U.S. v. Talavera

• Decision Date: 14 January 1982
• Docket Number: Nos. 80-1481,80-1486,s. 80-1481
• Citation: 668 F.2d 625
• Parties: 9 Fed. R. Evid. Serv. 1055 UNITED STATES of America, Appellee, v. Ramon Eli Barreto TALAVERA, Appellant. UNITED STATES of America, Appellee, v. Tomas Reyes PENA, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 625

668 F.2d 625

9 Fed. R. Evid. Serv. 1055

UNITED STATES of America, Appellee, v. Ramon Eli Barreto TALAVERA, Appellant.

UNITED STATES of America, Appellee, v. Tomas Reyes PENA, Appellant.

Nos. 80-1481, 80-1486.

United States Court of Appeals,

First Circuit.

Argued Oct. 6, 1981.

Decided Jan. 14, 1982.

Scott Kalisch, San Juan, P. R., for appellant Ramon Eli Barreto talavera.

Harry Anduze Montano, Santurce, P. R., for appellant Tomas Reyes Pena.

Carolyn L. Gaines, Atty., Dept. of Justice, Washington, D. C., with whom Raymond L. Acosta, U. S. Atty., San Juan, P. R., was on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and WYZANSKI, ^* Senior District Judge.

COFFIN, Chief Judge.

This case raises a series of issues concerning the joint trial of two defendants for their roles in cocaine transactions in late July, 1979. After reviewing each of the defendants' arguments, we are persuaded that the convictions should be affirmed.

The evidence at trial consisted largely of the testimony of paid informant Carmen Vega Collazo, the testimony of Drug Enforcement Administration Agent James Rivera, and a videotape and audiotape that had recorded transactions within Vega's apartment. A fair evaluation of that evidence would allow a jury to draw the following conclusions.

At about 9 p. m. on Saturday, July 28, 1979, appellant Tomas Reyes Pena made a telephone call to informant Vega. He told her he had some good cocaine and would bring her a sample if she could provide a buyer. She arranged for undercover agent Rivera to pose as a buyer. At about 11 p. m., Reyes and Jose Antonio Ortiz delivered the sample to Vega's apartment. Reyes said that he would call back on Monday to arrange for the sale of the two ounces of cocaine from which the sample was taken. On Monday he called to say that his supply had been held up and he could not make it until Tuesday.

At about 10 p. m. on Tuesday, July 31, Reyes came to Vega's apartment, accompanied by appellant Ramon Eli Barreto Talavera and Barreto's wife. Reyes showed Vega the two ounces of cocaine and weighed it on a scale that Vega had set out on her living room table. Barreto then moved the two ounces off the scale and weighed two packages of cocaine that he had removed from his shoulder bag. He spent a substantial amount of time meticulously weighing and bagging the drug. The packages weighed one-eighth kilogram (4.4 ounces). Since Agent Rivera had not yet arrived, Reyes, Barreto, and Barreto's wife left to deliver the one-eighth kilogram to someone else. After they returned, Agent Rivera arrived. He sat down at the table and weighed the two ounces of cocaine on the scale and then gave $3,200 to Vega, who in turn gave it to Reyes. Vega then went into the bedroom and brought out some heroin. She showed it to the agent, who suggested that Reyes try some. Reyes told her to show it to Barreto "because he likes it". Barreto walked over to the table and sampled the heroin by bending over and inhaling it through his nose ("snorting"). He walked away from the table, and then returned for a second "snort". After further discussion, the meeting broke up. ¹

At trial, three counts were presented to the jury. The first count charged Reyes with aiding and abetting, possession, and distribution of the sample of cocaine on July 28, ² in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a) (1). The second count charged both appellants with aiding and abetting each other, possessing, and distributing the two ounces of cocaine purchased by Agent Rivera on July 31, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a) (1). The third count charged Barreto with possessing with intent to distribute the one-eighth kilogram of cocaine on July 31, in violation of 21 U.S.C. § 841(a)(1). The jury found Reyes guilty of counts one and two, and Barreto guilty of counts two and three.

Appellants ask us to reverse the trial court for the following reasons:

1. Both appellants claim that the trial court should have severed their trials and should have suppressed all testimony and evidence regarding Barreto's sampling of the heroin.

2. Barreto claims prejudice in sentencing because the presentence report contains an allegedly unsupported assertion.

3. Reyes contends that the U.S. Attorney failed to disclose exculpatory evidence, that the evidence against him was insufficient, that he was denied effective assistance of counsel, and that he was sentenced arbitrarily and mechanistically.

We respond to these contentions in that order.

