U.S. v. Gonzalez, 85-5514
| Citation | 804 F.2d 691 |
| Decision Date | 19 November 1986 |
| Docket Number | No. 85-5514,85-5514 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Gilberto GONZALEZ, Defendant-Appellant. Eleventh Circuit |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Humberto J. Aguilar, Fernandez, Fernandez & Aguilar, Miami, Fla., for lopez.
Peter Raben, Frederick S. Robbins, Miami, Fla., for Gonzalez.
Stanley Marcus, U.S. Atty., Gary Nunes, David O. Leiwant, Asst. U.S. Attys., Miami, Fla., for U.S.
Appeal from the United States District Court for the Southern District of Florida.
Before FAY and JOHNSON, Circuit Judges, and HOFFMAN *, Senior District Judge.
In a joint trial, a jury found Anselmo Lopez and Gilberto Gonzalez guilty of knowingly and intentionally possessing with the intent to distribute cocaine in violation of 21 U.S.C. Sec. 955c (1982) and Gilberto Gonzalez guilty of knowingly and intentionally possessing with the intent to distribute cocaine in violation of 21 U.S.C. Sec. 955a(a) (1982). The district court sentenced Gonzalez to two fifteen year prison terms to run concurrently and imposed a fine of $5,000.00. The sole issue Gonzalez raises on appeal is whether the district court erred in denying his motions for severance. After careful review of the record, we reverse and remand for a new trial.
The facts that concern us on appeal are as follows:
On December 12, 1984, a United States Coast Guard Cutter CAPE SHOALWATER spotted the BAHAMAS TRANSPORTER, a large freighter, towing a small cabin cruiser, the JUAN CARLOS I. Approximately nine miles off the Florida coast at about 10:30 p.m. Lieutenant Robert Albright, the commanding officer of the CAPE SHOALWATER made radio contact with the BAHAMAS TRANSPORTER and ascertained the nationality of the boat they were towing as a United States vessel with Florida registration numbers. Albright then brought the SHOALWATER alongside the JUAN CARLOS I and decided to board the vessel for a Coast Guard inspection to determine whether the boat complied with all federal laws and regulations. A routine inspection includes, inter alia, checking fire extinguishers, life preservers, a check for proper ventilation, oil in the bilges and oil in the engine compartments.
The boarding party, consisting of two petty officers, lifted the engine compartment covers and reached down to inspect the engines and the surrounding equipment. The petty officer inspecting the engine compartment found two blue boxes containing a white powdery substance. 1 Anselmo Lopez was the only person found onboard the JUAN CARLOS I. Lopez was transported over to the CAPE SHOALWATER and placed under arrest.
When the CAPE SHOALWATER approached the BAHAMAS TRANSPORTER, Lieutenant Albright instructed petty officer Daum to "pick up the owner of the JUAN CARLOS I." When the officer asked the owner of the JUAN CARLOS I to step forward, Gonzalez got onto the boat. After being transported to the CAPE SHOALWATER Gonzalez was given the Miranda warnings and placed under arrest.
Appellants were transported aboard the CAPE SHOALWATER to Miami, Florida and met by Mike Ricciardo, an agent associated with the Florida Joint Task Group. Lieutenant Albright introduced the two people from the JUAN CARLOS pointing out Gonzalez as the owner and Lopez as the operator. Appellant Gonzalez responded, Agent Ricciardo then interviewed both Lopez and Gonzalez.
At trial, Lopez testified that a customer named Carlos requested him to go to Bimini to repair the JUAN CARLOS. He would be paid $500.00 for the job. Carlos made all the travel arrangements and once in Bimini Lopez found that the propellers on the JUAN CARLOS were broken and the boat would have to be towed to Miami to be fixed. Lopez never attempted to start the engines because "the whole boat would fall apart." Lopez testified that he was in Bimini for approximately "two and one-half days, more or less," and both Carlos and Gonzalez were present. Lopez further testified that Gonzalez represented himself as the owner of the JUAN CARLOS I. When asked whether he saw any documents pertaining to ownership of this particular vessel Lopez responded that he saw Gonzalez take out the registration, tear it up and dump it in the water. Lopez stated that Carlos and Gonzalez went to the office together allegedly to rent the BAHAMAS TRANSPORTER to tow the JUAN CARLOS I to Miami. Lopez testified that while both he and Gonzalez started on board the JUAN CARLOS I, Gonzalez jumped to the tugboat so that he could watch the tow rope during the course of the trip. Lopez testified that Gonzalez instructed him to remain on board the JUAN CARLOS I to keep a leak under control by bailing out water.
