United States v. Gilberto Gonzalez

804 F.2d 691, 1986 U.S. App. LEXIS 33850

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 19, 1986
• Docket: 85-5514
• Status: Published

Opinions

PER CURIAM:

In a joint trial, a jury found Anselmo Lopez and Gilberto Gonzalez guilty of knowingly and intentionally possessing with the intent to distribute cocaine in violation of 21 U.S.C. § 955c (1982) and Gilberto Gonzalez guilty of knowingly and intentionally possessing with the intent to distribute cocaine in violation of 21 U.S.C. § 955a(a) (1982). The district court sentenced Gonzalez to two fifteen year prison terms to run concurrently and imposed a fine of $5,000.00. The sole issue Gonzalez raises on appeal is whether the district court erred in denying his motions for severance. After careful review of the record, we reverse and remand for a new trial.

I. FACTS

The facts that concern us on appeal are as follows:

On December 12, 1984, a United States Coast Guard Cutter CAPE SHOALWATER spotted the BAHAMAS TRANSPORTER, a large freighter, towing a small cabin cruiser, the JUAN CARLOS I. Approximately nine miles off the Florida coast at about 10:30 p.m. Lieutenant Robert Al-bright, the commanding officer of the CAPE SHOALWATER made radio contact with the BAHAMAS TRANSPORTER and ascertained the nationality of the boat they were towing as a United States vessel with Florida registration numbers. Albright then brought the SHOALWATER alongside the JUAN CARLOS I and decided to board the vessel for a Coast Guard inspection to determine whether the boat complied with all federal laws and regulations. A routine inspection includes, inter alia, checking fire extinguishers, life preservers, a check for proper ventilation, oil in the bilges and oil in the engine compartments.

The boarding party, consisting of two petty officers, lifted the engine compartment covers and reached down to inspect the engines and the surrounding equipment. The petty officer inspecting the engine compartment found two blue boxes containing a white powdery substance.¹ Anselmo Lopez was the only person found onboard the JUAN CARLOS I. Lopez was transported over to the CAPE SHOALWA-TER and placed under arrest.

When the CAPE SHOALWATER approached the BAHAMAS TRANSPORTER, Lieutenant Albright instructed petty officer Daum to “pick up the owner of the JUAN CARLOS I.” When the officer asked the owner of the JUAN CARLOS I to step forward, Gonzalez got onto the boal. After being transported to the CAPE SHOALWATER Gonzalez was given the Miranda warnings and placed under arrest.

Appellants were transported aboard the CAPE SHOALWATER to Miami, Florida and met by Mike Ricciardo, an agent associated with the Florida Joint Task Group. Lieutenant Albright introduced the two people from the JUAN CARLOS pointing out Gonzalez as the owner and Lopez as the operator. Appellant Gonzalez responded, “I don’t have anything to do with that boal. I am not the owner. I don’t know anything about it.” Agent Ricciardo then interviewed both Lopez and Gonzalez.

At trial, Lopez testified that a customer named Carlos requested him to go to Bimini to repair the JUAN CARLOS. He would be paid $500.00 for the job. Carlos made all the travel arrangements and once in Bimini Lopez found that the propellers on the JUAN CARLOS were broken and the boat would have to be towed to Miami to be fixed. Lopez never attempted to start the engines because “the whole boat would fall apart.” Lopez testified that he was in Bimini for approximately “two and one-half days, more or less,” and both Carlos and Gonzalez were present. Lopez further testified that Gonzalez represented himself as the owner of the JUAN CARLOS I. When asked whether he saw any documents pertaining to ownership of this particular vessel Lopez responded that he saw Gonzalez take out the registration, tear it up and dump it in the water. Lopez stated that Carlos and Gonzalez went to the office together allegedly to rent the BAHAMAS TRANSPORTER to tow the JUAN CARLOS I to Miami. Lopez testified that while both he and Gonzalez started on board the JUAN CARLOS I, Gonzalez jumped to the tugboat so that he could watch the tow rope during the course of the trip. Lopez testified that Gonzalez instructed him to remain on board the JUAN CARLOS I to keep a leak under control by bailing out water.

Apparently as a surprise to most participants, Lopez also testified that Gonzalez had the engine key with him in jail and that he threw it between the bench and the wall of the cellblock while they were being held for a bond hearing. After Lopez testified that Gonzalez threw the key between the bench and the wall in the cellblock, the Assistant United States Attorney made a motion to reopen the government’s case and for a recess asking that the Marshal take the attorney defending Lopez, himself and Agent Ricciardo to where this key was allegedly hidden. Agent Ricciardo found the key, turned toward the door and Gonzalez spontaneously uttered, “The Coast Guard put that there.” The key fit the ignition of the JUAN CARLOS I.

