USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 96-2182
UNITED STATES,
Appellee,
v.
ADOLFO MAGANA,
Defendant - Appellant.
____________________
No. 96-2183
UNITED STATES,
Appellee,
v.
ANA MARIA MEDA-SANTOS,
Defendant - Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
____________________
Before
Stahl and Lynch, Circuit Judges,
and O'Toole, Jr., District Judge.
_____________________
Of the District of Massachusetts, sitting by designation.
Thomas J. Connolly
, by appointment of the court, for appellant
Adolfo Magana.
Bruce
M.
Merrill, by appointment of the court, with whom
Merrill & Merrill, P.A.
, was on brief for appellant Ana Maria Meda-
Santos.
F. Mark Terison, Assistant United States Attorney, with whom
Jay
P.
McCloskey, United States Attorney, and Donald
E.
Clark,
Assistant United States Attorney, were on brief for appellee.
____________________
September 16, 1997
____________________
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O'TOOLE,
District Judge
. Adolfo Magana was convicted by
a jury of entering into a sham marriage to evade the immigration
laws, in violation of 18 U.S.C. S 1325(b). His codefendant Ana
Maria Meda-Santos was convicted of aiding and abetting Magana's
crime. 18 U.S.C. S 2. Both defendants were also convicted of
conspiracy to defraud the United States. 18 U.S.C. S 371.
They appeal from their convictions, asserting that the
district court erred in the way it dealt with the government's
violation of a witness sequestration order. The defendants
criticize the district court's handling of the violation in three
respects. First, both defendants contend that the court erred in
denying their motions for a mistrial. In addition, Meda-Santos
argues that the court abused its discretion in striking the
redirect and Magana's recross-examination of the witness involved,
thereby depriving her of the opportunity for any recross-
examination of the witness. Finally, Meda-Santos objects to the
district court's denial of her pretrial severance motion, and she
points to the codefendants' disagreement as to how the court should
respond to the sequestration violation as evidence of prejudice to
her from the refusal to sever. The defendants further contend that
the court erred in denying them a pretrial opportunity for
discovery concerning their allegations of selective prosecution and
later in denying their motion for a new trial when events at trial
added support to the allegations.
For the reasons that follow, we find no error and affirm
the convictions.
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I.
Magana is a native and citizen of El Salvador who came to
the United States seeking asylum. He was granted leave to remain
in the country on a nonpermanent basis and to work while his
application for asylum pended. Magana and Meda-Santos were friends
who spent a substantial amount of time together. They both were
employed by the same company in Portland, Maine, as were two other
persons involved in relevant events, Tina Ferrante and Ronda
Cunningham.
Magana's legal status in this country was only temporary,
and if his application for asylum were to be rejected, he faced the
prospect of losing his right to remain legally within the United
States. In March 1995, his friend Meda-Santos approached her co-
worker Ferrante, a citizen, to see if she would agree to marry
Magana so he could become a permanent resident. Ferrante declined,
but she suggested her friend Cunningham for the scheme. On July
14, 1995, Magana, Meda-Santos, Ferrante, and Cunningham all met at
Magana's apartment and worked out the plan. Cunningham agreed to
marry Magana in exchange for $2,000.
A week later, Magana and Cunningham were married by a
justice of the peace at Magana's apartment in the presence of Meda-
Santos and Ferrante. That evening Cunningham received a partial
payment of the agreed price for her participation. There was
evidence that despite their marriage, Magana and Cunningham did not
live together as husband and wife.
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In late August, Magana and Cunningham completed and
submitted the forms required by the Immigration and Naturalization
Service ("INS") for an adjustment of Magana's status to permit him
permanent residence by reason of his marriage to a United States
citizen. In accordance with INS practice, after the forms had been
reviewed Magana and Cunningham were summoned to an interview at the
local INS office. In separate interviews, they gave inconsistent
information about their circumstances and living arrangements.
Each appeared to know little personal information about the other.
When Cunningham was confronted by the interviewer with the fact of
the inconsistencies, she confessed her participation in the scheme.
She was eventually given immunity in exchange for her cooperation
with the prosecution, and she was a key witness at the trial of the
defendants.
Both defendants filed pretrial motions to sever their
trials, which were denied by a magistrate judge for the reason that
neither had shown any likely prejudice from a joint trial. The
defendants also sought pretrial discovery from the government to
support their claim that these defendants, Spanish-speaking non-
citizens, were victims of selective prosecution because of their
ethnicity and national origin. The district court refused to order
the requested discovery.
Ferrante also cooperated with the prosecution and was not
charged, although it does not appear that she was granted immunity.
