United States v. Cortinas

FITZWATER, District Judge,

concurring in part and dissenting in part:

I join the majority opinion except insofar as it vacates the convictions of Linda Rodriguez Mata (“Mata”) and Ricardo Rodriguez (“Rodriguez”). Because the majority fails to apply properly the well-settled severance jurisprudence of this circuit, I respectfully dissent from that part of its decision.

I

Mata, Rodriguez, and 25 other defendants were indicted for conspiracy to possess with intent to distribute marihuana, in violation of 21 U.S.C. § 846. The government charged that the conspiracy took place over a period of almost seven years (between June 1, 1985 and May 6, 1992), and that it was broad-ranging in its geographic scope and in the number and respective roles of its participants.

Two of the defendants — Mata and Arturo Villareal, Jr. (“Villareal”) — were also indicted for conspiring between April 1,1987 and July 1, 1993 to launder the proceeds of the marihuana distribution conspiracy, in violation of 18 U.S.C. § 1956(g). Two other defendants were also charged with the substantive offense of possession with intent to distribute marihuana, in violation of 21 U.S.C. § 841(a)(1).1

Mata, Rodriguez, and seven other defendants were tried together. The government dismissed one defendant during trial. The jury found seven of the remaining eight defendants — including Mata and Rodriguez— guilty of the marihuana conspiracy, and acquitted defendant Jesse David Rodriguez (“Jesse”). The jury found Mata guilty of the money laundering conspiracy. It acquitted Johnny Albert Martinez (“Martinez”), the sole defendant who was tried for the substantive offense of possession with intent to distribute marihuana.

The trial evidence showed that Daniel Nie-to (“Nieto”) commenced in 1984-85 a multimillion dollar smuggling operation in which he used vehicles with hidden compartments to transport large quantities of marihuana from San Antonio, Texas to Saginaw, Michigan. During the 1985-89 period, Nieto obtained marihuana from Villareal, Mata’s brother. Mata occasionally arranged for Vil-lareal’s marihuana to be delivered to Nieto, who in turn paid Mata several hundred thousand dollars for delivery to Villareal. Mata also engaged in real and personal property transactions for the purpose of laundering the proceeds of the marihuana sales. For several years, Rodriguez, who is Mata and Villareal’s uncle, delivered Villareal’s marihuana to Nieto’s engine and transmission shop in San Antonio. Villareal ceased supplying Nieto with marihuana sometime in 1989. Although the indictment charged that as late as June 10, 1993 Mata committed overt acts in furtherance of the money laundering conspiracy, the evidence against Mata and Rodriguez focused on their activities in Texas during the period that Villareal was Nieto’s source of marihuana, which ended in 1989.

In 1989 Nieto met defendant Ernest Corti-nas (“Cortinas”). Nieto complained to him that certain of his Michigan customers owed him money. Cortinas, a member of the San Antonio chapter of the Bandido Nation Motorcycle Club, offered to collect these debts in exchange for a fee. Cortinas was assisted *252by defendants Eric Wayne Green (“Green”) and Edward Salas, and by David Loera (“Lo-era”), who were also Bandidos.2

According to the evidence, the Bandido Nation is an organization involved in motorcycles and crime, principally methamphetamine, stolen motorcycles, prostitution, strong arm, theft, drugs, and violence, including possession of assault weapons and machine guns. The trial evidence showed that the Bandidos engaged in acts of violence as part of their collection efforts. On September 2, 1991 Cortinas, Loera, and Green committed a drive-by shooting of the residence of Forrest Zudell (“Zudell”), a drug debtor who resided in Michigan.3 The Outlaws, a motorcycle gang headquartered in Detroit, responded by threatening violence against Cor-tinas because the Zudell family had been under their protection. Nieto was required to provide $25,000 for payment of a tribute to The Outlaws so that they would not use violence against Cortinas. Eventually, the Bandidos took control of Nieto’s business.

