U.S. v. Velasquez

• Citation: 772 F.2d 1348
• Decision Date: 18 October 1985
• Docket Number: 84-1240,84-1263 and 84-1278,Nos. 84-1218,s. 84-1218
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alfonso VELASQUEZ, Ramon Dominguez, Esmerido Galvan Olamendi, Ramon Gomez, and Armando Gomez, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1348

772 F.2d 1348

UNITED STATES of America, Plaintiff-Appellee, v. Alfonso VELASQUEZ, Ramon Dominguez, Esmerido Galvan

Olamendi, Ramon Gomez, and Armando Gomez,

Defendants-Appellants.

Nos. 84-1218, 84-1240, 84-1263 and 84-1278.

United States Court of Appeals, Seventh Circuit.

Argued April 26, 1985.

Decided Sept. 5, 1985.

As Amended Oct. 18, 1985.

G. Roger Markley, Sp. Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Carol A. Brook, Barry A. Spevack, Monico & Pavich, Christine P. Curran, James W Reilley & Assoc., Chicago, Ill., for defendants-appellants.

Before WOOD and POSNER, Circuit Judges, and GRAY, Senior District Judge. ^*

POSNER, Circuit Judge.

The five defendants in a three-week criminal jury trial appeal from their convictions and prison sentences ranging from five to fifteen years. Three groups of crimes were charged, which in chronological order are as follows:

(1) All five appellants were charged with trafficking in cocaine.

(2) Galvan was charged with heroin violations unrelated to any other offenses charged in the indictment.

(3) Galvan, Ramon Gomez, and Velasquez were charged with retaliation and conspiracy to retaliate against two government informants, Estevez and a woman named Campana.

The first group of charges related to an alleged sale of cocaine in Chicago in May 1982. Estevez, the government's principal witness, testified that he met with some of the appellants in Miami to plan the trip and pick up the cocaine. At the meeting was "El Toro," the nom de guerre of a suspected narcotics racketeer. Estevez and two of the appellants (which two is unclear) drove to Chicago with the cocaine, met the other appellants there, and later went to Rockford with the cocaine. Shortly afterward, Estevez, fearing that he was about to be caught by the FBI, became an informant. The government paid him almost $20,000 for his information.

In June 1982 Galvan twice sold heroin to an undercover agent. These sales were the basis of the heroin charges against Galvan. In October 1982 Galvan and Velasquez kidnapped Estevez and Miss Campana and threatened to kill them for having "snitched" on El Toro. They took the two to the apartment of Ramon Gomez, who entered later and asked what was going on. He was told to guard Miss Campana while Galvan and Velasquez took Estevez out, but after a while he let her go. Estevez escaped from his captors by offering to get them more drugs and then slipping away en route.

The case against Galvan for the heroin violations and Galvan and Velasquez for retaliating against Estevez and Campana was very strong, notwithstanding some discrepancies between the stories told by Estevez and Campana. But against Ramon Gomez the evidence of intent to retaliate was extremely weak. The jury acquitted him of aiding and abetting the retaliation but found him guilty of conspiracy to retaliate. To be guilty of conspiracy, though, you must know at least in a general way the object of the conspiracy--its essential nature, see Blumenthal v. United States, 332 U.S. 539, 557, 68 S.Ct. 248, 256, 92 L.Ed. 154 (1947); United States v. Williams, 737 F.2d 594, 614 (7th Cir.1984); United States v. Andolschek, 142 F.2d 503, 507 (2d Cir.1944) (L. Hand, J.)--even if you do not know the details (no self-respecting conspiracy encourages candor, even with its own members) and did not join till the conspiracy was under way. There was no evidence that Ramon Gomez knew why he was to hold Miss Campana. The government asks us to infer that he knew why from the fact that the object of the conspiracy was to punish Estevez and Campana for having snitched on the cocaine dealings that were the subject of the first group of charges, in which Ramon Gomez had participated along with the other appellants; but we shall see that there is no evidence that retaliation for informing on those dealings was one of the objects of the conspiracy.

The evidence of cocaine violations was also weak. The cocaine itself never turned up, and the only witness--to the meeting in Miami, the trip to Chicago, the meetings there and in Rockford, and finally the sale itself also in Rockford--was Estevez. A highly paid informant who had become an informant only when he thought he was about to be caught for his own narcotics dealings, which apparently were extensive, Estevez gave contradictory testimony on such questions as whether he himself was a drug user and which two of the appellants he had driven to Chicago with, and he told several seemingly tall tales on the stand such as that he had floated to the U.S. from Cuba on an inner tube which he propelled by ping pong paddles. The only corroboration of his testimony about the cocaine was by government agents who had seen cars matching descriptions given by him at an address in Rockford where he said the conspirators had met. Since he did not come to the FBI till after the cocaine sale, he was not wired for sound or otherwise under surveillance that might have confirmed his testimony.

