U.S. v. Magdaniel-Mora, MAGDANIEL-MOR

• Court: U.S. Court of Appeals — Eleventh Circuit
• Writing for the Court: Before RONEY and VANCE, Circuit Judges, and SIMPSON; VANCE; SIMPSON
• Citation: 746 F.2d 715
• Decision Date: 13 November 1984
• Docket Number: MAGDANIEL-MOR,H,No. 83-5008
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rubenenny Dekom, Ibrahim Nunez, Francisco Vicente-Leon and Felix Calvo-Castillo, Defendants-Appellants.

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746 F.2d 715 UNITED STATES of America, Plaintiff-Appellee,
v.
Ruben MAGDANIEL-MORA, Henny Dekom, Ibrahim Nunez, Francisco
Vicente-Leon and Felix Calvo-Castillo,
Defendants-Appellants. No. 83-5008. United States Court of Appeals,
Eleventh Circuit. Nov. 13, 1984.

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Dennis G. Kainen, Asst. Federal Public Defender, Miami, Fla., for Magdaniel-Mora and Dekom.

Raymond J. Takiff, Coconut Grove, Fla., for Nunez.

Roberto Martinez, Linda Collins Hertz, Asst. U.S. Attys., Miami, Fla., for U.S.

Mark King Leban, Miami, Fla., for Vicente-Leon and Calvo-Castillo.

Appeals from the United States District Court for the Southern District of Florida.

Before RONEY and VANCE, Circuit Judges, and SIMPSON, Senior Circuit Judge.

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VANCE, Circuit Judge:

For most people, being stranded for several days aboard a disabled fishing boat in the Gulf of Mexico twenty miles northwest of Grand Cayman Island would constitute a misfortune of epic proportions. ¹ The travails of appellants in this case, however, began in earnest only when a boarding party from the Coast Guard cutter DECISIVE retrieved them from their immobile vessel, the DON CARLOS--along with 12,000 pounds of marijuana.

All five persons found aboard the DON CARLOS were convicted of possessing marijuana on board a United States flag vessel with intent to distribute, in violation of 21 U.S.C. Sec. 955a(a), and of conspiracy to commit the substantive offense in violation of 21 U.S.C. Sec. 955c. United States residents Felix Calvo-Castillo, Francisco Vicente-Leon, and Ibrahim Nunez present the only serious issues for our consideration on appeal. ² We reject their contentions in sequence and therefore affirm the convictions of all appellants.

I. SEVERANCE

Appellants Calvo-Castillo, Vicente-Leon, and Nunez (the severance appellants) protest the district court's denial of their motions for severance from appellants Magdaniel-Mora and Dekom, made once before and repeatedly during trial. They contend that severance should have been granted because Magdaniel-Mora and Dekom asserted a defense irreconcilable with and mutually exclusive of that argued by counsel for the severance appellants in closing argument.

To repeat the familiar, persons indicted together ordinarily should be tried together. United States v. Barnes, 681 F.2d 717, 721 (11th Cir.1982), cert. denied, 460 U.S. 1046, 103 S.Ct. 1447, 75 L.Ed.2d 802 (1983). This court will only review a trial court's refusal to grant a severance under Fed.R.Crim.P. 14 for abuse of discretion. United States v. DeSimone, 660 F.2d 532, 539 (5th Cir. Unit B 1981), cert. denied, 455 U.S. 1027, 102 S.Ct. 1732, 72 L.Ed.2d 149 (1982). To establish an abuse of discretion the defendant 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. United States v. Horton, 646 F.2d 181, 186 (5th Cir. Unit A), cert. denied, 454 U.S. 970, 102 S.Ct. 516, 70 L.Ed.2d 388 (1981); United States v. Crawford, 581 F.2d 489, 491 (5th Cir.1978). This circuit recognizes that the assertion of antagonistic defenses may satisfy this test, but to do so the defenses must be irreconcilable and mutually exclusive. Crawford, 581 F.2d at 491. In other words, "the essence of one defendant's defense [must be] contradicted by a co-defendant's defense." United States v. Berkowitz, 662 F.2d 1127, 1134 (5th Cir. Unit B 1981).