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At the commencement of the trial, counsel for Magana
moved orally for the sequestration of witnesses. The court granted
the motion, saying, "Yes, and I'll rely on all counsel to watch the
courtroom to let me know whether there's anyone in who should not
be present." Trial Transcript ("Tr.") at 3. Nothing further was
said about any specific terms of the sequestration order.
The first trial day ended with the important government
witness Cunningham on the stand. She had given extensive testimony
on direct examination and had been cross-examined at length by
counsel for both defendants. The prosecutor indicated that he
would have some redirect examination when the trial resumed the
next day.
After redirect examination that lasted just over fifteen
minutes, counsel for Magana conducted recross-examination, in the
course of which the witness disclosed, in answer to a question,
that she had talked to the prosecutor about her testimony during
the overnight recess.
Defense counsel immediately protested that there had been
a violation of the witness sequestration order, and they moved for
a mistrial. The court denied the motions. Although the court
found that the prosecutor had violated the sequestration order, it
also concluded that there was no prejudice to the defendants from
the violation. The court said, "[T]he redirect, although competent
redirect, certainly, did not significantly impair whatever value
The district court was moved to observe, twice, that the
questioning had become repetitive. Tr. at 228, 261.
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there was in the cross-examination that took place yesterday."
Tr. at 266. Moreover, the court found that the violation of the
sequestration order had been unintentional, the result of a
misunderstanding by the prosecutor of the scope of the order.
After denying the mistrial motions, the court extended to
defense counsel the option of continuing the recross in front of
the jury or of conducting a
voir dire
, outside the presence of the
jury, to determine the discussions that had occurred between the
witness and the prosecutor. The court said: "I certainly will
permit cross-examination about the nature of the meeting this
morning, what was said or suggested, and the only issue is whether
you request to do that now before doing it in front of the jury, or
whether you would rather do it once with the witness present in
front of the jury." Tr. at 267. After conferring, counsel elected
to conduct a voir dire.
In the voir dire, Cunningham testified that she had met
for fifteen to twenty minutes that morning with the Assistant
United States Attorney and an INS Special Agent. She testified
that the prosecutor went over the questions he intended to ask her
in the course of redirect examination, identifying the particular
parts of the cross-examination that the questions were intended to
address. She testified that she was not told how she should answer
the questions that would be asked.
Counsel for both defendants asked that Cunningham's
testimony that day be stricken. Tr. at 264. One of them
summarized the testimony as indicating that "the U.S. Attorney's
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Office essentially did a practice run of the redirect examination
today." Tr. at 285. Counsel argued that the rehearsal gave the
prosecution an unfair advantage that it would have lacked if the
sequestration order had been obeyed.
After a short recess to consider the matter, the district
court confirmed its denial of the defense motions for a mistrial,
and further said:
Counsel, I am considering striking the
testimony for reasons I'll describe in a
moment, but before I do that, I want to be
sure that the defendants' lawyers fully
appreciate and understand what they're
doing on this score. I've denied the
motion for mistrial. If I strike the
testimony, Ms. Cunningham will not take
the stand any further, she will be done as
a witness.
That means that the cross-examination that
took place this morning as well as the
direct will all come out, as well as the
Defendant's Exhibit 9 that was admitted,
the Government's Exhibit 200, the
cooperation agreement. That may be able to
come in in some other fashion, and
therefore, the defendants are choosing not
to explore any further credibility issues
or reliability issues concerning Ms.
Cunningham.
I want to be sure that's being done
carefully and intentionally because if I
grant the motion to strike the testimony
this morning, what I'll be instructing the
jury to do is to consider only the
testimony of Ms. Cunningham that was given
yesterday on direct and cross.
There is no doubt that the court meant "recross-examination" and
"redirect."
Exhibit 9 was a receipt from INS for money paid to it by
Cunningham.
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Tr. at 288-89.
At this point defense counsel requested disparate relief.
Counsel for Magana asked that the testimony be stricken; counsel
for Meda-Santos, who unlike Magana's counsel had yet to ask any
questions on recross, withdrew his motion to strike the testimony
and insisted on the opportunity to conduct recross-examination.
The court struck the testimony, both redirect and
recross, and instructed the jury that they should disregard it and
consider only the testimony the witness had given the day before.
Neither party objected to the instruction given to the jury.
The court also told counsel:
Now I'm cognizant of [Meda-Santos'
counsel's] argument that there's certain
things he would like to get out of this
witness, possibly he will want to call her
on his direct case, that's entirely up to
[him].
Tr. at 291. Counsel for Meda-Santos asked that Cunningham be
advised to remain "on call" for further testimony, but he did not
later call Cunningham as a witness.
II.
A.
