US v. Noriega, 88-0079-CR.

• Citation: 746 F. Supp. 1548
• Decision Date: 09 October 1990
• Docket Number: No. 88-0079-CR.,88-0079-CR.
• Court: U.S. District Court — Southern District of Florida
• Parties: UNITED STATES of America, Plaintiff, v. Manuel Antonio NORIEGA, et al., Defendants.

746 F. Supp. 1548

UNITED STATES of America, Plaintiff, v. Manuel Antonio NORIEGA, et al., Defendants.

No. 88-0079-CR.

United States District Court, S.D. Florida.

October 9, 1990.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Michael P. Sullivan, Myles H. Malman, Guy Lewis, Asst. U.S. Attys., Miami, Fla., for plaintiff.

Frank A. Rubino, Coconut Grove, Fla., Jon May, Steven Kollin, Leon E. Tozo, Miami, Fla., for defendant Noriega.

Samuel I. Burstyn, Miami, Fla., for defendant Del Cid.

Steven E. Kreisberg, Coconut Grove, Fla., for defendant Saldarriaga.

Richard Sharpstein, Coconut Grove, Fla., for defendant Davidow.

ORDER DENYING DEFENDANTS' MOTIONS FOR SEVERANCE

HOEVELER, District Judge.

THIS CAUSE is before the Court on the severance motions of codefendants Manuel Antonio Noriega, Luis Del Cid, Brian Davidow, and William Saldarriaga.

The defendants are named in a twelve-count indictment charging them with various narcotics-related offenses. Defendants Noriega and Del Cid are jointly charged in four counts: conspiracy to commit racketeering, in violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1962(d) (Count I); substantive racketeering offenses, in violation of RICO, 18 U.S.C. § 1962(c) (Count II); conspiracy to distribute and import cocaine into the United States, in violation of 21 U.S.C. § 963 (Count III); and distribution and aiding and abetting the distribution of cocaine, intending that it be imported into the United States, in violation of 21 U.S.C. § 959 and 18 U.S.C. § 2 (Count V). In addition, Noriega is also charged with numerous other offenses in all but one of the remaining counts of the indictment. Defendants Davidow and Saldarriaga are charged with conspiring to distribute and import over 322 kilograms of cocaine into the United States, in violation of 21 U.S.C. § 963 (Count IX), and distributing and aiding and abetting the distribution of the same, in violation of 21 U.S.C. § 959 and 18 U.S.C. § 2 (Count X). Davidow is also named in the RICO conspiracy count.

Del Cid, Davidow, and Saldarriaga all move to have their trials severed from that of Noriega on various grounds. First, Noriega's codefendants maintain that a joint trial with Noriega will create prejudicial "spillover effects" of two varieties: disparity in evidence and prejudicial pretrial publicity. Arguing that their roles in the enumerated counts are relatively minor compared to Noriega's involvement, Noriega's codefendants claim prejudice from the amount of evidence likely to be introduced against Noriega but not directly related to or admissible as to them. Noriega's codefendants also argue that the enormous amount of negative media publicity heaped on Noriega will spill over onto them, creating guilt by association. Second, Defendants Del Cid and Davidow move for severance on the additional ground that their defenses will conflict with Noriega's anticipated defense of entrapment. Third, Defendants Davidow and Saldarriaga assert their statutory right to a speedy trial as a basis for severance, arguing that this right is infringed as long as their cases remain tied to Noriega's and are subject to the delays attributable to Noriega's participation.

In addition to their motions for severance from Noriega, Del Cid, Davidow, and Saldarriaga also seek severance from each other and the remaining codefendants due to alleged disparities in evidence. Finally, Noriega moves for severance from another codefendant, Daniel Miranda, on the basis of antagonistic defenses.

Because the Court finds that the defendants have failed to establish compelling prejudice sufficient to outweigh the public interest in a joint trial, the motions are denied.

