U.S. v. Matthews

• Decision Date: 04 June 1999
• Docket Number: No. 98-50055,98-50055
• Citation: 178 F.3d 295
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey MATTHEWS, Michael Cook, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 295

178 F.3d 295

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey MATTHEWS, Michael Cook, Defendants-Appellants.

No. 98-50055.

United States Court of Appeals,

Fifth Circuit.

June 4, 1999.

Joseph H. Gay, Jr., U.S. Atty., Michael Robert Hardy, San Antonio, TX, for U.S.

John Aloysius Convery, Harsdorff & Convery, San Antonio, TX, for Matthews.

Edward Camara, Jr., San Antonio, TX, for Cook.

Appeals from the United States District Court for the Western District of Texas.

Before JONES, DUHE and BARKSDALE, Circuit Judges.

DUHE, Circuit Judge:

A jury convicted Jeffrey Matthews ("Matthews") and Michael Cook ("Cook") of carjacking pursuant to 18 U.S.C.A. § 2119 (West Supp.1999), conspiracy to commit carjacking pursuant to 18 U.S.C.A. § 371 (West Supp.1999), and using or carrying a firearm during a carjacking pursuant to 18 U.S.C.A. § 924(c) (West Supp.1999). The Defendants make the following six arguments on appeal: (1) their antagonistic defenses and the introduction of the redacted statement of the other required a severance; (2) 18 U.S.C.A. § 2119(2) is an element of carjacking rather than a sentence enhancement statute; (3) 18 U.S.C.A. § 521 is a separate offense rather than a sentence enhancement statute; (4) the testimony of F.B.I. Agent Walter Henry during the sentencing phase was inadmissible hearsay; (5) the testimony of a gang expert was not based on reliable methodology in violation of Daubert; and (6) the government presented insufficient evidence of gang activity to support Matthews' sentence enhancement under § 521. We vacate in part, remand in part for re-sentencing and affirm the Defendants' convictions.

BACKGROUND

On March 2, 1995, Matthews, Cook, and two others followed Terrie Dittman ("Dittman") driving home in her new van. After she pulled into her driveway, Matthews pointed a gun at Dittman through the driver's side window and demanded her car. When Dittman attempted to flee by backing out of the driveway, Matthews shot the gun into her car five times hitting her several times and wounding her. Upon hearing the shots, Cook drove away leaving Matthews at the scene. Matthews stole another car from the neighborhood to escape.

Later that evening, the group reunited at the apartment of Pam Douglas and Teana Williams. Douglas and Williams testified Matthews bragged to the others that he shot a woman in an attempt to steal her van. The police apprehended Cook the next day while he and Matthews were driving the car Matthews had stolen the previous night. The police recovered the gun used in the shooting. Ultimately, the police apprehended Matthews as well.

The Defendants were tried jointly. Each Defendant accused the other of shooting Dittman. Matthews claimed he was innocently driving the car when the shooting occurred, while Cook claimed he innocently sat in the back seat when the shooting occurred. Neither Defendant testified at trial. The government offered the Defendants' redacted post-arrest written statements containing these accusations at trial. In Matthews' statement, all references to Cook were stricken, and in Cook's statement, all references to Matthews were stricken as well. The officers who took their statements read them aloud at trial substituting the word "blank" for any stricken name or pronoun. Each Defendant's lawyer elicited the stricken name of the non-speaking Defendant when cross examining the officer reading the statement. The Defendants moved unsuccessfully for severance and for a mistrial.

A jury convicted both of carjacking pursuant to 18 U.S.C.A. § 2119 (West Supp.1999), conspiracy to commit carjacking pursuant to 18 U.S.C.A. § 371 (West Supp.1999), and using or carrying a firearm during a carjacking pursuant to 18 U.S.C.A. § 924(c) (West Supp.1999). The district court enhanced Matthews' carjacking sentence pursuant to 18 U.S.C.A. § 2119(2) (West Supp.1999) because he inflicted serious bodily injury upon Dittman, and enhanced his conspiracy to commit carjacking sentence under the criminal street gangs statute, 18 U.S.C.A. § 521 (West Supp.1999). The Defendants appeal.