II

The oft-cited general rule is that codefend-ants who are indicted together should be tried together. See, e.g., Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 937, 122 L.Ed.2d 317 (1993); United States v. Mikolajczyk, 137 F.3d 237, 240 (5th Cir.1998).4 “The rule that persons indicted together should be tried together carries great weight where, as here, persons are charged with committing the same conspiracy.” Mi-kolajczyk, 137 F.3d at 240 (citing United States v. Archer, 733 F.2d 354, 360 (5th Cir. 1984)); United States v. Manges, 110 F.3d 1162, 1174 (5th Cir.1997), cert. denied, — U.S. -, 118 S.Ct., 1675, 140 L.Ed.2d 813 (1998); United States v. Featherson, 949 F.2d 770, 773 (5th Cir.1991) (“This rule is especially strong when the defendants are charged with committing the same conspiracy.”). “Joinder is the rule rather than the exception.” Mikolajczyk, 137 F.3d at 240 (citing United States v. Chagra, 754 F.2d 1186, 1188 (5th Cir.1985)).5 A district court should grant a severance only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reasonable judgment about guilt. United States v. Neal, 27 F.3d 1035, 1045 (5th Cir.1994) (citing Zafiro, 506 U.S. at 539, 113 S.Ct. at 938).

A defendant is not entitled to a severance merely because the evidence against a code-fendant is more damaging than the evidence against her. See United States v. Williams, 809 F.2d 1072, 1085 (5th Cir.1987). Generally, defendants are to be tried together if their indictments arise out of a common set of circumstances, even if there is a disparity in the quantum of the evidence. See United States v. Rocha, 916 F.2d 219, 227-28 (5th Cir.1990). Moreover, even if there is more damaging evidence presented against one defendant that may spill over to other defendants against whom the evidence is not as damaging, the proper remedy is not severance. See United States v. Walters, 87 F.3d 663, 670 (5th Cir.) (“Neither a qualitative disparity in the evidence nor a prejudicial spillover effect is sufficient in and of itself to *253warrant a severance.”)(citing United States v. Mitchell, 31 F.3d 271, 276 (5th Cir.1994)), cert. denied, — U.S.-, 117 S.Ct. 498, 136 L.Ed.2d 390 (1996). The pernicious effect of cumulation is best avoided by precise instructions to the jury on the admissibility and proper uses of the evidence introduced by the government. See Zafiro, 506 U.S. at 539, 113 S.Ct. at 938 (“When the risk of prejudice is high, a district court is more likely to determine that separate trials are necessary, but, ... less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice.”); United States v. Piaget, 915 F.2d 138, 142 (5th Cir.1990); United States v. Harrelson, 754 F.2d 1153, 1175 (5th Cir.1985). The district court can properly instruct the jury that it is to consider separately the evidence offered against each defendant. See Walters, 87 F.3d at 670. If the jury can keep separate the evidence that is relevant to each defendant, even if the task is difficult, and render a fair and impartial verdict as to each defendant, a severance should not be granted. See id. at 670-71.

Where joinder is initially proper, we review the district court’s refusal to sever for abuse of discretion. Mikolajczyk, 137 F.3d at 240 (citing Zafiro, 506 U.S. at 539, 113 5.Ct. at 938); United States v. Faulkner, 17 F.3d 745, 758 (5th Cir.1994). To prevail on appeal, a defendant must show that (1) the denial resulted in compelling prejudice against which the trial court was unable afford protection and (2) the prejudice outweighed the government’s interest in economy of judicial administration. Mikolajczyk, 137 F.3d at 240-41; Manges, 110 F.3d at 1174. The party seeking to establish reversible error has a heavy burden. See Mitchell, 31 F.3d at 276; Neal, 27 F.3d at 1045.6

ill

A

Mata, in arguments adopted by Rodriguez,7 contends the district court erred by denying a severance. They maintain that there was a gross disparity in the quantity and venality of the evidence between them and the codefendants, and that there was no testimony or indication that they knew of the Bandidos’ violent activities or even of their involvement in a conspiracy with Nieto. Mata also asserts that the district court improperly denied a mid-trial limiting instruction at the time the government offered evidence of the Zudell drive-by shooting, and gave a “marginal and cursory limiting instruction” at the conclusion of trial that was insufficient to protect her rights.