I. DISCUSSION

We begin with the general rule that defendants jointly indicted should be jointly tried, particularly in conspiracy cases, where charges against two or more defendants may be proved on substantially the same set of facts and evidence. United States v. Morales, 868 F.2d 1562, 1571 (11th Cir.1989); United States v. Gossett, 877 F.2d 901, 904 (11th Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1141, 107 L.Ed.2d 1045 (1990); United States v. Alvarez, 755 F.2d 830, 857 (11th Cir.), cert. denied, 474 U.S. 905, 106 S.Ct. 274, 88 L.Ed.2d 235 (1985); United States v. Walker, 720 F.2d 1527, 1533 (11th Cir.1983), cert. denied, 465 U.S. 1108, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984). The preference for joint trials is dictated by considerations of judicial economy, conservation of public resources, inconvenience to the government of prosecuting separately defendants who are properly joined for trial, and the need for efficient administration of justice. Walker, 720 F.2d at 1533, n. 9 (citing Parker v. United States, 404 F.2d 1193 (9th Cir.1968), cert. denied, 394 U.S. 1004, 89 S.Ct. 1602, 22 L.Ed.2d 782 (1969)). The decision to sever is left to the sound discretion of the court. United States v. Leavitt, 878 F.2d 1329, 1340 (11th Cir.), cert. denied, ___ U.S. ___, 110 S.Ct. 415, 107 L.Ed.2d 380 (1989); United States v. Caporale, 806 F.2d 1487, 1509 (11th Cir.1986), cert. denied, 482 U.S. 917, 107 S.Ct. 3191, 96 L.Ed.2d 679 (1987); United States v. Rivera, 775 F.2d 1559, 1564 (11th Cir.1985), cert. denied, 475 U.S. 1051, 106 S.Ct. 1275, 89 L.Ed.2d 582 (1986). However, severance is warranted only where a defendant demonstrates that a joint trial will result in "specific and compelling prejudice" to the conduct of his defense. Alvarez, 755 F.2d at 857; Walker, 720 F.2d at 1533; United States v. Zielie, 734 F.2d 1447, 1464 (11th Cir.1984), cert. denied, 469 U.S. 1189, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985). The fact that a defendant may suffer some prejudice is not enough to justify severance, as a certain degree of prejudice is always inherent in multi-defendant trials. Alvarez, supra; Walker, supra; United States v. Varella, 692 F.2d 1352, 1360 (11th Cir. 1982), cert. denied, 463 U.S. 1210, 103 S.Ct. 3542, 77 L.Ed.2d 1392 (1983); United States v. Zicree, 605 F.2d 1381, 1388-89 (5th Cir.1979), cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980). With these principles in mind, the Court now turns to the several arguments advanced by the moving defendants.

A. Spillover Effects

1. Disparity in Evidence

Del Cid, Davidow, and Saldarriaga all argue that they are comparatively minor figures in the indictment and that a substantial amount of the evidence introduced by the government at trial will concern defendants other than themselves — particularly Noriega, said to be the principal defendant. The quantity of evidence admissible as to Noriega and others but only indirectly related to or otherwise inadmissible as to them, defendants argue, will spill over onto them and result in convictions based largely on proof unconnected to the specific acts with which they are charged.

As indication of the prejudice likely to occur, defendants point to the breadth and gravity of the charges contained in the two RICO counts, which combined account for 23 pages of the 30-page indictment. The RICO conspiracy count spans five years and covers eleven racketeering acts. As argued by Saldarriaga:

This count is not only physically ponderous, but is extremely far-reaching in both a substantive, temporal and geographic sense as well. Its alleged participants include high ranking members of the government of Panama, including military chief Manuel Antonio Noriega, as well as an alleged leader of the so-called and notorious "Medellin Cartel" ... among others. The count alleges a grand scheme whereby General Noriega, and hence the government of Panama, allegedly provided protection for cocaine shipments, secure airstrips in Panama, precursor chemicals used in the manufacture of cocaine, permission to establish a cocaine laboratory in Panama, protection from Columbian law enforcement authorities, and safe passage for narcotics proceeds. It further alleges forty-five distinct overt acts to have been committed in furtherance of the alleged racketeering conspiracy, over an extended period of time of some three and a half years ...¹

It is submitted that the RICO counts will entail evidence of ties between Noriega and the Medellin Cartel, Cuban president Fidel Castro, and the Nicaraguan Sandanistas, as well as ties to the Iran-Contra scheme; evidence concerning the manufacture, importation, and distribution of cocaine over several years; graphic photos and descriptions of huge quantities of drugs; evidence of political corruption at the highest levels of the Panamanian government; and evidence of vast wealth and international money laundering.²

Saldarriaga is not charged in either of the RICO counts and thus much of the evidence relevant to these counts will be inadmissible as to him. The charges against Saldarriaga (Counts IX and X) are based on a single alleged distribution of, and conspiracy to distribute, approximately 322 kilograms of cocaine aboard a vessel which was subsequently seized by Columbian officials. The charges against Davidow are also based on the same incident, but Davidow, unlike Saldarriaga, is named in the RICO conspiracy count. Davidow nevertheless seeks to minimize his involvement in the conspiracy, pointing to the fact that his only alleged participation consists of the single unsuccessful smuggling venture, which occurred at the tail end of the five-year conspiracy. Thus, while the evidence as to the RICO conspiracy may well be admissible against him, a substantial portion will have no direct bearing on his limited role. In addition, much of the evidence relevant to the substantive RICO offense will be inadmissible against Davidow, since he is not charged under that count. Del Cid is named in both RICO counts but nonetheless argues that his alleged role is vastly less significant than Noriega's.

As to this last claim, Del Cid's role, while less extensive than Noriega's, can hardly be characterized as that of a peripheral player on the...