Appellant Gonzalez took the stand and testified that a “Fernando” contracted him to take approximately forty-eight quarts of oil to Bimini for which he would receive payment of one thousand dollars. Gonzalez testified that he borrowed the JUAN CARLOS I from a friend, Alfonso Majera, and Fernando operated the vessel to Bimini. He further testified that Alfonso Maj-era was the registered owner of the vessel. At the entrance of Bimini Harbor the boat ran aground and Gonzalez testified that arrangements were made for him to return to Miami aboard the BAHAMAS TRANSPORTER. Gonzalez testified that he was never aboard the JUAN CARLOS I on the journey back to Miami. He boarded the BAHAMAS TRANSPORTER from the inception of the trip in Bimini. Gonzalez was arrested aboard the BAHAMAS TRANSPORTER en route to Miami.

Gonzalez met Lopez for the first time in Bimini. He testified that he saw Lopez and another man put something on the boat and “something seemed suspicious.” He testified that the only time he saw Lopez after the arrest was at the Metropolitan Correctional Center (MCC) where Lopez told him that he was going to implicate Gonzalez because he hadn’t been given a bond, and his family had not received money. Gonzalez said that he had nothing to do with a bond for Lopez and never offered him any money to testify on his behalf. Gonzalez testified that Lopez said, “I am going to get you into trouble.”

Gonzalez denied tearing up the registration and hiding the key to the vessel in the cellblock. Gonzalez testified that he gave both the key to the JUAN CARLOS I and the certificate of registration to Fernando who intended to buy the boal. Both Lopez and Gonzalez denied having any knowledge of cocaine on board the JUAN CARLOS I.

II. SEVERANCE

Appellant Gonzalez contends that the district court abused its discretion in denying his repeated motions for severance pursuant to Fed.R.Crim.P. 14.² Gonzalez argues that the mutually antagonistic defenses presented created prejudice resulting in an unfair trial. We agree.

It is well established that persons who are jointly indicted shall be tried together. United States v. Esle, 743 F.2d 1465, 1476 (11th Cir.1984). This rule applies with particular force to conspiracy cases. United States v. Alvarez, 755 F.2d 830, 857 (11th Cir.), cert. denied, — U.S. —, 106 S.Ct. 274, 88 L.Ed.2d 235 (1985). We will only reverse a district court’s denial of severance under Fed.R.Crim.P. 14 for an abuse of discretion, United States v. Magdaniel-Mora, 746 F.2d 715, 718 (11th Cir.1984), and we are reluctant to second guess a district court’s decision to deny a motion for severance. Alvarez, 755 F.2d at 857 (citations omitted). Rule 14 requires the district court to balance the right of defendants to a fair trial, absent the prejudice inherent in a joint trial, against the interests of judicial economy and efficiency. United States v. Newes, 729 F.2d 1302, 1318 (11th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985).

To establish an abuse of discretion, appellant “must demonstrate that without severance he was unable to receive a fair trial and that he suffered compelling prejudice against which the trial court could offer no protection.” Magdaniel-Mora, 746 F.2d at 718. (citations omitted). The standard the district court must apply in a case claiming antagonistic defenses is set forth in United States v. Berkowitz, 662 F.2d 1127, 1134 (5th Cir. Unit B 1981).³ Severance of a defendant is compelled if the defenses are antagonistic and mutually exclusive. “[I]f the jury, in order to believe the core of the testimony offered on behalf of that defendant, must necessarily disbelieve the testimony offered on behalf of his co-defendant,” severance is compelled. In that situation, the co-defendants “become the government’s best witnesses against each other.” Id. at 1134. “Ultimately, the test is whether the defendant received a fair trial.” Id.

The record discloses that the defenses asserted by Lopez and Gonzalez were irreconcilable and mutually exclusive. Lopez incriminated Gonzalez at every opportunity. Lopez testified that he saw Gonzalez tearing up the registration for the boal. He testified that while he and Gonzalez were in the cell awaiting the bond hearing he saw Gonzalez hide the key of the JUAN CARLOS I between the bench and the wall. He later told his lawyer who told the Assistant U.S. Attorney, the Marshal and Agent Ricciardo the place that Lopez had designated and the key was retrieved. The key was offered into evidence. The gist of Lopez’s defense was that Gonzalez owned and/or had control of the boat; owned the cocaine and attempted, by a bribe, to hide those facts. It is apparent that Lopez introduced the key into evidence in support of his defense theory. The jury, in order to believe the testimony offered by Lopez that Gonzalez hid the key which supported his defense that Gonzalez had control over the boat and the cocaine, had to disbelieve Gonzalez when he testified that he did not own the boat, tear up the registration or hide the key. In addition, it is clear that by offering testimony about Gonzalez hiding the engine key Lopez became the government’s best witness. We find compelling prejudice from a co-defendant’s defense when that defense entails presentation of this sort of evidence. Cf, United States v. Van Horn, 789 F.2d 1492,1506 (11th Cir.1986) (citation omitted). (It would be unusual to find compelling prejudice from a co-defendant’s defense when that defense did not entail presentation of evidence). Even though Gonzalez attempted to show that he was not culpable, under the Berkowitz standard, these inherently prejudicial conditions created a fundamentally unfair trial.