DISCUSSION

I. Severance

Appellants argue the district court abused its discretion in denying their motions for severance. They contend the admission of the other's statement violated their Sixth Amendment right to confront witnesses. See Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 1155, 140 L.Ed.2d 294 (1998); Bruton v. United States, 391 U.S. 123, 126, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Cook also contends their antagonistic defenses required a severance. The government counters that the district court did not abuse its discretion because it was guided by the law in effect at the time of trial, and Gray was not decided until after the Defendants were tried. Alternatively, the government argues any error in denying a severance was harmless or invited error. Finally, the government contends that a severance is not automatically required when co-defendants present antagonistic defenses, and that, on closer examination, the Defendants' defenses are not mutually exclusive.

District court may grant a severance "[i]f it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together." Fed.R.Crim.P. 14. We review the denial of severance for an abuse of discretion. See United States v. Pofahl, 990 F.2d 1456, 1483 (5th Cir.1993). To prevail, "a defendant must show that he suffered specific and compelling prejudice against which the district court could not provide adequate protection, and that this prejudice resulted in an unfair trial." United States v. Mitchell, 31 F.3d 271, 276 (5th Cir.1994). However, we must also balance the possibility of prejudice against the interest of judicial economy. See United States v. Posada-Rios, 158 F.3d 832, 863 (5th Cir.1998).

A. Antagonistic Defenses

Because each Defendant's defense strategy was to implicate the other, Cook argues he was prejudiced by Matthews' attorney's efforts to convict Cook in defending Matthews. Cook contends he was "facing an extra prosecutor" in Matthews' attorney which resulted in severe prejudice requiring a severance. United States v. Romanello, 726 F.2d 173, 179 (5th Cir.1984). Considering the interest of judicial economy, Cook also argues that trying only two defendants separately would not have been very time consuming. See Schaffer v. United States, 221 F.2d 17, 19 (5th Cir.1955).

Severance is not automatically required when co-defendants present mutually antagonistic defenses. See United States v. Zafiro, 506 U.S. 534, 538-39, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (holding Rule 14 does not require severance even if prejudice is shown leaving the tailoring of relief granted to the district court's discretion); United States v. Mann, 161 F.3d 840, 863 (5th Cir.1998). The government argues the district court's limiting instructions were sufficient to cure any prejudice caused by the Defendants' mutual accusations. The government also asserts the Defendants' defenses are not truly mutually exclusive and that, assuming their accusations are true, the Defendants would still have been subject to criminal liability as aiders or abetters.

Assuming without deciding that the Defendants' defenses were mutually antagonistic, the court's limiting instructions were sufficient to cure any prejudice. See Mann, 161 F.3d at 863 (holding where defendants present antagonistic defenses, instructions to consider the evidence as to each defendant separately and individually, and not to consider comments made by counsel as substantive evidence, cure any prejudice caused when co-defendants accuse each other of the crime) (quoting United States v. Stouffer, 986 F.2d 916, 924 (5th Cir.1993)); United States v. Castillo, 77 F.3d 1480, 1491 (5th Cir.1996) (stating determinations concerning risk of prejudice resulting from antagonistic defenses must be left to discretion of district court to give weight to rule that persons indicted together be tried together in conspiracy cases). The district court instructed the jury:

A separate crime is charged against one or more of the defendants in each count of the indictment. Each count, and the evidence pertaining to it, should be considered separately. Also, the case of each defendant should be considered separately and individually. The fact that you may find one or more of the accused guilty or not guilty of any crime charged should not control your verdict as to any other crime or defendant. You must give separate consideration to the evidence as to each defendant.

Of course, any such statement [claimed to have been made by a defendant outside of the court] should not be considered in any way whatsoever as evidence with respect to any other defendant on trial. With respect to answers to questions posed by counsel for Defendants, you are to disregard the mention in any out-of-court statement allegedly made by one defendant in the name of another defendant in this case.

Because "mutually antagonistic defenses are not prejudicial pre se" and "Rule 14 leaves the determination of risk of prejudice and any remedy that may be necessary to the discretion of the district courts", we hold the district court did not abuse its discretion in denying Matthews a severance. Zafiro, 506 U.S. at 541, 113 S.Ct. 933.

B. Redacted Statements

Each Defendant argues the introduction of the other's redacted statement prejudiced him severely therefore requiring a severance. They rely on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (holding that the confession of a non-testifying co-defendant is admissible only against himself and only if it does not implicate the other defendant) and Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 1155, 140 L.Ed.2d 294 (1998) (holding that a redaction that replaces a defendant's name with an obvious indication of deletion, such as a blank space, still...