U.S. v. Hernandez, 86-1339

• Decision Date: 22 September 1987
• Docket Number: No. 86-1339,86-1339
• Citation: 829 F.2d 988
• Parties: 24 Fed. R. Evid. Serv. 67 UNITED STATES of America, Plaintiff-Appellee, v. Jesus John HERNANDEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 988

829 F.2d 988

24 Fed. R. Evid. Serv. 67

UNITED STATES of America, Plaintiff-Appellee, v. Jesus John HERNANDEZ, Defendant-Appellant.

No. 86-1339.

United States Court of Appeals Tenth Circuit.

Sept. 22, 1987.

Richard J. Banta and Richard N. Stuckey, Denver, Colo., for defendant-appellant.

William D. Welch, Asst. U.S. Atty., Mountain States Drug Task Force (Robert N. Miller, U.S. Atty., Dist. of Colorado, with him on the briefs), for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, and SEYMOUR and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant was convicted in a jury trial of distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) (Counts I, II, and III,) conspiracy to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (Count IV), and management of a continuing criminal enterprise (CCE) in violation of 21 U.S.C. Sec. 848 and 18 U.S.C. Sec. 2 (Count VIII). Defendant was sentenced to fifteen years in prison on Count VIII; five years on Count I (to run consecutively to Count VIII); ten years on Count II (to run concurrently with Count VIII); and ten years on Count III (to run consecutively to Count VIII). No additional sentence was imposed for the conviction on Count IV, as it was deemed merged with Count VIII. Defendant appeals his conviction on several bases, contending that the district court erred (1) in denying his motion to sever Count VIII, (2) in granting the government's application for a wiretap, or alternatively, in denying his motion for disclosure of the identity of informants referred to in the affidavit in support of the wiretap application, (3) in failing to hold a James hearing, United States v. James, 590 F.2d 575 (5th Cir.), cert. denied, 442 U.S. 917, 99 S.Ct. 2836, 61 L.Ed.2d 283 (1979), before trial began and in finding the statements of alleged co-conspirators admissible, (4) in denying his motion for judgment of acquittal and dismissal of the indictment, and (5) in refusing to admit evidence of threats against the defendant made after his arrest. For the reasons set forth below, we reject each of the defendant's contentions and affirm the judgment of the trial court.

Defendant-appellant Hernandez was indicted on October 10, 1984, with 44 other defendants for his participation in and control of a drug trafficking organization. Defendant was not taken into custody until February 6, 1985, but a majority of his co-conspirator defendants were arraigned in October, 1984. On January 7 and 8, 1985, hearings were held by the district court concerning the validity of the wiretap placed on defendant's telephone. His co-defendants' motions to suppress the evidence derived from the wiretap were denied by the district court on January 21, 1985. On February 4, 5, 6 and 7, 1985, the district court held pretrial hearings to determine the admissibility of co-conspirators' statements. These hearings involved a majority of the defendants in the case, but not defendant. On February 11, 1985, the district court ruled that the government had sustained its burden and that the co-conspirators' statements would be admissible at the trial of the defendants then present in court pursuant to Fed.R.Evid. 801(d)(2)(E).

On October 8 and 9, 1985, defendant's pretrial motions to suppress wire interceptions and alternatively to disclose the identity of informants referred to in the affidavit in support of the wiretap application, to sever the CCE count, and for a pretrial hearing on the admissibility of co-conspirators' statements came on for hearing before the district court. All the motions were denied with the exception of defendant's request for a pretrial hearing to determine the admissibility of co-conspirators' statements, which was apparently deferred until trial.

On October 21, 1985, plea negotiations with the defendant terminated upon his written rejection of the government's oral proposal suggesting that he enter a plea of guilty to Count VIII of the indictment in exchange for the dismissal of the remaining counts. On October 28, the defendant failed to appear for a bond hearing, and on November 4, he failed to appear for trial. Defendant was apprehended on December 13, 1985, and his trial was rescheduled for January 6, 1986. The defendant's motion to dismiss the indictment on the ground that the government failed to comply with an alleged plea agreement was denied by the trial court on January 3, 1986. On January 9, 1986, the trial court granted the government's motion to exclude post-indictment evidence unrelated to the defendant's guilt or innocence with respect to the crimes charged in the indictment.

