograms of heroin from Mexico with a wholesale value as high as $12,000,000. While Escalante was charged with membership in both a conspiracy to import and a conspiracy to distribute, he was convicted only of the conspiracy to import heroin in violation of 21 U.S.C. §§ 963, 952(a) and 960(a)(1). He alleges three errors which merit discussion: that the evidence was insufficient to lead to his conviction; that the court committed reversible error when it failed to sever his case from that of his codefendants; and that the court abused its discretion in failing to grant a mistrial subsequent to the improper introduction of certain evidence. We affirm.

I.

In the fall of 1975, codefendant Vila came to Los Angeles looking for a source of supply for his New York heroin distribution operation. He contacted Leeds, who in turn contacted Reyes and Maldonado. In December of 1975, Reyes and Maldonado drove to San Diego to Escalante's residence in search of a large scale source of heroin. Escalante introduced them to codefendant Romero. At that time the four discussed Romero's supplying Vila with the heroin that his operation needed. Reyes and Maldonado agreed to purchase a sample of heroin from Romero, drove to Los Angeles, and obtained the $6,000 purchase price from Vila. They drove back to San Diego the same day, purchased a sample, and returned to Los Angeles. The sample was given to Vila. This was the beginning of a large and extensive heroin business and forms the basis of the importation conspiracy pursuant to which Escalante was convicted.

II.

A. Sufficiency of the Evidence

We have no doubt that the evidence was sufficient to establish that the conspiracy to import heroin was proven beyond a reasonable doubt. Escalante argues, however, that the government did not prove beyond a reasonable doubt his connection with the alleged conspiracy. The evidence against Escalante may be fairly summarized as follows:

1. Reyes testified that, in the attempt to obtain a heroin connection for Vila, he and Maldonado met with Romero at Escalante's home.

2. At this meeting, Escalante introduced Romero, saying, "This is my friend. You guys make arrangements in any way you can as to the deals you guys got going."

3. At this meeting, the three (Reyes, Maldonado, and Romero) discussed narcotics in Escalante's presence with Escalante occasionally joining in the discussion.

4. During part of this meeting, all four were in a room where heroin was drying under heat lamps.

5. At this meeting Escalante told Reyes that he made money "running (heroin) across the border," and Romero told Reyes that Escalante would do the same for "the people."

6. A government witness named Miller testified that Escalante was also present later that day when Romero was making arrangements with Reyes and Maldonado to get a heroin sample for "the New York people." At this time, Escalante asked Miller if he had any heroin left over from a transaction that Miller had just consummated. The government argues that this evidence established beyond a reasonable doubt that Escalante knew that a large scale operation was being discussed with Romero, knowingly allowed his home to be used for this purpose, and that, in his conversation with Miller, Escalante attempted to procure a heroin sample for Vila. It also argues that the jury could infer that Escalante was to have a role in the heroin importation and distribution operation that Reyes, Maldonado and Romero were discussing.

In order to be a coconspirator, one need not know all the purposes of and participants in the conspiracy. United States v. Kearney, 560 F.2d 1358, 1362 (9th Cir.), cert. denied, 434 U.S. 971, 98 S.Ct. 522, 54 L.Ed.2d 460 (1977). It is sufficient if the government proves beyond a reasonable doubt even a slight connection between the defendant and the conspiracy. United States v. Dunn, 564 F.2d 348, 356-57 (9th Cir. 1977). Thus the government's proof is adequate to sustain the conviction. We have upheld a conspiracy conviction based on a connection proved by less incriminating evidence than that of this case. See United States v. Kostoff, 585 F.2d 378, 380 (9th Cir. 1978). Considering the evidence in the light most favorable to the government, as the prevailing party, United States v. Young, 573 F.2d 1137, 1139 (9th Cir. 1978), we conclude that there is sufficient evidence to connect Escalante to the importation conspiracy. ¹

B. Credibility of Witnesses

Additionally, Escalante challenges the sufficiency of the evidence by attacking the credibility of the government witnesses, Miller and Reyes, principally on the basis of their immunity from prosecution. As Escalante concedes, even the uncorroborated testimony of a single accomplice is sufficient by itself to sustain a conviction, if the testimony is not "incredible or unsubstantial on its face." Darden v. United States, 405 F.2d 1054, 1056 (9th Cir. 1969). See also United States v. Valdivia, 492 F.2d 199, 204 (9th Cir. 1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974); United States v. Bagby, 451 F.2d 920, 930 (9th Cir. 1971). He argues, however, that the witnesses' testimony was not believable. This is immaterial; the question is whether the witnesses' testimony was believed, not believable. United States v. Valdivia, supra, 492 F.2d at 204-05.

