U.S. v. McClure, s. 83-1525

• Citation: 734 F.2d 484
• Decision Date: 09 May 1984
• Docket Number: 83-1547,Nos. 83-1525,s. 83-1525
• Parties: 15 Fed. R. Evid. Serv. 1667 UNITED STATES of America, Plaintiff-Appellee, v. Walter H. McCLURE and Anthony Tafoya, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 484

734 F.2d 484

15 Fed. R. Evid. Serv. 1667

UNITED STATES of America, Plaintiff-Appellee, v. Walter H. McCLURE and Anthony Tafoya, Defendants-Appellants.

Nos. 83-1525, 83-1547.

United States Court of Appeals, Tenth Circuit.

May 9, 1984.

William L. Lutz, U.S. Atty., Albuquerque, N.M. (Larry Gomez, Asst. U.S. Atty., Albuquerque, N.M., with him on briefs), for plaintiff-appellee.

Sarah Michael Singleton, Santa Fe, N.M. (John Higgins of Higgins & Lee, Albuquerque, N.M., with her on brief), for defendant-appellant McClure.

Martha A. Daly, Santa Fe, N.M., and Timothy M. Padilla, Albuquerque, N.M. (Michael Alarid, Jr., Albuquerque, N.M., with him on brief), for defendant-appellant Tafoya.

Before SETH, Chief Judge, and BARRETT and McKAY, Circuit Judges.

BARRETT, Circuit Judge.

Walter H. McClure (McClure) and Anthony Tafoya (Tafoya) appeal from a judgment entered upon a jury verdict by the United States District Court for the District of New Mexico. The jury found both men guilty of possession of cocaine with the intent to distribute, and of distribution of cocaine, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. A review of the necessary facts will facilitate our consideration of this appeal.

In 1982, the Albuquerque Police Department and the New Mexico State Police were involved in an ongoing undercover investigation regarding unlawful drug trafficking by one Larry Candelaira. In November of that year, Candelaria contacted Detective Don Smith of the Albuquerque Police Department who was acting undercover as a person interested in purchasing cocaine. Candelaria and Smith agreed to meet at Albuquerque's Kettle Restaurant on November 15, 1982, in order to discuss further a possible cocaine transaction.

On that day, Smith and New Mexico State Police Narcotics Agent Gilbert Baca went to the Kettle to wait for Candelaria. Approximately thirty-five minutes later, Candelaria arrived in his Oldsmobile, followed by a Mercedes-Benz driven by McClure. Tafoya was also in McClure's vehicle.

Tafoya and Candelaria met with Smith and Baca in the restaurant while McClure waited outside in his car. During this time, two other surveillance officers saw McClure go to the trunk of his car where he retrieved a package which he apparently placed under the driver's seat. Smith, upon exiting the Kettle with Candelaria, asked him why he had brought Tafoya and McClure. Candelaria responded, "Well, you wanted to meet the main man," while pointing to McClure.

The parties determined that the deal should take place at Tafoya's apartment. At the apartment complex, McClure carried a plastic sack from his car to Tafoya's apartment. Once inside, McClure placed the package on the kitchen table and then sat in a rocking chair across the room.

The package contained cocaine, which Tafoya invited Smith to inspect. When Smith questioned the cocaine's low selling price of $25,000, Tafoya explained that they were just trying to "get rid of it." Tafoya handed Smith a small package of "uncut Peruvian flake," a particularly high-quality cocaine. Smith asked Tafoya about the price of a kilo of this cocaine, to which McClure, sitting across the room, replied, "$83,000."

Smith instructed Baca to go outside to their vehicle for the $25,000 to purchase the cocaine. Candelaria left shortly after Baca and was arrested while attempting to flee the scene. Baca then returned with other officers; McClure and Tafoya were arrested. A handgun, in plain view, was taken from McClure's automobile and later a three-ounce Baggie of cocaine was seized from the car pursuant to a search warrant.

On appeal, McClure and Tafoya present various joint and individual allegations of error. Both men argue that the district court abused its discretion by refusing to grant a severance, by denying their motion to discover, and by refusing a requested jury instruction. Tafoya also argues separately that the court abused its discretion by denying his motion for a bill of particulars. McClure maintains individually that the court abused its discretion by refusing to allow a particular witness to testify because of the witness's presence in the courtroom in violation of the sequestration rule.

I. Severance

McClure and Tafoya contend that the trial court abused its discretion by denying their motion for severance. Both defendants were properly joined pursuant to Fed.R.Crim.P. 8(b) as they were "alleged to have participated in the same act or transaction ... constituting an offense." They argue, however, that the district court should have utilized its discretionary power to order separate trials under Fed.R.Crim.P. 14 because of the inherent and actual prejudice attaching to their joint trial.

