U.S. v. Graziano
| Decision Date | 25 July 1983 |
| Docket Number | 81-7657,Nos. 81-7569,s. 81-7569 |
| Citation | 710 F.2d 691 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Bruce GRAZIANO, Sam Ward, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Bruce GRAZIANO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Garland, Nuckolls & Catts, Edward T.M. Garland, Steven H. Sadow, Atlanta, Ga., for Graziano.
Orion Douglass (Court-appointed), Brunswick, Ga., for Ward.
William H. McAbee, Melissa S. Mundell, II, Asst. U.S. Attys., Savannah, Ga., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of Georgia.
Before KRAVITCH, HENDERSON and ANDERSON, Circuit Judges.
Appellants Bruce Graziano and Sam Ward were convicted of several drug-related offenses. 1 After reviewing appellants' several claims of error, we vacate Graziano's conviction and sentence for the offense charged in Count XI under 21 U.S.C.A. Sec. 846 (West 1981) (). We affirm Graziano's other convictions and sentences, and we affirm Ward's convictions and sentences. Our analysis of appellants' principal contentions is detailed below.
Ward argues that the district court erred in not granting his motion for severance under Fed.R.Crim.P. 14. 2 The district court has discretion to grant or deny a Rule 14 motion for severance of defendants, and the district court's judgment will not be overturned in the absence of an abuse of that discretion. United States v. Butera, 677 F.2d 1376, 1385 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 735, 74 L.Ed.2d 958 (1983); United States v. Nickerson, 669 F.2d 1016, 1022 (5th Cir.1982) (Unit B); United States v. Berkowitz, 662 F.2d 1127, 1132 (5th Cir.1981) (Unit B). 3 To prevail on a severance claim, "appellant must demonstrate that he received an unfair trial and suffered compelling prejudice against which the trial court was unable to afford protection." Id. at 1132. We hold that Ward has not demonstrated such compelling prejudice. See United States v. Butera, supra; United States v. Marszalkowski, 669 F.2d 655, 660 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 208, 74 L.Ed.2d 167 (1982).
Ward's specific argument concerning DeLuna v. United States, 308 F.2d 140 (5th Cir.1962), deserves further mention. Ward's co-defendant, Graziano, did not testify at the trial, and Ward's attorney sought to comment on Graziano's silence in closing argument. The district court ruled that the attorney could not comment on Graziano's failure to take the stand. Ward contends that such comment was necessary to contrast Ward's willingness to testify with any inferences of guilt that could be associated with Graziano's unwillingness to testify. Ward cites DeLuna wherein it was stated in dictum:
If an attorney's duty to his client should require him to draw the jury's attention to the possible inference of guilt from a co-defendant's silence, the trial judge's duty is to order that the defendants be tried separately.
DeLuna v. United States, 308 F.2d at 141. 4
As DeLuna has been construed, the defendant's attorney has a clear duty to comment on a co-defendant's silence only when those comments are necessary to avoid real prejudice to the defendant. See United States v. Kopituk, 690 F.2d 1289, 1319 (11th Cir.1982), cert. denied --- U.S. ----, 103 S.Ct. 3542, 77 L.Ed.2d 1391 (1983). Real prejudice occurs only if the defenses offered by the defendant and the co-defendant are antagonistic and mutually exclusive. United States v. Vadino, 680 F.2d 1329, 1336 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1771, 76 L.Ed.2d 344 (1983); United States v. Nakaladski, 481 F.2d 289, 302 (5th Cir.1973), cert. denied, 414 U.S. 1064, 94 S.Ct. 570, 38 L.Ed.2d 469 (1973); United States v. Hyde, 448 F.2d 815, 832 (5th Cir.1971), cert. denied, 404 U.S. 1058, 92 S.Ct. 736, 30 L.Ed.2d 745 (1972); Gurleski v. United States, 405 F.2d 253, 265 (5th Cir.1968), cert. denied, 395 U.S. 981, 89 S.Ct. 2140, 23 L.Ed.2d 769 (1969). DeLuna provides a good example of antagonistic defenses. Each defendant in DeLuna sought to cast total blame for the criminal offense on his co-defendant. 5
In the instant case, the defendants' defenses were not sufficiently antagonistic to require severance. Since Ward's attorney did not need to comment on Graziano's silence to avoid real prejudice to Ward, Ward's attorney did not have a clear duty to comment on Graziano's silence. DeLuna is inapplicable, and we conclude that the district court did not abuse its discretion in denying Ward's motion for severance.