It may be assumed that the jury was aware of each of the factors that Escalante points to as undermining the witnesses' credibility. Nevertheless, the jury believed the witnesses' testimony, as was their prerogative as jurors. United States v. Young, supra, 573 F.2d at 1139 ("it is the jury's exclusive function to weigh the credibility of witnesses, resolve evidentiary conflicts and draw reasonable inferences from proven facts"). We are unable to say that the testimony here was "incredible or unsubstantial on its face" so as to justify limiting the jury's role. Therefore, the testimony of Miller and Reyes was appropriately considered by the jury and is sufficient to sustain the conviction.

III.

Escalante next contends that the district court abused its discretion in failing to grant his motion to sever brought pursuant to Fed.R.Crim.P. Rule 14. In support of his pretrial motion for severance, Escalante made the following allegations:

1. Although the charged conspiracies extended from September 1975 to November 1977, Escalante was not alleged to have committed any overt act after December 1975.

2. It was likely that Vila's connection to organized crime and gangland murders would come out at the trial.

3. The injection of organized crime and murder into the trial would be highly prejudicial to Escalante. In opposition to the motion, the government assured the court that it would not attempt to elicit the prejudicial testimony. Although the testimony did come out at trial, it was through no fault of the government.

Rule 14 provides that, at the discretion of the trial judge, a severance may be ordered when it appears that a defendant may be significantly prejudiced by a joint trial with his codefendants. Generally speaking, defendants jointly charged are to be jointly tried. United States v. Gay, 567 F.2d 916, 919 (9th Cir.), cert. denied, 435 U.S. 999, 98 S.Ct. 1655, 56 L.Ed.2d 90 (1978). This is also the rule in conspiracy cases. United States v. Kelly, 569 F.2d 928, 938 (5th Cir.), cert. denied, 439 U.S. 829, 99 S.Ct. 105, 58 L.Ed.2d 123 (1978); see Haggard v. United States, 369 F.2d 968, 974 n.16 (8th Cir. 1966), cert. denied, 386 U.S. 1023, 87 S.Ct. 1379, 18 L.Ed.2d 461 (1967).

The test for determining abuse of discretion in denying severance under Rule 14 is whether a joint trial would be so prejudicial that the trial judge could exercise his discretion in only one way. United States v. Mills, 597 F.2d 693, 696 (9th Cir. 1979); United States v. Adams, 581 F.2d 193, 198 (9th Cir.), cert. denied, 439 U.S. 1006, 99 S.Ct. 621, 58 L.Ed.2d 683 (1978). The ruling of the trial judge will rarely be disturbed on appeal. United States v. McPartlin, 595 F.2d 1321, 1333 (7th Cir. 1979); United States v. Campanale, 518 F.2d 352, 359 (9th Cir. 1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638 (1976).

The party seeking reversal of a decision denying severance under Rule 14 has the burden of proving "clear," "manifest," or "undue" prejudice from the joint trial. United States v. McDonald, 576 F.2d 1350, 1355 (9th Cir.), cert. denied, 439 U.S. 830, 99 S.Ct. 105, 58 L.Ed.2d 124 (1978); United States v. Gay, supra, 567 F.2d at 919. Such a party must show more than that a separate trial would have given him a better chance for acquittal. United States v. Adams, supra, 581 F.2d at 198; United States v. Campanale, supra, 518 F.2d at 359. He must also show violation of one of his substantive rights by reason of the joint trial: unavailability of full cross-examination, lack of opportunity to present an individual defense, denial of Sixth Amendment confrontation rights, lack of separate counsel among defendants with conflicting interests, or failure properly to instruct the jury on the admissibility of evidence as to each defendant. See United States v. Camacho, 528 F.2d 464, 470 (9th Cir.), cert. denied, 429 U.S. 995, 96 S.Ct. 2208, 48 L.Ed.2d 819 (1976). In other words, the prejudice must have been...