Both defendants contend that they should not have been tried together in a single proceeding. First we review whether they were properly joined as a matter of law under Fed.R.Crim.P. 8(b). Rule 8(b) permits joinder of the three different counts if we conclude that the delivery of the sample on July 28, the distribution of two ounces on July 31, and the possession of one-eighth kilogram on July 31 were part of "the same series of facts or transactions constituting an offense or offenses". ³

This circuit has written at length concerning the standards applied in determining what constitutes a single "series of acts or transactions". See, e.g., United States v. Luna, 585 F.2d 1 (1st Cir. 1978); United States v. Martinez, 479 F.2d 824 (1st Cir. 1973); King v. United States, 355 F.2d 700 (1st Cir. 1966). A series means something more than similar acts. King v. United States, supra, 355 F.2d at 703. The reason is that Rule 8(b) strikes a compromise between each defendant's right to have his own guilt considered separately and the presumptive practical benefit to the government and the court of a consolidated proceeding. United States v. Martinez, supra, 479 F.2d at 827-28. To protect the defendant's rights,

"this possibility of benefit should explicitly appear from the indictment or from other representations by the government before trial. Classic examples of such a benefit are when there is an overlapping of issues, ... or when defendants are charged with conspiracy to conceal a crime that part of their number are charged with committing...." King v. United States, 355 F.2d at 704.

We have no difficulty in concluding that the cluster of cocaine-related acts at issue in this case were a single "series of acts or transactions". The delivery of the sample on Saturday was a prelude to the delivery of the two ounces on Tuesday. Evidence of either transaction would undoubtedly have been admissible in a separate trial based on the other one, in order to prove the defendants' intent to distribute. And the evidence used to prove the delivery of two ounces on Tuesday was virtually inseparable from the evidence used to prove that Barreto possessed an additional one-eighth kilogram with intent to distribute it. The practical benefit to the court and government of a consolidated proceeding is undeniable.

Given proper joinder, we are asked to find that the trial court erred in denying severance under Fed.R.Crim.P. 14. ⁴ Severance motions are addressed to the sound discretion of the trial judge, and their denial will be reviewed only for abuse. United States v. Smolar, 557 F.2d 13, 21 (1st Cir. 1977). Appellants contend that the trial judge abused his discretion because they planned to present antagonistic defenses, viz., Barreto planned to argue that he had nothing to do with the two ounces of cocaine, that it belonged only to Reyes, and that he was being prosecuted only because he had associated with such a bad man. It is well settled that "antagonistic defenses do not per se require severance, even if the defendants are hostile or attempt to cast the blame on each other". United States v. Davis, 623 F.2d 188, 194 (1st Cir. 1980), quoting United States v. Becker, 585 F.2d 703, 707 (4th Cir. 1978), cert. denied, 439 U.S. 1080, 99 S.Ct. 862, 59 L.Ed.2d 50 (1979). Severance is required only where the conflict is so prejudicial and the defenses are so irreconcilable that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty. Id. Here, Reyes did not deny that he possessed the cocaine; he only denied distributing it and having that intent. Barreto denied both possession and intent to distribute. These defenses become irreconcilable only if Barreto is allowed to make the further allegation that Reyes intended to distribute the cocaine. The trial court upheld Reyes's objections to any attempt to make such argument. Whatever minor conflicts may have existed between the defendants' approach to the case, they have not made the "strong showing of prejudice" necessary to show an abuse of discretion by the trial court. See United States v. Richman, 600 F.2d 286, 299 (1st Cir. 1979).

Next, both appellants challenge the trial court's decision to admit into evidence the testimony regarding the heroin episode, and the portions of video and audio tapes portraying that episode. ⁵ At trial, Barreto preserved this issue by objection to Vega's testimony about heroin. The court's denial of his motion made it clear that any similar objection to the relevant portions of the tapes would have been futile. The appellants suggest that the evidence was relevant not to any material issue, but only to showing that Barreto was a bad person who knew about using drugs. They note that the government is not permitted to use evidence of bad acts to show that someone has a bad character, from which to infer a propensity to commit the crime with which he is charged. Fed.R.Evid. 404(b). ⁶ See Tigges v. Cataldo, 611 F.2d 936, 938 (1st Cir. 1980). They argue further that whatever legitimate relevance the evidence may have had was substantially outweighed by its unfair prejudicial effect.

We begin with the issue of relevance under Fed.R.Evid. 401, 402. We cannot agree that the heroin transaction had absolutely no relevance to a material issue in the case. Barreto's defense was based upon the argument that he was an innocent bystander during the distribution of...