IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 00-40946
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GURMAIL SINGH and HARJIT DHESI
Defendant-Appellants.
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Appeals from the United States District Court
for the Eastern District of Texas
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August 10, 2001
Before JOLLY, DeMOSS and STEWART, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This appeal brings before us the convictions of Gurmail Singh
and Harjit Dhesi, who were convicted for harboring aliens for
commercial gain, in violation of 8 U.S.C. § 1324. Singh was
indicted, but acquitted, of a felon in possession of a gun charge
in violation of 18 U.S.C. § 922(g)(1). On appeal, Singh challenges
the district court’s failure to sever that count in the indictment
from this trial. Singh argues that the count was unrelated to the
harboring charge, and, because inclusion of the count allowed the
government to introduce inflammatory evidence against him,
including a felony conviction and possession of various weapons, he
was unfairly and irreparably prejudiced by the district court’s
abuse of discretion in failing to sever that count from this trial.
Both defendants appeal a series of evidentiary rulings, the jury
instructions and the failure to compel the production of documents.
Because we hold that the only reversible error is the district
court’s failure to sever the felon in possession charge, we affirm
Dhesi’s conviction and sentence, but reverse Singh’s conviction and
sentence and remand for further proceedings.
I
Appellants Singh and Dhesi operated convenience stores in
north Texas. In early 1999, they hired three aliens from India to
work at their convenience stores. The aliens were all employees or
former employees of International Forestry Services, an
organization that had arranged for the individuals to come to the
United States on work visas.
On August 20, 1999, federal agents executed an INS
administrative arrest warrant on Singh at his residence. Singh
consented to a search of his bedroom. This search produced a
photograph of Singh, a convicted felon, holding an assault style
weapon in front of a 1996 calendar.1 One of the officers
recognized the background of the photograph as the back room of one
1
On February 9, 1996, Singh pled guilty to the federal felony
of unlawful possession of food stamps and was sentenced to serve
three years’ probation. It is unclear exactly when the photograph
was taken.
2
of Singh’s convenience stores.
Later that afternoon, the officers entered the convenience
store and sought consent to search from the clerk in charge.
Although they obtained written consent to search, the district
court held that this search was illegal because the language
barrier prevented the consent from being knowingly and voluntarily
given. During the search of the back room, the officers found two
individuals who stated that they, as well as the clerk in the front
of the store and another individual, were illegal aliens from India
who lived in the back room and worked in the defendants’
convenience stores. The officers also found a handgun (the subject
of Count Four of the indictment) and the passports of three of the
four Indian nationals who lived in the back room.
A few days later, the officers returned to the convenience
store in an attempt to find the Indian nationals. Although they
had disappeared from the area,2 later, a man who had purchased one
of the convenience stores from the defendants cooperated with the
officers in an attempt to locate them. Eventually, the aliens
agreed to cooperate with the United States in the prosecution of
Singh and Dhesi.
On January 12, 2000, a grand jury indictment charged Dhesi and
Singh with three counts of harboring illegal aliens for commercial
2
At trial, the aliens testified that Singh and Dhesi kicked
them out of the apartment without their belongings and told them to
flee the area.
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advantage, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(iii), 1324
(a)(1)(A)(v)(II) and 1324 (a)(1)(B)(i). A fourth count charged
Singh with being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1). The judge granted a motion to suppress
evidence--that is, the passports and the handgun--arising out of
the search of the convenience store because the language barriers
prevented effective consent. The jury found both defendants guilty
on the three counts of harboring illegal aliens. Singh, however,
was acquitted on the count of possession of a firearm. Dhesi was
sentenced to four months of house arrest and three years’ probation
and was directed to pay a $9,000 fine. Singh was sentenced to ten
months in prison.
II
On appeal, Singh argues that his convictions should be
reversed because the district court abused its discretion by
failing to sever Count Four--the felon in possession of a firearm
charge--because this count was unrelated to the harboring counts
and it allowed the government to introduce highly prejudicial
evidence that resulted in an unfair trial on the remaining counts.
That evidence included Singh’s purported earlier involvement in a
firearms deal, photographs depicting Singh holding an assault
rifle, testimony that Singh perpetually carried a firearm, and
evidence that Singh had previously been convicted of a felony--
unlawful possession of food stamps.