Appellant Gonzalez also contends that counsel for Lopez spent more time in closing argument placing blame on Gonzalez than exonerating his own client. Counsel for Lopez continually called Gonzalez a liar and urged the jury to so conclude. Lopez’s attorney declared:

... [0]ne individual got up [there] with one purpose in mind. His [Gonzalez] only purpose was to fool you____ He was squirming. This man lied to Agent Ricciardo, lied to the Coast Guard, lied to everybody____ He’s caught, and every time he’s caught, he lies and lies again.

The government asserts that comments of counsel are not evidence and cannot be considered as such, citing United States v. Mota, 598 F.2d 995 (5th Cir.1979), cert. denied, 444 U.S. 1084, 100 S.Ct. 1042, 62 L.Ed.2d 770 (1980).⁴ This statement is technically correct. However, we hold that Lopez’s counsel made the kinds of accusations under the circumstances that is sufficient to create an antagonistic defense. See United States v. Romanello, 726 F.2d 173, 178 (5th Cir.1984). “An accusation by counsel can state the core of his client’s defense and cast blame on the co-defendant.” Id. at 179. In this case Lopez’s counsel, in effect, told the jury that Gonzalez was guilty. He stated:

... [Lopez] was duped by this individual and others who participated in a scheme to import cocaine into the United States, to break the laws of the United States, ... and that the owner of the cocaine was the overseer, Gilberto Gonzalez, who was sitting on the other vessel, watching his property.

We find that Lopez’s counsel took an adversarial stance that generated trial conditions so prejudicial to Gonzalez as to deny him a fair trial. United States v. Sheikh, 654 F.2d 1057, 1066 (5th Cir. Unit A 1981), cert. denied, 455 U.S. 991, 102 S.Ct. 1617, 71 L.Ed.2d 852 (1982). (citations omitted). The comments were proper insofar as Lopez was concerned as they were based upon evidence received during the trial. They highlight, however, the irreconcilable and antagonistic positions of Lopez and Gonzalez.

Appellant Gonzalez further asserts that he was forced to take the stand to counter Lopez’s assertions. The government contends that the testimony Lopez provided at trial would have been offered by the government in any subsequent trial of Gonzalez. In United States v. Andrews, 765 F.2d 1491 (11th Cir.1985), cert. denied, — U.S. —, 106 S.Ct. 815, 88 L.Ed.2d 789 (1986), the court stated that since evidence would most likely have been offered in a separate trial, appellant did not appear to have been prejudiced from the joint trial. Id. at 1498. The statements made in Andrews, however, related almost exclusively to presence at an encounter, a seemingly peripheral matter. The statements in Andrews did not indicate a knowing participation in any incriminating transaction. In this case, Lopez’s statements were extremely inculpatory against Gonzalez and there is no way to predict whether a separate trial would be different. Each case must be evaluated based upon the peculiar facts presented. Under these specific circumstances, we conclude Gonzalez should have been afforded a separate trial.

III. CONCLUSION

A severance of Gonzalez’s case was required under these particular circumstances. There were only two defendants, the evidence was uncomplicated and it would neither have been too time consuming nor impracticable to have two separate trials. “Although the evidence of each defendant’s individual guilt was strong, this joint trial was intrinsically prejudicial.” United States v. Crawford, 581 F.2d 489, 492 (5th Cir.1978).⁵ Fundamental fairness is our paramount concern; we therefore REVERSE Gonzalez’s conviction and REMAND for a new trial.

1 . The white powdery substance was transported to the CAPE SHOALWATER where it was field tested positive for cocaine. The parties stipulated the cocaine weighed 2,010 grams and was ninety-four percent pure.

2 . Counsel for Gonzalez filed a motion for severance before trial; repeated the motion at the close of the government’s case in chief, during the testimony of the co-defendant, at the close of the government’s rebuttal, and before the jury retired. Each time it was denied.

3 . Unit B decisions of the former Fifth Circuit rendered after September 30, 1981 are binding precedent in this circuit. Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.1982).

4 . In Mota, the court concluded that Mota was not prejudiced by counsel’s closing argument in which he stated, ”[W]hat we are here about ... is not whether there was a cocaine transaction. It is not whether or not somebody broke the law, but whether or not somebody is guilty. Juan Flores is not guilty under the law." 598 F.2d at 1000 n. 3. We find Lopez’s counsel’s remarks easily distinguishable.

5 . In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.