A jury trial was held from January 13 through January 23, 1986. On January 24, the jury returned guilty verdicts as outlined above. On February 6, 1986, the trial court heard testimony on defendant's motion for judgment of acquittal notwithstanding the verdict, which was based on defendant's position that the government breached a plea agreement with him. The court denied the motion, and defendant was sentenced on February 28, 1986. The judgment and commitment order was entered March 3, 1986, and defendant filed his notice of appeal that same day.

Defendant first contends that the trial court erred in refusing to sever Count VIII from the remaining counts. Defendant asserts that he was unfairly prejudiced by the court's refusal to sever because the testimony he wished to give in his defense of Count VIII might tend to incriminate him on the various other counts. We disagree.

The decision to grant a severance is left to the sound discretion of the trial court, and we will not reverse such a decision in the absence of a strong showing of prejudice. United States v. Valentine, 706 F.2d 282, 289-90 (10th Cir.1983). "The burden of the defendant to show an abuse of discretion in this context is a difficult one." Id. at 290. Also, the mere fact that defendant might have a better chance at acquittal if the charges are tried separately is not sufficient to require severance. Id.

This court, in Valentine, adopted the guidelines set forth in Baker v. United States, 401 F.2d 958 (D.C.Cir.1968), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970), to be used in balancing the rights of the defendant against economical judicial administration.

"[N]o need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information--regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other--to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of 'economy and expedition in judicial administration' against the defendant's interest in having a free choice with respect to testifying."

Valentine, 706 F.2d at 291 (quoting Baker, 401 F.2d at 977).

We initially note some concern as to the sufficiency of the defendant's showing regarding the nature of the desired testimony. Defendant's affidavit, which accompanied his motion to sever, simply stated his belief that he had a valid defense to Count VIII, the fact that he might testify as to Count VIII, and his belief that the testimony given as to Count VIII would incriminate him as to the other counts. Rec. vol. I, Doc. 17. Likewise, at the hearing on the motion to sever, counsel for defendant simply reiterated that he felt it would be necessary for defendant to testify as to Count VIII, and that his testimony might implicate him on the remaining counts. Rec. vol. XV at 109-113. Defense counsel cryptically noted that defendant's testimony would have to do with the substantial income and supervisory capacity aspects of the CCE charge. Id. at 113. Defendant thus made no attempt to outline or detail his proposed testimony in conjunction with his motion to sever.

"An accused should show the specific testimony he will present about one offense, and his specific reasons for not testifying about others, to justify severance." United States v. Bronco, 597 F.2d 1300, 1303 (9th Cir.1979). We do not feel that the ambiguous references to defendant's proposed testimony in this case were sufficient to enable the trial court to determine the extent of the possible prejudice to defendant, and to intelligently weigh the prejudice against the consideration of judicial economy. See United States v. Forrest, 623 F.2d 1107, 1115 (5th Cir.), cert. denied, 449 U.S. 924, 101 S.Ct. 327, 66 L.Ed.2d 153 (1980).

Defendant next contends that the district court erred in failing to suppress evidence gained through use of a wiretap on his phone. Defendant asserts that the initial granting of the application for a wiretap was erroneous because the government failed to make an adequate showing that traditional investigative procedures had failed, were unlikely to succeed, or were too dangerous as contemplated by 18 U.S.C. Secs. 2518(1)(c) ¹ and (3)(c). ² Defendant also asserts that the government failed to properly minimize the intercepted calls as required by 18 U.S.C. Sec. 2518(5). ³ As an alternative to the above contentions, defendant argues that the district court erred in not disclosing the identity of the informants referred to in the affidavit supporting the wiretap application.

The issue as to the propriety of the wiretap on defendant's phone, as well as the minimization issue, were specifically dealt with by a panel of this court in United States v. Apodaca, 820 F.2d 348, 350 (10th Cir.1987). The defendant in Apodaca challenged the same wiretap on the same grounds set forth by defendant in this case. The panel in Apodaca noted that Sec. 2518(1)(c) does not "force the government to exhaust all other conceivable investigative procedures before resorting to wiretapping." Id. The panel concluded that,...