Although the majority opinion recognizes the controlling jurisprudence and standard of review, it proceeds to disregard them, holding in almost summary fashion that Mata and Rodriguez should have been granted a severance. The majority reasons that the government introduced prejudicial evidence concerning Bandidos tactics and activities, including highly inflammatory evidence of the drive-by shooting. Neither Mata nor Rodriguez was associated with the Bandidos, and their involvement with Nieto ended in 1989, before the Bandidos joined the conspiracy. After 1989 Nieto changed marihuana suppliers and no longer used Villareal. According to the majority, the district court’s limiting instructions “were inadequate to mitigate the prejudicial effect of the overwhelming testimony regarding the violent, criminal activities of the Bandidos.”

Unlike the majority, I would hold that Mata and Rodriguez have failed to show an *254abuse of discretion and specific and compelling prejudice.

B

The district court’s instructions to the jury, in the context of the facts of this case, were adequate to remedy any prejudice from a joint trial.

The district court gave the jury two pertinent instructions at the conclusion of the case. The first stated:

No Defendant is on trial for an act, conduct, or offense not alleged in the indictment against the particular Defendant. Neither are you concerned with the guilt of any other person or persons not on trial as a Defendant in this case.

The second instruction provided:

A separate crime or offense is charged against one or more of the Defendants in each count of the indictment. Each count, and the evidence pertaining to it, should be considered separately. Also, the case of each Defendant should be considered separately and individually. The fact that you may find one or more of the accused guilty or not guilty of any of the crimes charged should not control your verdict as to any other crime or any other defendant. You must give separate consideration to the evidence as to each defendant.

We have held in several cases that instructions substantially similar or identical to those given in the present case are sufficient to cure any risk of prejudice. See, e.g., Mikolajczyk, 137 F.3d at 242; Manges, 110 F.3d at 1175; United States v. Misher, 99 F.3d 664, 669 (5th Cir.1996), cert. denied, — U.S. -, 118 S.Ct. 73, 139 L.Ed.2d 32 (1997). That the district court did not give the jury cautionary instructions more than one time during the course of trial does not detract from their curative effect, especially when the instructions are considered in conjunction with the other factors discussed below. Moreover, the cases in which we have held that cautionary instructions cured any potential for prejudice have not been limited to those that involved repeated instructions. See Mikolajczyk, 137 F.3d at 242 (instructions given at voir dire and trial); Manges, 110 F.3d at 1175 (single instruction); Walters, 87 F.3d at 670 (appearing to involve single instruction).

C

The verdict in this case also demonstrates that the jury was able to separate the evidence and to consider each defendant and each charge separately.

The jury acquitted Jesse of the marihuana conspiracy and acquitted Martinez of the substantive offense of possession with intent to distribute marihuana. Jesse was not a member of the Bandidos.8 Martinez was a member of the Southsiders Bikers Club, a “boot camp” for the Bandidos. The jury thus demonstrated its ability to distinguish the Bandidos evidence when addressing the allegations against a non-B andido, and to accomplish the potentially more difficult task of parsing the evidence against a member of a Bandidos boot camp. These acquittals establish that the jury followed the district court’s instructions. See Walters, 87 F.3d at 670-71 (“[TJhe jury acquitted both [appellants] on several counts of the indictment, suggesting that they heeded the court’s instructions.”); Neal, 27 F.3d at 1045 (“[T]he jury’s ‘not guilty’ verdicts as to some defendants demonstrate that the jurors followed the district court’s instructions and considered the evidence separately as to each defendant.”); United States v. Extender, 947 F.2d 748, 755 (5th Cir.1991) (“[A]cquittals as to some defendants on some counts support an inference that the jury sorted through the evidence and considered each defendant and each count separately.”).

D

Unlike the majority, I would hold that the temporal and spatial differences between Mata’s and Rodriguez’s involvement in the conspiracy, and the Bandidos’ participation, reduce rather than heighten any concerns that the jury could have erroneously found Mata and Rodriguez guilty based on the Bandidos’ violent conduct.

