United States v. Casamayor

837 F.2d 1509, 1988 WL 7387
CourtCourt of Appeals for the Eleventh Circuit
DecidedFebruary 23, 1988
DocketNos. 85-5602, 85-5628
StatusPublished
Cited by33 cases

This text of 837 F.2d 1509 (United States v. Casamayor) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Casamayor, 837 F.2d 1509, 1988 WL 7387 (11th Cir. 1988).

Opinion

PER CURIAM:

This is a RICO case involving jury convictions of three members of the Key West Police Department, and nine co-defendants, who became co-conspirators by supplying cocaine and by protecting cocaine traffickers. On appeal, defendants raised issues concerning: (1) severance; (2) sufficiency of evidence; (3) the Jencks act; (4) eviden-tiary rulings; (5) jury instructions; (6) jury misconduct; (7) prosecutorial misconduct; and (8) ineffective assistance of counsel. Concluding there was no error in denying a severance, that sufficient evidence supports the convictions, and that the district court committed no reversible error, we affirm.

[1511]*1511The superseding indictment upon which defendants were convicted alleged varying degrees of involvement with the Key West Police Department (KWPD), the RICO “enterprise” for purposes of this case. See Racketeer Influenced and Corrupt Organizations, 18 U.S.C.A. § 1961(4). Specifically, the enterprise consisted of Key West Police officers, narcotics traffickers and a Key West attorney.

The defendants were convicted as follows:

A. Raymond Casamayor (the KWPD Chief-of-Detectives):
(1) Racketeering and conspiracy to commit racketeering, in violation of 18 U.S.C.A. §§ 1962(c), (d), 1963;
(2) Possession and conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C.A. §§ 841(a)(1), 846;
(3) Bribing a witness, in violation of 18 U.S.C.A. § 201(d); and
(4) Tax evasion and filing false tax returns, in violation of 26 U.S.C.A. §§ 7201, 7206(1).

B. Carroll Key (the KWPD Sergeant of Detectives) and Russell Barker (the KWPD Lieutenant of Detectives):

(1)Racketeering and conspiracy to commit racketeering, in violation of 18 U.S.C.A. §§ 1962(c), (d), 1963.

C. Carol Hardin (school bus driver and cocaine buyer/seller):

(1) Conspiracy to commit racketeering, in violation of 18 U.S.C.A. §§ 1962(d), 1963; and
(2) Conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C.A. § 846.

D. Michael Cates (attorney):

(1) Racketeering and conspiracy to commit racketeering, in violation of 18 U.S.C.A. §§ 1962(c), (d), 1963; and
(2) Conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C.A. § 846.

E. Janet Cates, Buford Clark, Antonio Diaz, John R. Roberts and Miguel Bri-to-Williams, a/k/a Mike Brito (cocaine traffickers):

(1) Racketeering and conspiracy to commit racketeering, in violation of 18 U.S.C.A. §§ 1962(c), (d), 1963; and
(2) Possession and conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C.A. §§ 841(a)(1), 846.

F.Michael Clark and Aristides M. Brito (cocaine traffickers):

(1) Racketeering and conspiracy to commit racketeering, in violation of 18 U.S.C.A. §§ 1962(c), (d), 1963;
(2) Possession and conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C.A. §§ 841(a)(1), 846; and
(3) Bribing a witness, in violation of 18 U.S.C.A. § 201(d).

(1) Severance

The district court acted within its broad discretion in denying defendants’ requests for severance of offenses and defendants under Rule 14 of the Federal Rules of Criminal Procedure. See also Fed.R.Crim. P. 8. Defendants have not demonstrated the specific and compelling prejudice which is necessary to warrant relief. See 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); United States v. Magdaniel-Mora, 746 F.2d 715, 718 (11th Cir.1984).

The major argument of the defendants for severance involved the alleged prejudicial spillover effect from the joinder of co-defendant Casamayor’s income tax counts with the RICO and narcotics charges. Approximately half of the evidence presented at the three and one-half month trial related to Casamayor’s tax counts. The quantity of evidence, however, does not alone constitute specific and compelling prejudice. See United States v. Walker, 720 F.2d 1527, 1533-34 (11th Cir.1983), cert. denied, 465 U.S. 1108, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984). The tax-related charges were included to show that' Casamayor must have received bribes because his income and expenses far exceeded that which he earned in his employment with the Key West Police Department and other [1512]*1512legitimate sources. That Casamayor received bribes was an important part of the Government’s case. A separate trial on Casamayor’s tax counts would have resulted in extensive duplication of evidence. See United States v. Zicree, 605 F.2d 1381, 1386 (5th Cir.1979), modified on other grounds, 609 F.2d 826 (5th Cir.), cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980).

The district court’s repeated admonitory instructions that the income tax evidence could only be used against defendant Casa-mayor enabled the jury to separate the evidence relevant to each defendant and render fair and impartial verdicts. See Zicree, 605 F.2d at 1389. As a practical matter, the jury appears to have meticulously sifted the evidence by acquitting two defendants and by acquitting certain defendants of several counts charged in the indictment.

Detective Russell Barker contends that he should have been granted a severance in order to introduce defendant Aristides M. Brito’s testimony at a separate trial. On the eve of the trial, Detective Barker submitted co-defendant Brito’s affidavit stating, inter alia, that Brito would testify at a separate trial that he neither conspired with Detective Barker nor paid any protection money to Barker. See Byrd v. Wainwright, 428 F.2d 1017 (5th Cir.1970). The district court concluded, however, that this severance motion and accompanying affidavit were untimely and insufficient to warrant relief. See United States v. Hewes, 729 F.2d 1302, 1320 (11th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985). Such a decision is within the trial court’s discretion. United States v. Leichtman, 742 F.2d 598, 605 (11th Cir.1984). In any event, the proffered testimony was cumulative of the testimony of Key and Barker that no bribes were paid to Barker.

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Bluebook (online)
837 F.2d 1509, 1988 WL 7387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-casamayor-ca11-1988.