U.S. v. Stotts, 85-4681
| Decision Date | 26 June 1986 |
| Docket Number | No. 85-4681,85-4681 |
| Citation | 792 F.2d 1318 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Michael Jeffrey STOTTS, James Poole, Jack Segura, and Wilfred Fabiano, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Julie Ellen Cullen, (court-appointed), Opelousas, La., for Poole.
Ceceila Ann Bonin, (court-appointed), New Iberia, La., for Segura.
Patricia A. Thomas, (court-appointed), Abbeville, La., for Fabiano.
Jack T. Edmund, Bartow, Fla., for Stotts.
Joseph S. Cage, U.S. Atty., Dosite H. Perkins, Asst. U.S. Atty., Shreveport, La., for plaintiff-appellee.
Appeals from the United States District Court for the Western District of Louisiana.
Before WILLIAMS, JOLLY and HIGGINBOTHAM, Circuit Judges.
Michael Stotts, Jack Segura, James Poole, and Wilfred Fabiano were convicted on several counts of extortion in violation of 18 U.S.C. Sec. 876, and an additional count of conspiracy to commit extortion in violation of 18 U.S.C. Secs. 371, 2. Appellants claim that a number of motions for severance were improperly denied, a motion for mistrial was improperly denied, evidence was improperly admitted during the trial, and the jury was improperly instructed. Finding no merit in any of these claims, we affirm the convictions.
In November 1983, the four appellants were inmates of the St. Martin Parish jail in St. Martinville, Louisiana. Stotts had been sent to this jail after being convicted of escaping from a federal facility. In December 1983, Stotts was transferred to another facility. The other appellants (the codefendants) remained in the St. Martin jail.
Each of the jurors in Stotts' escape trial received a letter, all but one postmarked December 28, 1983 from Lafayette, Louisiana. 1 The letters read substantially as follows:
Hey [name]:
Just a brief line to let you know that you unjustly convicted--at a recent trial--one of our comrades--for which you will be justly reimbursed with a death sentence to be carried out by another of our members as soon as possible unless you send to the below address $1,000--in cash--promptly! There will be no second letter or warning--your life is your choice--chose [sic]!
If you notify the FBI the deal is off and you're dead!
Needless to say, this was far from the most foolproof extortion scheme ever devised. Segura, Poole, and Fabiano signed all of the extortion letters. The return address on the letters was the St. Martin Parish jail. Because all incoming mail is inspected by jail authorities, it would of course have been impossible for the extortionists to collect $1,000 if anyone mailed it to them.
Although Stotts did not sign any of the extortion letters, the testimony indicated that he was the instigator of the crime. During the voir dire in Stotts' escape trial, the judge asked the jurors their names and addresses. Several jurors noticed Stotts writing down this information. Two inmates who served time with Stotts testified that Stotts bragged about his cleverness in devising the extortion plan. A cellmate of Stotts named Dillingham explained that, "[Stotts] said that he wrote approximately six or seven of the letters ... he was laughing and [he said] I conned these three idiots in the county jail and told them if they wanted to get some federal time, to write these letters and threaten these jurors, but wait until after I had already gone and that way it would look like I didn't have anything to do with it." An inmate named Culp testified that Stotts boasted to him about the extortion plot and how Stotts could not be connected to it. Stotts apparently conceived this plan because he believed that his conviction for escape would be overturned on appeal, and, in his mind, juror intimidation would make his conviction on retrial less probable.
An indictment against the four appellants was returned in April 1985. Count I charged all appellants with conspiracy in violation of 18 U.S.C. Secs. 371 and 2 to violate 18 U.S.C. Sec. 876, the substantive extortion statute, in that they conspired to send threatening letters through the United States mail for the purpose of extorting money from former jurors. Counts II through VIII charged all appellants with various violations of 18 U.S.C. Sec. 876 by engaging in the substantive crime of extortion through use of the mails. The four appellants were tried together.