21 U.S.C.A. Sec. 848 defines the offense of engaging in a continuing criminal enterprise. 6 This offense includes the element of obtaining "substantial income." A person is engaged in a continuing criminal enterprise only if he "obtains substantial income or resources" from a continuing series of violations. Graziano argues that the district court's instruction on the "substantial income" element was erroneous. He contends that the instruction authorized the jury to find the element if the drug operations represented substantial anticipated profits to Graziano, while the statute requires a finding that Graziano actually obtained substantial income or resources. For the purpose of evaluating this contention, we assume, but expressly do not decide, that the statute requires the actual receipt of substantial income or resources, and that a defendant who merely engages in drug operations that represent substantial anticipated profits does not fall within the purview of the statute. After reviewing the record, we have concluded that Graziano did not sufficiently object to the use of the phrase "anticipated profits" in the district court's proposed jury instruction. As a result, we must evaluate the instruction given under the "plain error" standard. We conclude that there was no plain error.
Rule 30 of the Federal Rules of Criminal Procedure provides in part:
No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the manner to which he objects and the grounds of his objection.
Fed.R.Crim.P. 30. On this appeal, Graziano assigns as error this part of the district court's jury instruction:
I charge you that the statutory requirement of receipt of substantial income or resources is satisfied if you find that many thousands of dollars changed hands, some of which was received directly by Defendant Graziano as a result of drug trafficking operations that represented substantial, anticipated profit.
Now, the statutory requirement is also met if you find the drug trafficking operations represented substantial, anticipated profits to Defendant Graziano.
Record, vol. 9, at 136.
The following exchange occurred out of the jury's presence at the trial below. Graziano's attorney said that "the income must come from the enterprises alleged in the indictment, not some prior conduct." Id. at 96 (emphasis added). Graziano's attorney then requested "a limiting instruction to the jury to the effect that the jury would not be authorized to find the element of substantial income from any transactions other than the transactions as alleged in the indictment." Id. at 96-97. At that point, the government attorney agreed with Graziano's attorney and the district judge added that "the continuing enterprise could take into consideration other actions on his part; the question of substantial income could not." Id.
Significantly, the district court acceded to Graziano's request for a limiting instruction. The court instructed the jury:
I charge you that the burden is on the Government in this respect to prove beyond a reasonable doubt that the substantial income claimed to have been received by defendant Graziano came from the alleged violations described in the indictment. Mere expenditures by him are not enough unless coupled with proof that the money expended came from the continuing drug violations alleged in the indictment.
Id. at 136. This instruction came from defense counsel's own requests. Compare Record, vol. 2, at 556 (requested instruction) with id., vol. 9, at 136 (actual instruction). See also id. at 129 ().
Applying Rule 30's requirements, we hold that defense counsel's statements do not state distinctly an objection to the instruction's use of the term "anticipated." Nowhere did defense counsel specifically ground his objection to the "substantial income" instruction in the use of the word "anticipated." It is defense counsel's duty to identify a jury instruction's erroneous language. United States v. Spiegel, 604 F.2d 961, 970 (5th Cir.1979), cert. denied, 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980). If Graziano's attorney sought to delete reference to the term "anticipated," this was not made clear from any of his statements. 7 Indeed, his statements indicate that his concern was not directed at anticipated income. Instead, Graziano's attorney evidenced concern about the jury considering income obtained from prior conduct not connected with the offenses charged in the indictment. Record, vol. 9, at 96.
Since Graziano's attorney did not adequately object to the use of the word "anticipated" in the jury instruction, 8 our inquiry on appeal concerns the question whether the instruction constitutes plain error. See United States v. Spiegel, 604 F.2d at 970. Graziano's attorney, to be sure, did object generally to the instruction on substantial income. However, his objection, as we have indicated, centered on the fear that the jury would find Graziano guilty based...
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