U.S. v. Martin, 92-2240
| Decision Date | 04 April 1994 |
| Docket Number | No. 92-2240,92-2240 |
| Citation | 18 F.3d 1515 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. David Joe MARTIN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
David N. Williams (Larry Gomez, U.S. Atty., and Judy A. Patton, Asst. U.S. Atty., on the brief), Las Cruces, NM, for appellee.
Before KELLY, Circuit Judge, BARRETT, Senior Circuit Judge, GODBOLD *, Senior Circuit Judge.
In United States v. Martin, 15 F.3d 943 (1994 WL 38670 (10th Cir. (1994)) (Martin I ), we affirmed the judgment and sentence entered following a jury trial and Martin's conviction of possession with intent to distribute more than 100 kilograms of marijuana in violation of 21 U.S.C. Secs. 841(a)(1), (b)(1)(B), and 18 U.S.C. Sec. 2, and carrying and using a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. Sec. 924(c)(1). We rejected Martin's contention that the discovery of the marijuana was the result of an illegal search and seizure in violation of the Fourth Amendment. We declined to consider, based on an insufficient record on appeal, Martin's contentions that the district court erred in failing to grant a severance of counts and in failing to give his requested jury instruction on Sec. 924(c)(1).
Martin filed a petition for rehearing wherein he requested that we reconsider his contentions that the district court erred in failing to find that: the discovery of the marijuana was the result of an illegal search and seizure, the counts should have been severed, and his proffered instruction on Sec. 924(c)(1) should have been given. Martin represented that he was confused and uncertain with respect to this court's requirements of an appropriate record on appeal.
Thereafter, upon finding of just and reasonable cause, we entered an Order in which we: granted Martin's request that we reconsider the two contentions of error raised on appeal but not addressed in Martin I, i.e., whether the district court erred in failing to grant a severance of counts and in failing to give his proffered instruction on Sec. 924(c)(1); denied Martin's request that we reconsider his contention that the discovery of the marijuana was the result of an illegal search and seizure, having reached the merits on that issue in Martin I; and directed that Martin transmit those portions of the district court's record which he deemed necessary for our review of his severance and instruction contentions.
Martin subsequently submitted Appellant's Supplemental Appendix (Supp.App.) containing the hearing transcript on Martin's motion to sever counts; twenty-three pages of excerpts of trial transcript; and the court's jury instructions. We have carefully reviewed the Supp.App. and now address the two issues on rehearing.
Martin contends that the district court erred in denying his motion for a severance of counts.
Fed.R.Crim.P. 8(a) governing the joinder of offenses provides in part: "Two or more offense may be charged in the same indictment ... if the offenses charged ... are of the same or similar character or are ... parts of a common scheme or plan." Fed.R.Crim.P. 14 governing relief from prejudicial joinder provides in part: "If it appears that a defendant or the government is prejudiced by a joinder of offenses ... in an indictment ... the court may order an election or separate trials of counts...." The decision whether to grant or deny severance is in the sound discretion of the district court and will not be disturbed on appeal unless there is an affirmative showing of abuse of discretion. United States v. Hollis, 971 F.2d 1441, 1456 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1580, 123 L.Ed.2d 148 (1993).
Martin and co-defendant Robert Wood were charged in Count I of possession with intent to distribute more than 100 kilograms of marijuana. Martin was charged in Count II of carrying and using a firearm in relation to a drug trafficking offense. Prior to trial, Martin moved for a severance of counts and Wood moved for a severance of defendants. During a hearing on these motions, Martin argued:
MR. ABRAHAM (Defense Counsel):
We have filed a motion for severance of counts for the reason that with regard to the first count of the indictment, the possession of marijuana with intent to distribute, the evidence, your Honor, that the Government would present is that Mr. Martin was the driver and sole occupant of a vehicle that contained 495 pounds of marijuana in the back end of a camper shell. The evidence with regard to the possession with intent to distribute the marijuana charge would be one that would be ample evidence by the Government to show that Mr. Martin, perhaps, did possess the marijuana with intent to distribute it.