Stotts twice moved for a severance before trial and severance was denied. He alleged that if he was tried jointly with the other three defendants, he would be deprived of his right to call them as witnesses. Stotts also contended that his defense was mutually antagonistic to the defense of his codefendants. At a pretrial hearing on the motion, the three codefendants refused to answer any questions, asserting their Fifth Amendment privileges. Fabiano also moved for severance prior to trial. He argued that he was charged with signing only three of the letters, and that Stotts was the "moving force and main actor." The district court denied this motion as well.
At a pretrial conference the prosecutor told defense counsel that the government had information that Stotts planned to disrupt the trial and try to escape by using the three female defense counsel as hostages. In response, special security precautions were taken. A marshall was stationed at each of the courtroom exits. The defendants were required to sit at a table about six feet behind their counsel. Defense counsel and the government lawyers all sat at the same table while all the defendants sat together at the separate table.
During the third day of trial, Stotts became involved in an altercation with one of the marshalls. Stotts was removed from the courtroom, kicking and cursing. Once outside the courtroom, the disturbance continued within hearing of the jury. After Stotts had settled down, the judge reprimanded Stotts outside of the presence of the jury. The judge then instructed the jury to disregard Stotts' outburst.
The jury returned a guilty verdict on all counts against all of the appellants. The court sentenced Stotts to a total of fifteen years. Segura was given a ten year sentence, Fabiano, an eight year sentence, and Poole, a sentence of five years. The court ordered Stotts' sentence to run consecutively after the federal sentence he was serving, and the sentences of the others to run consecutively after the state sentences they were serving.
Appellants contend the district court erred in denying the motions for severance of Stotts' trial from the trial of the other codefendants. Prior to trial, Stotts moved for severance alleging that he wanted to call the codefendants as witnesses in his trial. Fabiano moved for severance contending that Stotts was the "main actor" in the extortion plot. After the disturbance by Stotts in the courtroom, the codefendants moved for severance from Stotts. Stotts and the codefendants also moved for severance on the ground that their defenses were mutually antagonistic. All motions were denied. All of the appellants assert that the district court erred in denying the various motions for severance.
The general rule is that "[p]ersons indicted together should normally be tried together." United States v. Romanello, 726 F.2d 173, 177 (5th Cir.1984). F.R.Crim.P. 14 provides an exception to this general rule:
If it appears that a defendant ... is prejudiced by a joinder of ... defendants ... for trial together, the court may ... grant a severance of defendants or provide whatever other relief justice requires.
The decision whether to sever lies within the sound discretion of the district court, and is reviewable only for an abuse of discretion. United States of Berkowitz, 662 F.2d 1127, 1132 (5th Cir.1981). "To establish an abuse of discretion, a defendant must show that he received an unfair trial and suffered compelling prejudice against which the trial court was unable to afford protection." Romanello, 726 F.2d at 177.
We reject the claim that severance was improperly denied because the defenses of Stotts and the codefendants were mutually antagonistic. In order to compel severance on the theory that defenses are mutually antagonistic, the defense of one party, if believed, must necessarily indicate the guilt of the other party. Id; see also Berkowitz, 662 F.2d at 1133 (). Even taking a charitable view of the defenses in this case, 2 each party merely argued that he was not guilty because he was unaware of the plot. No defendant made any allegations that another defendant was guilty. In fact, such an allegation would be inconsistent with the defense that each party knew nothing about the scheme. It would be consistent with all of the defenses to find that none of the appellants were guilty, and that this plot was the dastardly idea of unidentified inmates who framed the appellants. The appellants were clearly not entitled to severance on the theory that their defenses were mutually antagonistic. See United States v. Sheikh, 654 F.2d 1057 (5th Cir.1981), cert. denied, 455 U.S. 991, 102 S.Ct. 1617, 71 L.Ed.2d 852 (1982) ().
Stotts' contention that he was deprived of his ability to call the other codefendants as his witnesses at trial is likewise without merit. Counsel for all parties stipulated that if called to testify all of the codefendants would refuse to testify by invoking their Fifth Amendment privileges. Fabiano's motion for severance on the ground that Stotts was the main actor in the conspiracy is equally meritless, because a party does not have a right to severance merely because a codefendant is more culpable then he. United States v. Johnson, 713 F.2d 633, 640 (11th Cir.1983), cert....
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