Applying these principles, we conclude that the trial court did not abuse its discretion in denying the motions for severance. The severance appellants' defense, which consisted solely of counsels' closing arguments, ³ was a claimed absence of evidence

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sufficient to demonstrate to the jury beyond a reasonable doubt that appellants possessed the marijuana or that they knew of or participated in a conspiracy to possess the marijuana with intent to distribute. They argued that the government had shown only their presence aboard a vessel twenty miles off Grand Cayman Island, in other parts of which vessel marijuana was found to have been secreted. ⁴

After the government rested, appellants Magdaniel-Mora and Dekom took the stand to testify in their own defense. They admitted that they knew of the DON CARLOS' contents before the marijuana was discovered by the Coast Guard. They testified, however, that they innocently boarded the boat at the behest of one El Chino Ramos off the Colombian coast, Magdaniel-Mora as a helmsman and Dekom as an electrician. According to them, the severance appellants were already aboard the DON CARLOS, and the five appellants sailed north for several days before losing power and drifting several more days until they were spotted and picked up by the Coast Guard. They testified that, upon discovering the ship's cargo, they asked to be returned to South America, but the severance appellants refused to do so. Both Magdaniel-Mora and Dekom asserted that the severance appellants pressured them until Magdaniel-Mora agreed to falsely identify himself to the Coast Guard as the DON CARLOS' captain, and that the true captain was Vicente-Leon.

We acknowledge that Magdaniel-Mora and Dekom, in pursuing their defense, introduced evidence damaging to the severance appellants. The severance appellants, however, must show more than that separate trials would have strengthened their chances for acquittal, United States v. Walker, 720 F.2d 1527, 1533 (11th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984); they must satisfy the court that "the essence of [their] defense is contradicted by a co-defendant's defense." Berkowitz, 662 F.2d at 1134. The severance appellants' defense was one simply of a lack of sufficient evidence upon which to convict. Although Magdaniel-Mora's and Dekom's testimony tended to implicate the severance appellants in a marijuana importation and distribution scheme, it did not require the jury, even if it believed all the testimony, to reject the severance appellants' argument of inadequate evidence. The jury was not logically compelled, upon accepting Magdaniel-Mora's and Dekom's testimony as true, to find that the severance appellants possessed the marijuana, knew of or participated in a conspiracy to possess the marijuana, or intended to distribute the marijuana.

This case thus is unlike United States v. Crawford, 581 F.2d 489 (5th Cir.1978), and United States v. Johnson, 478 F.2d 1129 (5th Cir.1973), the only two cases we have discovered in this or any other circuit in which an appellate court has reversed a

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conviction for failure to grant a severance due to antagonistic defenses. In Crawford each defendant in a prosecution for illegal possession of an unregistered sawed-off shotgun denied ownership of the firearm and claimed that the other defendant owned it. As this court noted, "[t]he sole defense of each was the guilt of the other." 581 F.2d at 492. Logically, then, acceptance of one defense required rejection of the other.

In Johnson the appellant in a counterfeiting suit asserted the defense that he was not present when the crime was committed. His co-defendant admitted his own presence and testified that the appellant was there as well, apparently to bolster his defense that he was merely seeking to catch the appellant and a third person in a criminal act and that he thus lacked the requisite intent to defraud. 478 F.2d 1131-33. If the jury accepted the co-defendant's testimony that the appellant was at the scene of the crime, it necessarily had to reject the appellant's sole defense to the charges against him.

Here, in contrast, the severance appellants relied simply on the jury's capacity to find that the government had failed to prove its case, and the jury retained that capacity even if it accepted the testimony of Magdaniel-Mora and Dekom. ⁵ In short, "[t]he jury could have believed both [sets of] defendants' theories of defense." United States v. Stephenson, 708 F.2d 580, 582 (11th Cir.1983).

II. SUFFICIENCY OF THE EVIDENCE

The severance appellants also join forces to contest the sufficiency of the evidence against them on both the substantive and the conspiracy counts. Counsel for these appellants moved for a judgment of acquittal at the close of the government's case, and the trial court denied the motions. ⁶ As we have noted, the severance appellants introduced no evidence after the government rested. Consequently, our review of the sufficiency of the evidence is restricted to that adduced by the government in its case-in-chief. United States v. Rhodes, 631 F.2d 43, 44-45 (5th Cir. Unit B 1980); United States v. Belt, 574 F.2d 1234, 1236 (5th Cir.1978). Our inquiry is further limited by two additional rules of law: that the evidence and the inferences to be drawn from it must be viewed in the light most favorable to the government, and that the evidence need only be such that a reasonable jury could find appellants guilty beyond a reasonable doubt. United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd, 462 U.S. 358, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983).

Appellants insist that the government's evidence in this case, like that in United States v. Willis, 639 F.2d 1335 (5th Cir. Unit A 1981), establishes no more than their presence on a boat carrying contraband. We disagree. The government's proof, though not overwhelming, was adequate to survive appellants' motions for acquittal.

The government relied primarily on the testimony of boatswain's mate Eugene Garner, a member of the Coast Guard party that boarded the disabled DON CARLOS. At the time of the boarding, all five defendants were gathered near the stern while one worked to revive the vessel's

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engines. Garner proceeded toward the bow of the boat, entering the pilot house. Beyond it was a forward cabin, the entrance to which consisted of a gap in the waist-high wall at the front of the pilot house. As Garner...