We nevertheless disagree with the appellants that no reasonable jury could have found them guilty of the cocaine charges. The testimony of one eyewitness, even if he is a member of the criminal class and has no intrinsic credibility, is enough to convict in the absence of contrary evidence, or of contradictions graver than those shown here; and there was some, though slight, corroboration. Nevertheless the weakness of the cocaine charges--and appellants Dominguez and Armando Gomez were charged with no other crimes--requires us to consider with particular care the appellants' principal argument, which is that they should not have been indicted and tried together for all of the offenses charged.

When a group of people are charged with participating in the same crime, they ordinarily are tried together even if the evidence is stronger against one or some than against others. The danger of prejudice to the least guilty, or perhaps prejudice to all from the sheer confusion of a multidefendant trial, is in all but the most unusual circumstances considered outweighed by the economies of a single trial in which all facets of the crime can be explored once and for all. See, e.g., United States v. Cavale, 688 F.2d 1098, 1106 (7th Cir.1982); United States v. Garza, 664 F.2d 135, 143 (7th Cir.1981); cf. United States v. Perry, 731 F.2d 985, 990 (D.C.Cir.1984). Although questioned in some quarters, see, e.g., Dawson, Joint Trials of Defendants in Criminal Cases: An Analysis of Efficiencies and Prejudices, 77 Mich.L.Rev. 1379 (1979), this position is too firmly established to be reconsidered by us. But of course the government's right of joinder is not unlimited; its outer bounds are set by Rule 8 of the Federal Rules of Criminal Procedure, and we must consider whether those bounds were exceeded.

Rule 8(a) allows the government to charge in the same indictment two or more offenses by the same defendant if the offenses "are of the same or similar character," and Rule 8(b) allows charging in the same indictment two or more offenders "if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." But the government may not tack the two subsections together and in one indictment charge different persons with committing offenses of "similar character." 8 Moore's Federal Practice Sec. 8.06, at pp. 8-25 to 8-26 (2d ed. 1985). That would allow true "mass trials," unless the court exercised its power under Rule 14 to sever, for trial, offenses or offenders joined in one indictment if a joint trial would be prejudicial to the defendant(s) or (rarely) the government. In practice, severe prejudice is required for an order of severance and the trial judge's refusal to sever is rarely reversed. See, e.g., United States v. Gironda, 758 F.2d 1201, 1220 (7th Cir.1985); United States v. Moschiano, 695 F.2d 236, 245-46 (7th Cir.1982); United States v. Warner, 690 F.2d 545, 554 (6th Cir.1982); United States v. Johnson, 478 F.2d 1129, 1131 (5th Cir.1973) ("a defendant has an extremely difficult burden of showing on appeal that the lower court's action was an abuse of discretion"). But this is because, given Rule 8, severance under Rule 14 ordinarily is sought in cases where the offenses and offenders are linked together in a single conspiracy, so that there are substantial economies from a joint trial; if there were no Rule 8, requests for severance under Rule 14 would be received more hospitably. Cf. United States v. Echeles, 352 F.2d 892, 896 (7th Cir.1965).

The first question is whether the acts charged in the indictment are "the same series of acts or transactions constituting ... offenses," for if not, we do not get to the question whether severance was required by Rule 14 because of prejudice. They would be the same series of acts (the exact same acts, as a matter of fact) if the government had joined the appellants in a single indictment charging sale of and conspiracy to sell cocaine, which was all one conspiracy, or if it had just joined Galvan, Ramon Gomez, and Velasquez in an indictment charging retaliation against Estevez and Miss Campana, another conspiracy. The question is whether the government could properly combine both groups of charges, along with the heroin charge against Galvan, in the same indictment.

This depends on the meaning of "same series of acts or transactions." The usual meaning is acts or transactions that are pursuant to a common plan or common scheme, see, e.g., United States v. Cavale, supra, 688 F.2d at 1106; United States v. Scott, 413 F.2d 932, 935 (7th Cir.1969); United States v. Lane, 735 F.2d 799, 805 (5th Cir.1984), cert. granted, --- U.S. ----, 105 S.Ct. 1167, 84 L.Ed.2d 318 (1985), which is to say (in the usual case) that the acts or transactions are parts of a single conspiracy, see id. So viewed, Rule 8(b) codifies the long-standing practice of trying...