Apparently as a surprise to most participants, Lopez also testified that Gonzalez had the engine key with him in jail and that he threw it between the bench and the wall of the cellblock while they were being held for a bond hearing. After Lopez testified that Gonzalez threw the key between the bench and the wall in the cellblock, the Assistant United States Attorney made a motion to reopen the government's case and for a recess asking that the Marshal take the attorney defending Lopez, himself and Agent Ricciardo to where this key was allegedly hidden. Agent Ricciardo found the key, turned toward the door and Gonzalez spontaneously uttered, "The Coast Guard put that there." The key fit the ignition of the JUAN CARLOS I.
Appellant Gonzalez took the stand and testified that a "Fernando" contracted him to take approximately forty-eight quarts of oil to Bimini for which he would receive payment of one thousand dollars. Gonzalez testified that he borrowed the JUAN CARLOS I from a friend, Alfonso Majera, and Fernando operated the vessel to Bimini. He further testified that Alfonso Majera was the registered owner of the vessel. At the entrance of Bimini Harbor the boat ran aground and Gonzalez testified that arrangements were made for him to return to Miami aboard the BAHAMAS TRANSPORTER. Gonzalez testified that he was never aboard the JUAN CARLOS I on the journey back to Miami. He boarded the BAHAMAS TRANSPORTER from the inception of the trip in Bimini. Gonzalez was arrested aboard the BAHAMAS TRANSPORTER en route to Miami.
Gonzalez met Lopez for the first time in Bimini. He testified that he saw Lopez and another man put something on the boat and "something seemed suspicious." He testified that the only time he saw Lopez after the arrest was at the Metropolitan Correctional Center (MCC) where Lopez told him that he was going to implicate Gonzalez because he hadn't been given a bond, and his family had not received money. Gonzalez said that he had nothing to do with a bond for Lopez and never offered him any money to testify on his behalf. Gonzalez testified that Lopez said, "I am going to get you into trouble."
Gonzalez denied tearing up the registration and hiding the key to the vessel in the cellblock. Gonzalez testified that he gave both the key to the JUAN CARLOS I and the certificate of registration to Fernando who intended to buy the boat. Both Lopez and Gonzalez denied having any knowledge of cocaine on board the JUAN CARLOS I.
Appellant Gonzalez contends that the district court abused its discretion in denying his repeated motions for severance pursuant to Fed.R.Crim.P. 14. 2 Gonzalez argues that the mutually antagonistic defenses presented created prejudice resulting in an unfair trial. We agree.
It is well established that persons who are jointly indicted shall be tried together. United States v. Esle, 743 F.2d 1465, 1476 (11th Cir.1984). This rule applies with particular force to conspiracy cases. United States v. Alvarez, 755 F.2d 830, 857 (11th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 274, 88 L.Ed.2d 235 (1985). We will only reverse a district court's denial of severance under Fed.R.Crim.P. 14 for an abuse of discretion, United States v. Magdaniel-Mora, 746 F.2d 715, 718 (11th Cir.1984), and we are reluctant to second guess a district court's decision to deny a motion for severance. Alvarez, 755 F.2d at 857 (citations omitted). Rule 14 requires the district court to balance the right of defendants to a fair trial, absent the prejudice inherent in a joint trial, against the interests of judicial economy and efficiency. United States v. Hewes, 729 F.2d 1302, 1318 (11th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985).
To establish an abuse of discretion, appellant "must demonstrate that without severance he was unable to receive a fair trial and that he suffered compelling prejudice against which the trial court could offer no protection." Magdaniel-Mora, 746 F.2d at 718. (citations omitted). The standard the district court must apply in a case claiming antagonistic defenses is set forth in United States v. Berkowitz, 662 F.2d 1127, 1134 (5th Cir. Unit B 1981). 3 Severance of a defendant is compelled if the defenses are antagonistic and mutually exclusive. "[I]f the jury, in order to believe the core of the testimony offered on behalf of that defendant, must necessarily disbelieve the testimony offered on behalf of his co-defendant," severance is compelled. In that situation, the co-defendants "become the government's best witnesses against each other." Id. at 1134. "Ultimately, the test is whether the defendant received a fair trial." Id.
The record discloses that the defenses asserted by Lopez and Gonzalez were irreconcilable and mutually exclusive. Lopez incriminated Gonzalez at every opportunity. Lopez testified that he saw Gonzalez tearing up the registration for the boat. He testified that while he and Gonzalez were in the cell awaiting the bond hearing he saw Gonzalez hide the key of the JUAN CARLOS I between the bench and the wall. He later told his lawyer who told the Assistant U.S. Attorney, the Marshal and Agent Ricciardo the place that Lopez had designated and the...
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