We review a district court’s denial of a motion for severance
4
for abuse of discretion. United States v. Bullock, 71 F.3d 171,
174 (5th Cir. 1995). The district court’s decision should not be
reversed unless there is “clear, specific and compelling prejudice
that resulted in an unfair trial.” Id.
The preliminary inquiry in reviewing the denial of a motion to
sever is whether initial joinder was proper under Federal Rule of
Criminal Procedure 8(a). United States v. Holloway, 1 F.3d 307,
310 (5th Cir. 1993). Under Rule 8(a), offenses may be charged in
the same indictment when they “(1) are of the same or similar
character, or (2) are based on the same act or transaction, or (3)
are connected together or constitute parts of a common scheme or
plan.” Id. Joinder of charges is the rule rather than the
exception, and Rule 8 is broadly construed in favor of joinder.
Bullock, 71 F.3d at 174.
The government contends that the weapons charge is connected
to the harboring charges because Singh threatened the aliens with
violence to maintain control over them, and therefore is part of a
common scheme or plan. The alleged link between the weapons charge
and the harboring charge, however, is tenuous at best. There was
no significant evidence that Singh used the gun described in the
indictment to intimidate the aliens. In fact, the government
produced evidence only that Dhesi, not Singh, had threatened one of
the aliens with a weapon. Although the aliens testified that they
were aware that Singh had a handgun under the counter of the store,
and in the ceiling of the bathroom of the apartment in the back of
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the convenience store, there was no evidence that Singh threatened
the aliens with the gun or intended to use it against them.
Because there was no evidence that Singh’s alleged possession of
the gun had any connection to his housing and hiring of illegal
aliens, the gun count was unrelated to the harboring count. Thus,
initial joinder was not appropriate.
Even though the counts were improperly joined, reversal is
only appropriate if there is clear evidence of prejudice resulting
in an unfair trial. Bullock, 71 F.3d at 174. In United States v.
Holloway, 1 F.3d 307, we found reversible error when a robbery
charge was not severed from a count charging the defendant with
possession of a firearm at the time of his arrest, which occurred
two months after the robberies. We recognized that “evidence of a
prior conviction has long been the subject of careful scrutiny and
use at trial” because of the danger that the jury might convict,
not based on the evidence, but because it feels the defendant is a
“bad person.” Id. at 311. We saw nothing to connect Holloway’s
possession of the particular weapon to the burglary. Finally,
because the jury was informed numerous times that the defendant was
a convicted felon, that he was “a bad and dangerous person ‘by his
very nature,’” we held that the failure to sever prejudiced
Holloway and resulted in an unfair trial. Id. at 311-12.
Here, before the trial even began, the jury was told that
Singh was a convicted felon when the jury was read the indictment.
Although the district court did not allow the government to offer
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evidence of Singh’s prior conviction until the court found that the
government had sustained its burden of proof on the other elements
of Count Four, the government, in the course of trying to prove the
gun count, was permitted to introduce photographs of Singh with
assault type weapons and testimony that Singh had been involved in
a firearms transaction with other Sikhs. These events had occurred
in 1994. Although eleven firearms were confiscated from Singh,
they were all found to be legal and eventually returned to Singh.
It is true that the district court included a jury instruction that
the previous conviction could not be used for any purpose other
than deciding the felony element of Count Four.3 But the element
of the harboring offense that was most seriously contested by Singh
was his alleged knowledge that the Indians were working illegally,
knowledge that he denied. Thus, with Singh’s credibility in the
balance on a critical element of the offense, evidence that Singh
formerly had been convicted of a felony, had engaged in a
transaction involving firearms, and perpetually carried a firearm
was arguably determinative as to whether the jury would believe him
on this crucial issue of fact. Furthermore, the evidence on the
gun charge was weak (the weapon listed in the indictment was
3
Although we have noted that possible prejudice resulting from
the failure to sever charges may be cured with proper instructions,
see Bullock, 71 F.3d at 175, not severing the unrelated charge here
allowed the introduction of a variety of highly prejudicial
evidence and allowed Singh to be “unjustifiably tried, at least in
part, on the basis of who he was and not on the basis of the
material evidence related against him.” Holloway, 1 F.3d at 312.
