U.S. v. Gillam, s. 97-50462

• Citation: 167 F.3d 1273
• Decision Date: 18 February 1999
• Docket Number: Nos. 97-50462,97-50466,s. 97-50462
• Parties: 99 Cal. Daily Op. Serv. 1258, 1999 Daily Journal D.A.R. 1595 UNITED STATES Of America, Plaintiff-Appellee, v. Joann Winfield GILLAM and Lizzie Bea McGirt, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1273

167 F.3d 1273

99 Cal. Daily Op. Serv. 1258, 1999 Daily

Journal D.A.R. 1595

UNITED STATES Of America, Plaintiff-Appellee, v. Joann Winfield GILLAM and Lizzie Bea McGirt, Defendants-Appellants.

Nos. 97-50462, 97-50466.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 8, 1998.

Decided Feb. 18, 1999.

Tracy W. Young, Rossbacher & Associates, Los Angeles, CA, and Karen L. Woods, Los Angeles, CA, for defendants-appellants.

Marc S. Harris, Assistant United States Attorney, Los Angeles, CA, for plaintiff-appellee.

Appeals from the United States District Court for the Central District of California. D.C. Nos. CR-96-00803-RAP-01, CR-96-00803-RAP-02.

Before: William C. Canby, Jr. and Sidney R. Thomas, Circuit Judges, and William W. Schwarzer, ^* Senior District Judge.

SCHWARZER, Senior District Judge.

Lizzie Bea McGirt ("McGirt") and Joann Winfield Gillam ("Gillam") appeal from their conspiracy, smuggling and bribery convictions. They contend that their convictions should be reversed because the district court failed to sever their trials and because the prosecutor discriminated in his exercise of peremptory strikes. They also assert sentencing errors, arguing that the district court misapplied the guideline by basing their sentences on the benefit received by the payers of the bribe and erred in denying McGirt a downward adjustment for acceptance of responsibility. We affirm the convictions and find no error in the sentences.

FACTS AND PROCEDURAL HISTORY

McGirt was employed as an inspector by the Food and Drug Administration ("FDA") at the Los Angeles harbor. McGirt's duties included ensuring that no prohibited foodstuffs were approved for importation into the United States. Gillam operated a courier service and acted as a liaison between importers and the FDA.

In August 1995, McGirt approached her supervisor at the FDA, Richard Guillen ("Guillen"), and described a scheme whereby McGirt falsified importation entry documents for prohibited foodstuffs in exchange for Guillen informed the Federal Bureau of Investigation ("FBI"), which instructed him to join in the scheme. Guillen began receiving documents relating to shipments of various importers and was paid by McGirt and Gillam for his assistance in clearing those shipments. Guillen taped conversations with McGirt and Gillam in which they acknowledged that their involvement in the bribery scheme relating to smuggling of prohibited food products predated Guillen's recruitment. When the FBI arrested McGirt and Gillam, Gillam admitted her involvement in the scheme and made a detailed statement describing it, including McGirt's involvement.

bribes from particular importers. Gillam, using her courier service, delivered the fraudulent entry documents to the importers, received the bribes and shared them with McGirt. McGirt asked Guillen to continue the operation with Gillam after McGirt's impending retirement.

Gillam and McGirt were each charged with violating 18 U.S.C. § 371 (1994) (conspiracy), 18 U.S.C. § 201 (1994) (bribery of a public official), and 18 U.S.C. § 545 (1994) (smuggling). Both pled not guilty. Prior to trial, Gillam, joined by McGirt, filed a motion to sever the trial which the district court denied. During jury selection, counsel for Gillam (who, along with McGirt, is African-American) objected to the government's peremptory challenge of a male, Hispanic juror. The district court denied the objection without making specific findings.

In his opening statement, Gillam's counsel made a comment placing blame for the scheme on McGirt. Counsel for McGirt objected and the court admonished the jury. Gillam did not testify at the trial and offered no evidence to implicate McGirt. The government, however, introduced a redacted version of Gillam's post-arrest statement through the testimony of FBI Agent Houston. While Gillam's post-arrest statement implicated McGirt by name, Agent Houston referred only to an unnamed FDA contact. The court admonished the jury to consider Gillam's statement against Gillam only. After this testimony McGirt renewed her motion to sever on the basis that the reference to an FDA contact implicated McGirt. The court denied the renewed motion to sever. The jury convicted appellants on all counts.