Mr. Martin chooses, your Honor, to not take the stand in connection with that charge. He would rely upon his Fifth Amendment rights. He would require that the Government prove the case against him beyond a reasonable doubt. And therefore, your Honor, would not take the stand in connection with that charge.
However, with regard to the second count of the indictment, that is the possession of the firearm during a drug trafficking offense, he does choose to take the stand. He does choose to take the stand and tell the ladies and gentlemen of the jury that he did not possess the weapon, nor did he carry it or use it for the purpose in a drug trafficking offense.
Our position is, your Honor, then basically what would happen is Mr. Martin would not be able to take the stand in the defense of his case, because I feel certain that the Government would then make inquiry of Mr. Martin during the cross-examination of the charges with regard to the possession with intent to distribute the marijuana. And those are the charges, your Honor, that he wishes to claim his Fifth Amendment privilege on. And that's the basis of my motion.
Following the hearing, the court denied Martin's motion:
... All right, I'll deny the motion to sever the counts and sever the parties. In my discretion and judgment, I think the case can be adequately and properly presented in a joint trial. And I will take every step necessary to protect the rights of the defendants. All rights of the defendants. And I think I can do so in a joint trial. So the motions will be denied.
On the first day of trial, Martin filed a motion in limine requesting that his co-defendant and the government be restricted from asking him any questions "as to any licenses of firearms with regard to Count I of the indictment." (Supp.App., Tab 2 at 4). The court, after observing that "I know of no authority in support of that position," id. at 5, denied the motion. After the government rested, Martin renewed his motions for a severance of counts and motion in limine. Id. at 52. The court denied both motions. Id. at 54. Martin then testified.
After both parties had rested, Martin made the following arguments in chambers:
MR. ABRAHAM:
After the close of all of the evidence, it now appears that the co-defendant was permitted to cross-examine Mr. Martin on Count I of the indictment as well as the Government was able to do that. And based upon those factors, and having filed my motion in limine and the motion to sever the counts of the indictment, we feel that Mr. Martin was prejudiced by these factors for the reason that he was relying upon the Fifth Amendment and his right to not incriminate himself by and through his own mouth, by not taking the stand on Count I of the indictment but was able to present good testimony and testimony that was fruitful with regard to Count II of the indictment. That is, that the gun in question was not his gun, that it was his father's gun and that he was not intending to use it in any way in a drug trafficking offense. And it did not play a role, nor was it an integral part of a drug transaction.
Before the case was submitted to the jury, Martin renewed his motion for a severance of counts and the motion in limine. The court again denied the motions. The jury returned verdicts of guilty on both counts.
Martin contends that the denial of his severance motion "forced [him] to testify at trial and convict himself as to the drug count in an attempt to win an acquittal of the gun count." (Appellant's Opening Brief at 18). Martin further contends that inasmuch as he "had both important testimony to give concerning one count and a strong need to refrain from testifying on the other," id. at 18-19, the district court's refusal to sever the counts deprived him of a fair trial. The government responds that a decision to grant or deny a severance will not be disturbed on appeal absent an affirmative showing of an abuse of discretion; the burden on the defendant in this context is a difficult one; and that inasmuch as the evidence and theories of the two counts were interconnected, the district court did not abuse its discretion in denying Martin's motion to sever Counts I and II.
"The defendant bears a heavy burden of showing real prejudice from the joinder of the two counts." United States v. Holland, 10 F.3d 696, 699 (10th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 739, 126 L.Ed.2d 702 (1994), quoting, United States v. Muniz, 1 F.3d 1018, 1023 (10th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 575, 126 L.Ed.2d 474 (1993). In establishing real prejudice, the defendant must "demonstrate that the alleged prejudice he suffered outweighed the expense and inconvenience of separate trials." United States v. Parra, 2 F.3d 1058, 1063 (10th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 639, 126 L.Ed.2d 597 (1993).
Significantly, Martin does not challenge the sufficiency of the evidence underlying Count II. Martin's contention that he was prejudiced because he wished to remain silent on one...
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