To establish that a trial court abused its discretion by denying a defendant's request for severance, a defendant must show that actual prejudice resulted from the denial. United States v. Long, 705 F.2d 1259, 1263 (10th Cir.1983). McClure and Tafoya point to several factors which allegedly constituted such prejudice.

Initially, both defendants maintain that the defenses presented by them were "directly antagonistic," and "mutually exclusive." They claim that Tafoya's defense rested upon the guilt of McClure and McClure's defense depended upon the guilt of Tafoya. They argue that this scenario forced each defendant to accuse the other of criminal conduct, that these defenses were, hence, irreconcilable, and that the jury unjustifiably inferred guilt from this conflict.

We have held, however, that one defendant's attempt to cast blame on the other is not in itself a sufficient reason to require separate trials. United States v. Calabrese, 645 F.2d 1379, 1384 (10th Cir.1981), cert. denied, 451 U.S. 1018, 101 S.Ct. 3008, 69 L.Ed.2d 390 (1981); United States v. Ready, 574 F.2d 1009, 1015 (10th Cir.1978). We have also held that severance is not required simply because separate trials might have offered a better chance for acquittal to one or more of the accused. United States v. Calabrese, supra at 1385; United States v. Knowles, 572 F.2d 267, 270 (10th Cir.1978). Clearly, mere conflicting defenses do not, standing alone, constitute the showing of prejudice necessary for judicial severance. This court has indicated, however, that irreconcilable defenses may require that defendants be tried separately. United States v. Calabrese, supra. Noting that we have never specifically defined or found such defenses, McClure and Tafoya rely heavily upon United States v. Crawford, 581 F.2d 489 (5th Cir.1978), and United States v. Johnson, 478 F.2d 1129 (5th Cir.1973) as cases demonstrating "irreconcilable and mutually exclusive defenses mandating severance."

In Crawford, two defendants were charged with joint possession of a sawed-off shotgun recovered from an automobile in which both defendants were riding at the time of their arrest. Defendant Blanks testified that Crawford owned the shotgun; Defendant Crawford testified that Blanks owned the firearm. In reversing the district court's decision denying the defendants' motion to sever, the Fifth Circuit held:

This record discloses that the defenses asserted by Blanks and Crawford were irreconcilable as well as mutually exclusive. The sole defense of each was the guilt of the other. Blanks incriminated Crawford and exculpated himself at every opportunity. Crawford, on the other hand, attempted to show that he was not culpable because Blanks alone had possession of the firearm. Each was the government's best witness against the other.

581 F.2d at 491-92 (emphasis added).

It is highly significant, in our view, that the Crawford court based its finding of "irreconcilable defenses" upon a close review of the record. The court did not rest upon a mere abstract allegation, but examined the record for an actual showing of prejudice stemming from the assertion of irreconcilable defenses.

In Johnson, the Fifth Circuit made a similar review of the record in search of a demonstration of prejudice. Johnson involved the conviction of one Johnson and one Smith for violating federal laws involving the passing of counterfeit Federal Reserve notes. Johnson denied being present when the crime charged was committed. Smith, however, relying upon a defense that he lacked the necessary mens rea, confessed that he and Johnson had passed the notes. The court, in holding that Johnson was entitled to a separate trial, noted the following:

A study of the record reveals that Smith's attorney implicated Johnson at every opportunity. Moreover, Smith's confession was introduced with no deletions of the incriminating statements concerning Johnson. When Smith took the stand, he affirmed his out-of-court statement and also took every available opportunity to further incriminate Johnson as a generally bad person and as the prime mover in the counterfeit transaction. In sum, Smith was the government's best witness against Johnson.

478 F.2d at 1133 (emphasis added).

Assuming arguendo that McClure and Tafoya presented, in theory, "irreconcilable and mutually exclusive" defenses, ¹ a review of the record reveals little, if any, actual prejudice.

McClure asserts that "the antagonism between the two defendants was nowhere more apparent than in Mr. Tafoya's objection to Mr. McClure's explanation of the ownership of the handgun which was seized from the automobile." Brief of Appellant McClure at 10. The government sought to introduce this gun on the theory that it was present in the car to offer protection for the cocaine. (R., Vol. VII at 91.) McClure explained that he did not own the gun and attempted to explain that Tafoya's business partner, Ralph Villegas, had told him that the gun was his. (Id. at 36.) At this point, both Tafoya and the government objected. The court ruled that McClure could develop the subject of Villegas's ownership of the gun, but not through inadmissible hearsay. (Id. at 37.) McClure later attempted to call Villegas to testify, but the court...