U.S. v. McGuire

• Citation: 608 F.2d 1028
• Decision Date: 26 December 1979
• Docket Number: No. 79-5020,79-5020
• Parties: 5 Fed. R. Evid. Serv. 491 UNITED STATES of America, Plaintiff-Appellee, v. Dennis Edward McGUIRE and Benjamin Rivera, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1028

608 F.2d 1028

5 Fed. R. Evid. Serv. 491

UNITED STATES of America, Plaintiff-Appellee, v. Dennis Edward McGUIRE and Benjamin Rivera, Defendants-Appellants.

No. 79-5020.

United States Court of Appeals, Fifth Circuit.

Dec. 26, 1979.

Rehearing and Rehearing En Banc Denied Feb. 20, 1980.

Michael J. Doddo, Miami, Fla., for McGuire.

Robyn J. Hermann, Asst. Fed. Public Defender, Miami, Fla., for Rivera.

Bruce A. Zimet, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before BROWN, TJOFLAT and GARZA, Circuit Judges.

GARZA, Circuit Judge:

Dennis McGuire and Benjamin Rivera were accused of having taken part in a scheme to sell cocaine along with Leah Skwierc, who pleaded guilty, and Elroy Garcia, who is a fugitive. McGuire and Rivera were tried together, and convicted on each of three counts charged in the indictment: Conspiracy to distribute cocaine, distribution of cocaine, and possession of cocaine with the intent to distribute. ¹

The uncontroverted facts established that McGuire, Rivera, and Skwierc, Rivera's lover, met in a hotel bar with a man they believed to be a heroin dealer named "Nick" on June 19, 1978. "Nick", however, was federal agent Nicholas Zapata. A discussion on the sale of cocaine to him was held. During the meeting, Rivera vouched for Zapata's ability to pay, and volunteered to count the money when the transaction reached fruition. McGuire offered to procure and deliver the drug. The group agreed upon June 22nd as the date of exchange.

On the 22nd Zapata called Skwierc to advise her that he could not perform on that day. She expressed anger. Zapata talked with Rivera on a second call, and he also spoke angrily about the delay, stating that he had his people ready.

On June 23rd the transaction was attempted. Rivera and Skwierc checked into the appointed hotel, taking a room in his As Skwierc counted Zapata's money, their conversation was taped by agents in an adjoining room. She told Zapata that McGuire was the person that she had previously spoken to him about, and that McGuire had a brother in Lima, Peru, who processed cocaine. The tape also contained Skwierc's part of a telephone conversation with McGuire in which she told him the funds were present. It was played to the jury at trial.

name. Rivera remained in it, and Skwierc went to meet Zapata and McGuire in front of the hotel. The group divided there, Zapata and Skwierc going to another hotel room to count the money, and McGuire and several other agents going to obtain cocaine from Garcia.

Skwierc was arrested by Zapata after she finished counting and talking to McGuire. Her purse was searched incident to the arrest, and the key to Rivera's room was discovered. The agents learned from a hotel clerk that the room was registered to Rivera, and it was entered, searched, and Rivera was arrested. He was found partially undressed, lying on the bed with a half-eaten dinner, and watching television. McGuire was arrested when he returned with the drug.

At their joint trial, McGuire moved for severance, both under Byrd v. Wainwright, 428 F.2d 1017 (5 Cir. 1970), and Fed.R.Crim.P. 14. He timely objected to the admission of the taped conversations, arguing they were prejudicial hearsay inadmissible under Fed.R.Ev. 403, and not admissible as a conversation "in furtherance of the conspiracy" under Fed.R.Ev. 801(d)(2). Both motions were denied, and these rulings are assigned to us as error.

McGuire's attempted defense was entrapment. He testified that he was told by his friend Skwierc that she had become involved with the drug dealer, and that he went to the June 19th meeting to extricate her. He testified that once at the meeting he was so intimidated by bellicose statements from Zapata about the potential danger those privy to the dealings were in, that he was compelled to go along in fear of his life. He contends that the alleged errors of the court below set up impermissible road-blocks to the presentation of his entrapment defense.