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suppressed because it was found during the search of the
convenience store) and the jury ultimately found Singh not guilty
on Count Four. We therefore conclude that the inclusion of the
weakly supported firearm charge, and the evidence that was admitted
based on its relevance to this count, seriously and improperly
prejudiced Singh. In short, it resulted in an unfair trial. Thus,
because initial joinder was inappropriate and the failure to sever
was prejudicial, we hold that the district court’s denial of
Singh’s motion for severance constitutes an abuse of discretion,
which, under the circumstances here, requires that we reverse
Singh’s conviction.
III
Although the district court abused its discretion in failing
to sever Count Four, the evidence that was introduced as a result
of this charge prejudiced only Singh, not Dhesi. We cannot,
therefore, reverse Dhesi’s conviction on this basis. We will
consider, then, the other issues raised on appeal that are said to
affect Dhesi’s conviction.
Dhesi contends that the district court erred in failing to
suppress the testimony of the three illegal aliens. He argues that
their identity would not have been discovered but for the illegal
search of the convenience store. Although the district court
suppressed other evidence from the search, it held that suppression
was unnecessary because the witnesses’ testimony was too attenuated
from the illegal search and because the witnesses inevitably would
8
have been discovered.
As a general matter, the exclusionary rule prohibits the
introduction at trial of all evidence that is derivative of an
illegal search, or evidence known as the “fruit of the poisonous
tree.” United States v. Grosenheider, 200 F.3d 321, 327 (5th Cir.
2000). The exclusionary rule is intended to put the police in the
same position--not a worse position--than they would have been in
if the misconduct had not occurred. Id. Otherwise suppressible
testimony or evidence should be admitted if it derives from an
independent source, if the link to the illegally secured evidence
is attenuated, or if it would inevitably have been discovered
without the aid of the illegally obtained evidence. United States
v. Miller, 666 F.2d 991, 995 (5th Cir. 1982). To satisfy the
inevitable discovery exception to suppression, there must have been
a reasonable probability that the evidence would have been
discovered from an untainted source. Id. at 996-97. We review the
district court’s findings of fact supporting the denial of a motion
to suppress under a clearly erroneous standard and review the
district court’s conclusions of law de novo. Grosenheider, 200
F.3d at 326-27.
The Supreme Court has distinguished between inanimate evidence
produced by an illegal search and witness testimony whose source is
found in the Fourth Amendment transgression. United States v.
Ceccolini, 435 U.S. 268, 275-78 (1978). Although both types of
evidence can be excluded, exclusion of live witness testimony
9
requires a “closer, more direct link” to the illegal evidence and
a consideration of the free will of the witness. Id.
Here, the government had obtained an arrest warrant for Singh,
and the store was under surveillance. Government agents had noted
the other individuals entering the store premises from the rear.
One of the illegal aliens was waiting on customers in the front of
the store, which was open to the public. The aliens voluntarily
agreed to be interrogated after the illegal search, and the store
clerk was a cooperating witness. These facts add up to a
reasonable probability that, during the course of the
investigation, the government inevitably would have lawfully
discovered that the aliens lived in the convenience store, even if
the illegal search had never occurred. The district court
therefore did not err in refusing to suppress the testimonial
evidence of the witnesses.
Finally, Dhesi challenges a variety of other trial and
discovery determinations by the district court. We find no merit
in any of these contentions.4 We therefore affirm Dhesi’s
4
Specifically, Dhesi argues that the district court abused its
discretion by: (1) excluding testimony relating to the aliens’
payment for visas to the United States, (2) excluding expert
testimony on whether the defendants would have been aware of the
aliens’ immigration status if they had complied with federal
employment regulations, (3) failing to compel the production of
documents, and (4) incorrectly addressing the jury on the required
mental state and on federal regulations relating to the hiring of
aliens. Because none of these rulings constituted “clear . . .
abuse that resulted in the deprivation of some substantial right of
a party,” United States v. Okoronkwo, 46 F.3d 426, 435 (5th Cir.
1995), and we are not left with an “ineradicable doubt” as to
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conviction and sentence.
IV
In conclusion, we REVERSE Singh’s conviction and sentence on
all counts and REMAND for further proceedings not inconsistent with
this opinion because we hold that the district court abused its
discretion in denying Singh’s motion to sever Count Four. Because
we find no other reversible error, however, Dhesi’s conviction and
sentence are AFFIRMED.
AFFIRMED in part; REVERSED and REMANDED in part.
whether the jury was properly guided, McCoy v. Hernandez, 203 F.3d
371, 375 (5th Cir. 2000), we find no reversible error in Dhesi’s
conviction.
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