United States v. Laca
| Citation | 499 F.2d 922 |
| Decision Date | 28 August 1974 |
| Docket Number | No. 73-3342.,73-3342. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Armando LACA, Jose H. Villanueva, and Ricardo Yanez, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Victor R. Arditti, El Paso, Tex. (Court-appointed), for Yanez.
Sid Abraham, Anthony C. Aguilar, El Paso, Tex. (Court-appointed), for Laca.
Alice Dwyer, El Paso, Tex. (Court-appointed), for Villanueva.
William Sessions, U. S. Atty., San Antonio, Tex., Ronald R. Ederer, Asst. U. S. Atty., El Paso Tex., for plaintiff-appellee.
Before TUTTLE, COLEMAN and AINSFORTH, Circuit Judges.
These are consolidated appeals (a) from defendants Laca, Villanueva and Yanez's convictions under count 1 for violation of 21 U.S.C.A. § 846 by conspiring to possess approximately 256 pounds of marijuana with intent to distribute the same contrary to 21 U.S.C.A. § 841(a)(1), and under count 2 for violation of 21 U.S.C.A. § 841(a)(1) by knowingly and intentionally possessing marijuana with intent to distribute, (b) from defendants Villanueva and Yanez's convictions under count 3 for violation of 18 U.S.C.A. § 924(c) by carrying a firearm during the commission of a crime, and (c) from defendant Villanueva's conviction under count 4 for knowingly possessing a firearm which had not been registered with the Secretary of the Treasury as required by 26 U.S.C.A. § 5841. After a joint trial, the jury returned a verdict of guilty on all counts as to all defendants.
Each defendant alleges numerous errors; however, we find that the majority of these problems were properly handled by the district court and that only the sentencing and the joinder issues raise questions sufficiently substantial to require discussion. We affirm the convictions, but remand for a resentencing in accordance with principles an-counted in this opinion.
The facts for purposes of analyzing these two issues may be briefly stated. On June 21, 1973, around 1:00 a. m. Officer Castro received a call from a confidential informant who stated that a "load of marijuana was being held at 805 Raynolds, in the garage, and that subjects were in the process of loading a vehicle and that the vehicle was backed up to the garage in the driveway." Castro went to the back yard of 801 Raynolds, next door to 805, and observed the three defendants loading large sacks with "Mexican writing" on them into the trunk of a red car. The red car left and Yanez backed a white Ford into the driveway to the garage area. Castro testified the three defendants then began loading large white sacks into the white Ford. At this time Castro left to join other patrolmen nearby. They returned to 805 Raynolds and ran towards the garage area. Officer Calanche testified that Laca, who was standing beside the white Ford, ran to the back of the house and then into the house, where he and Sgt. Chavez apprehended Laca. Castro encountered Yanez and Villanueva in the white Ford. Passenger Villanueva pointed a shotgun at him, but Castro grabbed driver Yanez by the hair and placed him between himself and Villanueva. Castro ordered Villanueva to drop the gun which he did, and both Yanez and Villanueva were arrested. Bags of marijuana were found in the white Ford and in the garage, but the red car was never located.
The first question is whether the joinder of defendant Laca, only charged with drug offenses, with his co-defendants, who were additionally charged with gun violations, constituted either (1) a misjoinder under Rule 8(b) or, alternatively (2) an abuse of discretion requiring reversal under Rule 14. Rule 8(b) provides:
As aptly noted by one commentator, 8 Moore's Federal Practice § 8.02 1, p. 8-2 (2d ed. 1973). Misjoinder under Rule 8 is an issue of law. In this respect it is unlike prejudicial joinder under Rule 14, which raises only the issue whether the trial judge abused his discretion. Tillman v. United States, 406 F.2d 930, 933 n. 5 (5th Cir.), vacated as to one defendant on other grounds, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969). "Whether there has been a misjoinder in a trial involving multiple defendants is governed by Rule 8(b); Rule 8(a) has no application in such instances." United States v. Bova, 493 F.2d 33, 35 (5th Cir. 1974).
It is clear that there is no misjoinder simply because one defendant is not charged in each count of the indictment since Rule 8(b) clearly states that "all of the defendants need not be charged in each count." Even though the defendants need not be charged in each count, the defendants must "have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. . . ." Thus if the defendants' acts are a part of a series of transactions, it is not necessary under Rule 8(b) that all the defendants be charged in the same count or that the evidence show that each defendant participated in precisely the same act. See Kivette v. United States, 230 F.2d 749, 753 (5th Cir. 1956). It must only be shown that each act or transaction was part of "a series of acts or transactions" and that each defendant participated in the series of transactions. Here, the requisite close connection clearly existed between the acts to constitute "a series of acts or transactions," as the violations occurred at the same time, place and occasion. Therefore, since the gun violations and the drug charges were in "a series of acts or transactions" in which series all three defendants participated, Rule 8(b) permits joinder of the defendants in one indictment.1
Having found that there was no misjoinder of defendants under Rule 8(b), it is still necessary to determine whether there was sufficient prejudice to require a severance under Rule 14, which states in relevant part, that:
"if it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires."
"The existence of prejudice, in large measure, depends upon the facts and circumstances of each case," and "it is axiomatic that the granting of a severance is within the discretion of the trial judge." E. g., Tillman v. United States, supra, 406 F.2d at 934. The burden of demonstrating prejudice is a difficult one, and the ruling of the trial court will rarely be disturbed on review. Id.
Appellant Laca claims he was prejudiced by joinder with his co-defendants, both of whom were charged with more serious offenses, violations of the Gun Control Act of 1968. Secondly, Laca asserts that the trial court compounded this prejudice by refusing to give limiting instruction regarding the gun offenses:
Although this instruction was refused, the government points out that the instruction that was given by the court distinctly set out that only two of the defendants were charged with the possession of the shot gun and that only one defendant was charged with registration violations, and, as to this, the court stated at page 271 of the transcript:
". . . so, you will have to consider each count as to each defendant, and vote on them separately and enter your finding."
Again on page 280, the court specifically set forth each count of the indictment and who was charged in each count.
The recent decision by this Court in United States v. Hamilton, 492 F.2d 1110 (5th Cir. 1974), indicates that this type of joinder accompanied by careful and clear instructions would not be an abuse of discretion under Rule 14. There, the indictment charged in count one Robert Hamilton, Edward Hamilton and Clarence Brantley with stealing government property and charged in count two Robert Hamilton and Clarence Brantley with willfully and maliciously setting fire to an occupied government building. Edward Hamilton asserted that his defense was unnecessarily prejudiced by a joint trial with the other defendants who had been charged additionally with arson. Finding no abuse of discretion, this Court stated:
Joinder queries ultimately involve a balancing of the public...
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