U.S. v. Miranda
| Decision Date | 17 April 2001 |
| Docket Number | No. 98-11183,98-11183 |
| Parties | (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROSALINDA MIRANDA, ABEL ESPINOZA, RIGOBERTO RODRIGUEZ, also known as Rigo, OSCAR RODRIGUEZ, HECTOR ESPINOZA, also known as Toro, Defendants-Appellants |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Northern District of Texas.
Before KING, Chief Judge, REYNALDO G. GARZA, and PARKER, Circuit Judges.
Rosalinda Miranda, Abel Espinoza, Rigoberto Rodriguez, Oscar Rodriguez, and Hector Espinoza appeal their convictions and sentences for drug related offenses. We affirm all the convictions, affirm the sentences of Rosalinda Miranda, Abel Espinoza, Rigoberto Rodriguez, and Hector Espinoza, vacate Oscar Rodriguez's sentence, and remand his case for resentencing.
A large-scale investigation by the Federal Bureau of Investigation ("FBI") and the Dallas Police Department into the distribution of cocaine and marijuana in the Dallas, Texas area led to a nineteen-count federal indictment against twenty-one individuals. The indictment alleged, in pertinent part, that from May 1996 until June 1997, Appellants (1) conspired to possess with the intent to distribute marijuana, cocaine, and cocaine base, in violation of 21 U.S.C. 856; (2) distributed or possessed cocaine and cocaine base in violation of 21 U.S.C. 841; and (3) used a telephone to facilitate the distribution of cocaine and cocaine base. Appellants, all related to one another by blood or marriage, sold drugs primarily out of crack houses or "trap" houses. They did a high volume of small quantity sales, typified by "dime rocks" of cocaine -- $10 rocks with an estimated weight of .125 grams.
Appellants were jointly tried, along with Roberto Garcia, in July 1998. After a two-and-a-half-week trial, the jury returned a verdict acquitting Garcia and finding the remaining defendants (Appellants) guilty on all counts. The district court overruled Appellants' objections to the Pre-Sentence Investigation Reports ("PSRs") prepared by the United States Probation Office, adopted the PSRs' findings and sentencing recommendations and sentenced Appellants as follows:
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Defendant Off.Level/Crim.Hist U.S.S.G.Range Count:Sentence
_______________________________________________________________________
_______________________________________________________________________
Rosalinda Miranda 41/I324-4051: 364 months
18: 48 months
_______________________________________________________________________
Abel Espinoza 38/I235-293 1: 235 months
11: 48 months
14: 48 months
_______________________________________________________________________
Rigoberto Rodriguez 38/I235-2931: 240 months
2: 240 months
_______________________________________________________________________
Oscar Rodriguez 38/II 262-327 1: 262 months
6: 240 months
_______________________________________________________________________
Hector Espinoza 41/I 324-405 1: 364 months
17: 48 months
20: 48 months
_______________________________________________________________________
DISCUSSION
Rosalinda Miranda moved to sever her trial from the trial of her co-defendants claiming that the other defendants could raise defenses inconsistent and antagonistic to her own, and that she would be prohibited from calling them as witnesses. She also stated that she would be prejudiced by the spillover effect of evidence incriminating her co-defendants. The government filed a response, arguing that joinder was permitted under Federal Rules of Criminal Procedure 8 and 14. The district court denied the motion, finding that Rosalinda Miranda had not demonstrated compelling prejudice or shown that a limiting instruction would not protect her interests. We review the district court's denial of severance for abuse of discretion. Zafiro v. United States, 506 U.S. 534, 539 (1993).
We have noted that "persons indicted together should be tried together, especially in conspiracy cases." United States v. Neal, 27 F.3d 1035, 1045 (5th Cir. 1994) (citations omitted). However, separate trials should be granted when "there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro, 506 U.S. at 539.