Rivera moved at trial to suppress any evidence of his presence in the hotel, contending that it was the fruit of an illegal search of his hotel room. The court reserved its decision, and at the close of the evidence ruled the search unlawful. In the interim, Rivera called Skwierc, who attempted to portray his presence at the hotel And at earlier meetings as that of an innocent bystander only accompanying her. He now claims that he was forced to explain his presence at the hotel by the trial court's delay in ruling, supplying the evidence to support his own conviction in denial of his rights to due process and a fair trial. In a separate point Rivera contends the evidence below was insufficient to support the jury's verdict, with or without the testimony of his presence in the hotel. He further assigns as error a comment by the district court that passed-over portions of a tape played to the jury were excluded. In that the prosecutor appeared eager to have the portions played, it is argued that the inference of harmful evidence was raised, denying Rivera due process and a fair trial. He did not, however, raise an objection below.

APPELLANT McGUIRE

The basis of McGuire's Byrd motion for severance was to obtain the testimony of Rivera, in order to bolster McGuire's defense of entrapment. Rivera did not in fact testify for the jury, but only pursuant to the motion.

At that time Rivera testified that on June 19th Zapata did speak of being a heroin dealer, a "big man all over the country." On cross-examination Rivera was asked whether he had any prior conversations with McGuire concerning cocaine. He took the Fifth Amendment and refused to answer. On a third question, whether prior to June 19th he had knowledge of McGuire's involvement with cocaine he answered, "no." Rivera testified that he had difficulty remembering the events of June By this court's decision in Byrd v. Wainwright, supra, criteria were laid out for a determination of the necessity of severance to obtain a co-conspirator's testimony. Among those criteria are affirmative findings that the proferred testimony is exculpatory, on a clear showing of what the co-defendant would testify to, and that the codefendant is in fact willing to testify.

19th and had no understanding as to how McGuire had reacted to agent Zapata.

Here, McGuire failed to meet the exculpatory criteria for several reasons. He made no clear showing as to what his co-defendant would testify to. He also failed to show any nexus between the somewhat confused example of Rivera's testimony, and McGuire's entrapment defense. It was not established that Skwierc or McGuire were threatened by Zapata, or that they entered the transaction due to such fears, or even that such ideas were communicated between the parties. Further, due to Rivera's use of the Fifth Amendment during cross-examination, there was not shown a likelihood that he would have been willing to give exculpatory testimony on a separate trial.

The Byrd court noted that . . . "(I)f the testimony is purely cumulative, or of negligible weight or probative value, the court is not required to sever. The requirement is not a trial which guarantees the defendant every item of evidence he would like to offer, but one which meets the constitutional standards of due process." 428 F.2d at 1021. We find that standard to have been met below and accordingly overrule McGuire's contention that he was entitled to a severance under the authority of Byrd.

McGuire additionally moved for severance under Fed.R.Crim.P. 14. ² He argues that joint trial with Rivera subject him to unfair prejudice by compelling a choice between his constitutional rights to cross-examine adverse witnesses and to call witnesses in his favor.

McGuire has stated that he moved for a severance when he was surprised by Skwierc's guilty plea, and Rivera's calling her to testify for him. Her voir dire testimony had painted him as the primary figure behind the transaction. McGuire continues to assert that Rivera was willing to give exculpatory testimony for him. Thus, he claims that he could not conduct a vigorous cross-examination of Skwierc without risking the ire of Rivera and the loss of his testimony. He did not cross-examine Skwierc.

We view McGuire's choice in a different light. In most joint trials of those accused of participation in a criminal scheme, conflicts involving a choice of tactical alternatives will arise, particularly where different defenses are urged. The appropriate policy, long sanctioned by the decisions of this court, is that persons jointly indicted should be jointly tried, particularly in conspiracy cases. United States v. Kelly, 569 F.2d 928 (5 Cir. 1978). Rule 14, addressing problems of prejudice, involves the tension between that policy and those joinders that result in unfair prejudice. Accordingly, a District Court confronted with a Rule 14 Motion for Severance is required to balance any such prejudice against the interests of judicial economy, a consideration involving substantial discretion. See United States v. McLaurin, 557 F.2d 1064, 1074-5 (5 Cir. 1977). ³

The burden upon an appellant in showing prejudice has aptly been characterized as "heavy." United States v. Lane, 465 F.2d 408, 413 (5 Cir. 1972).

McGuire has shown that he was confronted with a tactical choice. What he has not demonstrated is that joinder compelled him to make the choice of cross-examining Skwierc or not, and thus he has failed to demonstrate any prejudice flowing from denial of the motion. We note that Skwierc's actual testimony before the jury was limited to exculpation of Rivera and involved no significant inculpation of McGuire. Further, even if McGuire were tried separately, Skwierc's testimony would have been within range of the Government's subpoena power. Appellant's motivation in refusing to cross-examine could just as easily have been fear of...