U.S. v. Zafiro

• Decision Date: 26 September 1991
• Docket Number: 89-3639,89-3660 and 89-3729,Nos. 89-3520,s. 89-3520
• Citation: 945 F.2d 881
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gloria ZAFIRO, Jose Martinez, Salvador Garcia, and Alfonso Soto, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 881

945 F.2d 881

60 USLW 2298

UNITED STATES of America, Plaintiff-Appellee, v. Gloria ZAFIRO, Jose Martinez, Salvador Garcia, and Alfonso Soto, Defendants-Appellants.

Nos. 89-3520, 89-3639, 89-3660 and 89-3729.

United States Court of Appeals Seventh Circuit.

Argued June 14, 1991.

Decided Sept. 26, 1991.

Mark A. Flessner (argued), Ava M. Gould, Patricia B. Holmes, Barry R. Elden, Asst. U.S. Attys., Office of the U.S. Atty., Crim., Receiving, Appellate Div., Chicago, Ill., for U.S.

Thomas J. Royce, Chicago, Ill., for Zafiro.

Steven R. Decker (argued), Chicago, Ill., for Martinez.

Joseph Abraham, Jr., Charles L. Roberts, El Paso, Tex., Kent R. Carlson (argued), Pomper & Associates, Chicago, Ill., for Garcia.

Kenneth L. Cunniff (argued), John F. Murphy, Office of the Federal Public Defender, Chicago, Ill., for Soto.

Before POSNER, MANION and KANNE, Circuit Judges.

POSNER, Circuit Judge.

The four defendants were tried together by a jury for offenses involving cocaine and other illegal drugs, and all were convicted. Jose Martinez was sentenced to 262 months in prison and the three other defendants--Alphonso Soto, Salvador Garcia, and Gloria Zafiro--to 151 months each even though the jury had acquitted Zafiro of possession with intent to distribute and convicted her only of participating in, or aiding and abetting, conspiracy. The verdict does not distinguish between actual participation on the one hand and aiding and abetting on the other. At first glance it might seem odd that there could be (as the cases hold there can be, United States v. Galiffa, 734 F.2d 306 (7th Cir.1984)) separate crimes of conspiracy and of aiding and abetting a conspiracy--for would not the act of aiding and abetting make the aider and abettor a member of the conspiracy? Not necessarily. Suppose someone who admired criminals and hated the police learned that the police were planning a raid on a drug ring, and, hoping to foil the raid and assure the success of the ring, warned its members--with whom he had had no previous, or for that matter subsequent, dealings--of the impending raid. He would be an aider and abettor of the drug conspiracy, but not a member of it. United States v. Lane, 514 F.2d 22 (9th Cir.1975). For the essence of conspiracy is agreement, and there is none in our hypothetical case.

Of the issues raised by the defendants on appeal only two have sufficient merit to warrant discussion. The first is whether the judge should have granted the motions of Martinez, Soto, or Garcia for severance of their trials; the second is whether a reasonable jury could have found Zafiro guilty beyond a reasonable doubt. The government's case was simple. The three male defendants were acquaintances and Zafiro was Martinez's girl friend. The defendants operated a business of distributing illegal drugs at two locations--Zafiro's apartment in Cicero, Illinois, and Soto's bungalow-with-detached-garage in Chicago. One day, government agents followed Soto and Garcia as they transported a large box in Soto's car from Soto's garage to Zafiro's apartment. The agents identified themselves as they followed the two up the stairs to the apartment. Soto and Garcia dropped the box and ran into the apartment, closely followed by the agents, who found all four defendants in the living room. The box contained 55 pounds of cocaine. Another 20 pounds were found in a suitcase in a closet in Zafiro's apartment and in a car in Soto's garage. The car was registered to another girl friend of Martinez's; he had given the car to her as a present but she had never used it.

The basis of the motions for severance by Soto and Garcia was that their defenses were mutually antagonistic. Soto testified that he didn't know anything about any drug conspiracy: Garcia had asked him for a box and he had given it to him; he didn't discover what was in it until it was opened when they were arrested. Garcia did not testify but his lawyer argued in closing argument that it was Soto's box and Garcia had known nothing about it. The basis of Martinez's motion for severance was that Zafiro's defense was antagonistic to his own. Zafiro testified that she was just a girl friend. Martinez stayed in her apartment from time to time, kept some clothes there, and gave her small amounts of money. But when he asked her whether he could store a suitcase in her closet he did not tell her that it contained narcotics and she had no idea it did. Martinez did not testify but his lawyer argued that Martinez had not known that cocaine was going to be delivered to Zafiro's apartment or that the suitcase in the closet contained cocaine; after all, it wasn't his apartment.