We are not convinced that Rosalinda Miranda suffered undue prejudice as the result of spillover of evidence offered against her co-defendants. The district court clearly instructed the jurors to give separate consideration to the evidence as to each defendant. The jury is presumed to have been able to follow these instructions and, indeed, its finding of "not guilty" as to Garcia demonstrates the validity of that presumption. Neal, 27 F.3d at 1045 ().
Likewise, we find no merit in Rosalinda Miranda's claim that she was prejudiced by being denied the opportunity to challenge statements made in taped phone conversations because her co-defendants did not take the stand at trial. While not entirely clear, Rosalinda Miranda appears to be claiming that, had she been able to cross-examine her co-defendants, they would have testified that she was not the "Rosa" that was mentioned in the phone conversations. To warrant severance based on the exculpatory testimony of a co-defendant, a defendant must show "(1) a bona fide need for the testimony; (2) the substance of the testimony; (3) its exculpatory nature and effect; and (4) that the co-defendant would in fact testify if the severance were granted." United States v. Nutall, 180 F.3d 182, 187 (5th Cir. 1999) (citing United States v. Broussard, 80 F.3d 1025, 1037 (5th Cir. 1996)). Rosalinda Miranda failed to show that any of her co-defendants would have in fact testified at her trial if severance were granted or that their testimony would have been exculpatory.
We conclude that the district court did not abuse its discretion in denying Rosalinda Miranda's motion for severance.
Appellants challenge the district court's admission of evidence in two separate instances during trial. We review evidentiary rulings for abuse of discretion. See United States v. Parsee, 178 F.3d 374, 379 (5th Cir. 1999).
At trial, the government introduced the testimony of Gracie Martinez, who testified that she had bought drugs from Abel Espinoza sometime "around 1989, 1990, 1991." Abel Espinoza objected, arguing that the government had failed to make the necessary pretrial disclosures regarding the introduction of evidence of Abel Espinoza's prior bad acts, and that the testimony concerned events prior to the dates of the indicted conspiracy.
The district court admitted the evidence, finding that Martinez's testimony was background information and therefore not subject to Federal Rule of Evidence 404(b). In the alternative, the district court determined that the probative value of the evidence outweighed its possible prejudice and that the evidence went to intent and was thus admissible under Rule 404(b). See United States v. Beechum, 582 F.2d 898 (5th Cir. 1978).
On appeal, Abel Espinoza focuses solely on whether the testimony can withstand a Beechum analysis, arguing that the government failed to inform him of its intention to present extrinsic evidence of his prior bad acts and that Martinez's testimony resulted in undue prejudice. Abel Espinoza also claims that the district court did not adequately articulate its Beechum analysis findings and that the limiting instruction was inadequate to protect his rights.
Abel Espinoza does not address the district court's decision that Martinez's testimony constituted intrinsic background information and therefore Rule 404(b)'s limits on admissibility of extrinsic acts did not apply. Evidence of other acts is intrinsic "when the evidence of the other act and the evidence of the crime charged are inextricably intertwined or both acts are part of a single criminal episode or other acts were necessary preliminaries to the crime charged." United States v. Williams, 900 F.2d 823, 835 (5th Cir. 1990)(internal quotation marks omitted). In United States v. Wilson, 578 F.2d 67 (5th Cir. 1978), this court held that evidence of a drug transaction that was not part of the crime charged was nonetheless admissible as intrinsic evidence because it "was part of the background facts surrounding the commission of the crime." Id. at 72. The court noted that the evidence was not submitted to show the defendant's proclivity towards crime, but to complete the witness's account of his various dealings with the defendants. Id. We conclude that the district court did not abuse its discretion in viewing Martinez's testimony about her earlier drug purchases from Abel Espinoza as background information establishing the connection between a witness and a defendant. United States v. Aleman, 592 F.2d 881, 884 (5th Cir. 1979).
FBI Special Agent Amado Vega-Irizarry ("Vega") testified...
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