*255While “evidence of a codefendant’s wrongdoing in some circumstances erroneously could lead a jury to conclude that a defendant was guilty,” Zafiro, 506 U.S. at 539,113 S.Ct. at 938, the evidence does not support such concerns in this case. Mata and Rodriguez participated in the conspiracy until 1989, while Villareal was Nieto’s marihuana supplier, and their criminal activities took place in Texas. The Bandidos did not enter the conspiracy until 1989. The violent act that was of principal concern to the defendants — the Zudell drive-by shooting — occurred in Michigan, two years after most of Mata’s9 and Rodriguez’s involvement in the conspiracy had ended. The former national secretary-treasurer of the Bandidos testified at trial that Mata was not a Bandido (and, as a woman, could not have been one). The trial evidence did not otherwise connect Mata or Rodriguez to any violent Bandidos acts. In view of the stark contrast between the conduct of Mata and Rodriguez, on the one hand, and the Bandidos, on the other hand, it is doubtful that the jury would have erroneously concluded that Mata and Rodriguez were guilty.

Mata and Rodriguez have failed to demonstrate specific and compelling prejudice based on the Bandidos’ conduct. They have not established that this evidence would either have been confusing to the jury or would have prevented it from reaching a fair and impartial verdict. The district court did not abuse its discretion by denying their severance motions.

rv

Although I respectfully disagree with my colleagues’ disposition of Mata’s and Rodriguez’s convictions, I think it is important to confine the majority opinion to its unusual facts rather than to view it as a well-spring for severance motions in conspiracy eases. The premise of the majority opinion is that the district court abused its discretion because, absent a severance, Mata and Rodriguez were prejudiced by (1) highly inflammatory evidence that would not have been admissible against them had they been tried separately, (2) that pertained to persons with whom they had no connection and to a time-period after they had concluded their charged involvement in the conspiracy, and (3) with regard to which the district court gave inadequate limiting instructions. The Supreme Court teaches that we must evaluate case-by-ease the risk of prejudice in a joint trial. Zafiro, 506 U.S. at 539, 113 S.Ct. at 938. Accordingly, although the majority concludes that Mata and Rodriguez have demonstrated compelling prejudice, today’s decision should be limited to the “extraordinary circumstances of this case.” Fisher, 106 F.3d at 632 n. 10.

I concur in part and dissent in part.

. The superseding indictment also charged one defendant with escape. That defendant was a fugitive, and was not tried with the other defendants.

. Loera joined the Bandidos in 1992.

. As the majority opinion notes, a 14-year-old boy was killed in the shooting, but the district court precluded the government from disclosing this fact to the jury.

. In Zafiro the Court held:

There is a preference in the federal system for joint trials of defendants who are indicted together. Joint trials "play a vital role in the criminal justice system." They promote efficiency and “serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.” For these reasons, we repeatedly have approved of joint trials.

506 U.S. at 537, 113 S.Ct. at 937 (citations omitted). When these informing principles are kept in mind, it is a more facile task to accept the fundamental fairness of joint trials in conspiracy cases, despite differences in the defendants' respective roles and in the nature and quantum of the proof against them.

.If joinder were the exception and severance the rule, our courts could become even more clogged by successive trials in which witnesses, jurors, and court officers must present or consider substantially similar, if not identical, evidence concerning the alleged conspiracy, augmented in each trial only by evidence by which the government seeks to prove that the defendant on trial was a member of the conspiracy.

. In Mikolajczyk we noted that the defendants "failed to cite a single case in which this court reversed a conviction for failure to sever." 137 F.3d at 240. Mata and Rodriguez have cited such a case. See United States v. Fisher, 106 F.3d 622, 631-32 (5th Cir.1997) (holding that impeachment of codefendant who had invalid and inadmissible conviction was so prejudicial to defendant that it could not be cured by instruction). Fisher, however, is distinguishable and limited to the “extraordinary circumstances of th[at] case." Id. at 632 n. 10.

. As the majority opinion notes, pursuant to Fed. R.App. P. 28(i), Rodriguez expressly adopted by reference the arguments presented in the briefs of the other defendants as those arguments might apply to him. Insofar as Mata's arguments apply to Rodriguez, my reasoning for dissenting from the majority’s decision to vacate Mata's conviction applies equally to its decision to vacate Rodriguez’s conviction.

. Nothing in the record reflects that Jesse had any association with the Bandidos.

. The superseding indictment alleges that on June 10, 1993 Mata committed an overt act in furtherance of the money laundering conspiracy.