The government denies that the defenses of these various defendants were mutually antagonistic but concedes that if they were the defendants would be entitled to separate trials. The government describes this as a case merely of "finger-pointing," which it considers critically different from presenting mutually antagonistic defenses although as an original matter we might have thought that for codefendants to point the finger of guilt at each other was about as forthright a gesture of mutual antagonism as could be imagined. Rule 14 of the federal criminal rules allows severance if a defendant (or for that matter the government) would be "prejudiced" by a joint trial. There is nothing about mutual antagonism. There is nothing, either, to suggest that two defendants cannot be tried together if it is certain that one but not both committed the crime and the only uncertainty is which one--the government's idea of when mutually antagonistic defenses bar a joint trial.

True, a vast number of cases say that a defendant is entitled to a severance when the "defendants present mutually antagonistic defenses" in the sense that "the acceptance of one party's defense precludes the acquittal of the other defendant," United States v. Keck, 773 F.2d 759, 765 (7th Cir.1985) (though United States v. McPartlin, 595 F.2d 1321, 1334 (7th Cir.1979), denies this proposition), but not when the defendants are engaged merely in "finger-pointing." United States v. Buljubasic, 808 F.2d 1260, 1263 (7th Cir.1987); United States v. Emond, 935 F.2d 1511, 1514 (7th Cir.1991). This formulation has become canonical. But we recall Justice Holmes's warning that to rest upon a formula is a slumber that prolonged means death. The fact that it is certain that a crime was committed by one of two defendants is a reason for trying them together, rather than a reason against, to avoid "the scandal and inequity of inconsistent verdicts." Richardson v. Marsh, 481 U.S. 200, 210, 107 S.Ct. 1702, 1709, 95 L.Ed.2d 176 (1987). Cf. United States v. Buljubasic, supra, 808 F.2d at 1263. The analogy of interpleader comes to mind, Fed.R.Civ.P. 22; also such joint-tort cases as Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948), and Sindell v. Abbott Laboratories, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924 (1980). And as we said earlier we are not clear why the case in which the acceptance of one party's defense precludes the acquittal of the other defendant could not be regarded as a paradigmatic case of finger-pointing. We must dig beneath formulas.

As an original matter, persons charged in connection with the same crime should be tried separately only if there is a serious risk that a joint trial would prevent the jury from making a reliable judgment about the guilt or innocence of one or more of the defendants. Two situations might fit this bill. The first is that of a complex case with many defendants some of whom might be only peripherally involved in the alleged wrongdoing. The danger is that the bit players may not be able to differentiate themselves in the jurors' minds from the stars. Against that danger must be weighed the interest in trying all members of a conspiracy together so that the jury can get a complete picture and the government can save the expense of conducting multiple trials to break a single ring. This counterweight has invariably prevailed in the appellate cases, e.g., United States v. Diaz, 876 F.2d 1344, 1357-59 (7th Cir.1989); United States v. Moya-Gomez, 860 F.2d 706, 754 (7th Cir.1988); United States v. L'Allier, 838 F.2d 234, 241-42 (7th Cir.1988); United States v. Percival, 756 F.2d 600, 610 (7th Cir.1985)--we can find no recent reversals on this ground in this circuit, and only a couple in others. United States v. Engleman, 648 F.2d 473, 480-81 (8th Cir.1981); United States v. Salomon, 609 F.2d 1172, 1175-77 (5th Cir.1980). Either appellate courts have faith that the jury will obey instructions to consider the evidence regarding each defendant separately, or they defer to the district judge's judgment that a severance is not required. They might defer as much to the opposite judgment, but such cases are underrepresented in an appellate sample. When the district judge grants a severance and the defendants go on to trial and are either acquitted or convicted, there is no possibility of appeal--well, almost none. If the government appeals the dismissal of an indictment or some other order made appealable by 18 U.S.C. § 3731, it may be permitted to challenge a severance under the doctrine of pendent appellate jurisdiction. United States v. Maker, 751 F.2d 614, 626 (3d Cir.1984), allowed the government to challenge several severances in such a case, though without mentioning the doctrine or insisting on that close relatedness between the pendent and the independently appealable order that is a central element of the doctrine. Patterson v. Portch, 853 F.2d 1399, 1403 (7th Cir.1988).

A severance is more likely to be granted, and rightly so, when the defendants are not alleged to be members of a single conspiracy but instead are more loosely related to one another, for then the economies of a joint trial are fewer. United States v. Velasquez, 772 F.2d 1348, 1353 (7th Cir.1985); United States v. Castro, 829 F.2d 1038, 1045-46 (11th Cir.1...