In sentencing appellants under the bribery guideline, the court determined the benefit received to be not the amount of the bribes but the profits realized by the importers who benefited from the illegal scheme. See United States Sentencing Guidelines ("U.S.S.G.") § 2C1.1 (1997). It granted Gillam's request for a downward adjustment for acceptance of responsibility but denied all other requests for downward adjustments and departures. The court then sentenced McGirt to forty-one months' and Gillam to thirty months' imprisonment.

DISCUSSION

I. SEVERANCE

We review the denial of a severance for abuse of discretion. See United States v. Vasquez-Velasco, 15 F.3d 833, 844 (9th Cir.1994). Appellants must show that joinder of the trials " 'was so manifestly prejudicial as to require the trial judge to exercise his discretion in but one way, by ordering a separate trial.' " United States v. Ramirez, 710 F.2d 535, 546 (9th Cir.1983) (quoting United States v. Abushi, 682 F.2d 1289, 1296 (9th Cir.1982)).

Appellants contend that they suffered undue prejudice because (1) they had antagonistic, mutually exclusive defenses and (2) McGirt was denied her right to confront Gillam on her post-arrest statement.

A. Antagonistic Defenses

Where the possibility of antagonistic defenses exists, the tailoring of the relief to be granted is left to the discretion of the district court. See Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Severance is required only when the codefendants' defenses are mutually exclusive, that is, when acquittal of one codefendant necessarily results in the conviction of the other. See United States v. Adler, 879 F.2d 491, 497 (9th Cir.1988). This is not such a case.

Appellants' reliance on United States v. Tootick, 952 F.2d 1078, 1080-83 (9th Cir.1991), is misplaced. In Tootick, each of the codefendants, in opening statements, direct testimony and cross-examination, sought to pin criminal responsibility on the other. The trial judge gave only general instructions to the jury and failed to safeguard defendants' right to a fair trial. On the extraordinary record in that case, we reversed defendants' convictions, finding that the failure to sever resulted in manifest prejudice. See id. at 1086.

In this case, McGirt points only to Gillam's attorney's comment in his opening statement attempting to portray Gillam as the unwitting dupe of the real culprits, McGirt and Guillen. The court admonished the jury that opening statements are not evidence. Gillam offered no evidence and did not seek to gain acquittal by implicating McGirt. This, therefore, is not a case of mutually exclusive defenses.

B. Inculpatory Post-Arrest Statement

Appellants next contend that, Gillam not having taken the stand, the introduction of Gillam's post-arrest statement resulted in undue prejudice because it denied McGirt her Sixth Amendment right to confront an adverse witness. A redacted version of Gillam's post-arrest statement was introduced through the testimony of the arresting agent. The agent's testimony did not mention McGirt by name but did make three indirect references to her as someone who "worked at FDA" who "was getting ready to retire." Appellants contend that severance was required because the statement implicitly referred to McGirt even after redaction.

Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), held that a defendant is denied her Sixth Amendment right of confrontation when a facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant. See id. at 127-28, 88 S.Ct. 1620. In Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998), the Court held that a codefendant's redacted confession which replaced a defendant's proper name with an obvious indication of deletion, such as blank spaces or the word "delete," is not sufficient to comply with Bruton's protective rule. See id. at 1157. Specifically, the Gray Court found the redaction, "Me, deleted, deleted, and a few other guys," to be insufficient. See id. Following Gray, we recently held that a redaction replacing the defendant's name with "person X" is clearly impermissible, because

[t]he codefendant was pointing an accusatory finger at someone and it was not difficult for the jury to determine that that person was the other defendant on trial.

United States v. Peterson, 140 F.3d 819, 822 (9th Cir.1998).

The violation of Gray in this case is, if anything, more patent. Replacing McGirt's name with "someone who worked at FDA ... who was getting ready to retire" not only made it clear that Gillam was pointing an accusatory finger at someone else but also left little doubt for the jury that it was the codefendant, McGirt.

Once we find a Bruton error, the prosecution has the burden of showing that the error was harmless beyond a reasonable doubt. See id. In this case the testimony erroneously admitted was merely cumulative of other overwhelming and essentially uncontroverted evidence properly admitted, including Guillen's detailed testimony describing McGirt's involvement and the recordings in which McGirt admitted her participation in the scheme. See Brown v. United States, 411 U.S. 223, 231, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973) (finding Bruton error harmless where erroneously admitted testimony was cumulative of other overwhelming and uncontroverted evidence). The impact of the indirect reference to McGirt was not so devastating that the jury could not be expected to follow the judge's admonition to consider the statement only against Gillam. See B...