United States v. Levrie
| Decision Date | 24 June 1971 |
| Docket Number | No. 31080 Summary Calendar.,31080 Summary Calendar. |
| Citation | 445 F.2d 429 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Luis LEVRIE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Manuel V. Lopez, Jr., San Antonio, Tex., for defendant-appellant.
Seagal V. Wheatley, U. S. Atty., James W. Kerr, Jr., Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
Before THORNBERRY, MORGAN and CLARK, Circuit Judges.
Luis Levrie and his co-defendant, Gilberto B. Lozano, Jr.,1 were convicted in a two count indictment for transporting and concealing approximately 264 grams of heroin2 and for selling the same heroin.3 Appellant Levrie was sentenced to consecutive terms of five years on these two counts. Since we find that the trial court committed no error in denying Luis Levrie's motions for severance and mistrial, we affirm.
The record reflects the following facts. Special Agent Schwartz of the U. S. Bureau of Customs, while acting as an undercover agent, received a telephone call from Lozano voicing an interest in selling a quantity of heroin. After some preliminary telephone negotiations between Lozano and Schwartz, Lozano came to Schwartz's room in the company of Levrie, who carried a set of scales. Lozano instructed Levrie to get the "stuff" from the car. Levrie returned to the car and appeared to reach under the rear seat, and then returned to the hotel room carrying a plastic bag of heroin. Agent Schwartz was in the process of paying for the heroin when Levrie and Lozano were arrested by Customs Agents.
Prior to the trial Levrie filed a motion for severance, which was denied, but with the stipulation that it would be carried through the trial and would "be granted if the facts are developed which render such request in the interest of Justice." At one point the trial judge actually granted a severance and a mistrial as to Levrie. However, the court withdrew this order, again with the stipulation that the motion would continue to be carried with the case for possible consideration at a subsequent time.
At the close of the government's case, Levrie rested and again reasserted his motion for severance, which was not granted. Lozano then took the stand for the purpose of showing entrapment. Levrie contends, without citing us to any concrete examples, that the evidence introduced by the government to rebut Lozano's defense was highly prejudicial and damaging to Levrie. As a result of this, Levrie made various motions for a mistrial, all of which were overruled. Levrie's assignment of error arises from these denials. Specifically Levrie argues that although initially he was properly joined with Lozano pursuant to F.R.Crim.P. 8, when it became apparent that the bulk of evidence introduced by the government was admissible only against Lozano, then a severance was mandated by F.R.Crim.P. 14. Levrie further contends that the volume and degree of evidence admitted against Lozano made it impossible for the jury to render a fair and impartial verdict in his case, and that repeated and frequent instructions to the jury to disregard such evidence as proof against Levrie became grossly ineffective to cure the prejudicial effect of the evidence.
In disposing of Levrie's appellate contention, some general observations gleaned from the numerous decisions of this Circuit on the topic of severance are appropriate. The task of granting or denying a motion for severance is a discretionary function of the trial judge, who must weigh prejudice to the defendant caused by the joinder against the obviously important consideration of economy and expedition in judicial administration. Flores v. United States, 379 F.2d 905 (5th Cir. 1967). Thus, since this matter is addressed to the sound discretion of the trial judge, a conviction will be reversed only if the refusal of the trial judge to grant the relief is a clear abuse of discretion and prejudice to the defendant is positively shown. United States v. Kershner, 432 F.2d 1066 (5th Cir. 1970); United States v. Dryden, 423 F.2d 1175 (5th Cir. 1970), cert. denied 398 U.S. 950, 90 S.Ct. 1869, 26 L.Ed.2d 290 (1970).
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