The sequestration of trial witnesses is a practice of
long standing, and it may take various forms. "The judge's power to
control the progress and, within the limits of the adversary
system, the shape of the trial includes broad power to sequester
witnesses before, during, and after their testimony." Geders v.
United States, 425 U.S. 80, 87 (1976). Until the adoption of the
Federal Rules of Evidence, however, there was no positive rule
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governing the practice generally in the federal courts, except that
the matter was committed to the sound discretion of the trial
court. See
Holder v.
United States
, 150 U.S. 91, 92 (1893). Rule
615 now requires the court, upon a party's request, to "order
witnesses excluded so that they cannot hear the testimony of other
witnesses." Fed. R. Evid. 615. See
United States
v.
Sepulveda, 15
F.3d 1161, 1175-76 (1st Cir. 1993);
United States
v.
Arias-Santana,
964 F.2d 1262, 1266 (1st Cir. 1992).
Apart from this "heartland" of courtroom sequestration
mandated by Rule 615, the court retains discretion to add other
restrictions or not, as it judges appropriate. Sepulveda, 15 F.3d
at 1176 ("Outside of the heartland, the district court may make
whatever provisions it deems necessary to manage trials in the
interests of justice."). The regulation of witness conduct outside
the courtroom is thus left to the district judge's discretion.
Id.
The court may, for example, order that witnesses not converse with
each other about the case. See Arias-Santana, 964 F.2d at 1266.
Further, the court has the discretion to prohibit counsel from
conferring with a witness during the witness's testimony, including
during any recesses in the trial. See Geders, 425 U.S. at 87-88.
In this case the court granted Magana's oral motion for
sequestration of witnesses without elaborating the terms of the
order. It appears that the court assumed counsel's familiarity with
a long-standing custom in the district that precluded counsel from
conferring with a witness until the witness had been excused from
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the stand. As it happened, the prosecutor had only recently
relocated to the district and was not familiar with the local
practice. Indeed, the judge noted that this was the prosecutor's
first trial before him. Nevertheless, it was not unreasonable for
the court to presume that an Assistant United States Attorney would
be familiar not only with the written rules of local practice, but
also with those unwritten rules that had, by repeated application
over time, become established as a "custom" of practice in the
court. It is plain that the district court regarded the
prohibition against conferring with a testifying witness as such an
established custom, and we have no reason to question that
assessment.
The district court concluded that the prosecutor's
transgression had been inadvertent, "based on a misunderstanding of
the rule." Tr. at 290. The defendants do not quarrel with that
conclusion, and the record gives us no reason to doubt it. Because
the violation was inadvertent, there was no need for any punitive
sanction, and the focus of the court's response was properly on
The district judge announced that he found the prosecutor's
meeting with the witness to be "a clear violation of the practices
of the court," and added, "I can't at the moment remember whether
it's specified in the local rules or whether it's simply a custom
that has been so long assumed that it's not present there." Tr. at
266. See also
Tr. at 262. In fact, the district's local rules do
not address the matter. See Local Rules of the United States
District Court for the District of Maine. To avoid the problem
that arose in this case, a district court may find it advisable to
promulgate, by local rule or otherwise, standard terms for witness
sequestration orders.
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what needed to be done to prevent any prejudice to the defendants
from the violation.
-12-
As the district court has discretion in fashioning
sequestration orders, it likewise has discretion in enforcing them.
Arias-Santana, 964 F.2d at 1266 ("[T]he sanction determination is
committed to the sound discretion of the trial court."). See also
United States
v.
Rossetti, 768 F.2d 12, 16 (1st Cir. 1985);
United
States v.
Arruda, 715 F.2d 671, 684 (1st Cir. 1983). We review the
district court's action only to see if there was an abuse of that
discretion. Arias-Santana, 964 F.2d at 1265;
Rossetti, 768 F.2d at
16. There was not.
We have recommended the course a district court should
follow to deal with a situation in which evidence somehow improper
is put before the jury: the court should strike the offending
evidence and promptly instruct the jury to disregard it.
Sepulveda, 15 F.3d at 1184. "[W]ithin wide margins, the potential
for prejudice stemming from improper testimony . . . can be
satisfactorily dispelled by appropriate curative instructions."
Id. Jurors are presumed to follow such instructions, except in
extreme cases. Id. at 1185.
The district judge took exactly those steps. He responded
promptly to the problem. "Swiftness in judicial response is an
important element in alleviating prejudice once the jury has been
exposed to improper testimony." Id. He permitted counsel to
examine the witness about her conversation with the prosecutor and
gave the defendants the choice to do that either in the presence of
the jury or on voir
dire. After the voir
dire, he carefully
evaluated the possibility of prejudice to the defendants before
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determining to strike the testimony, and even after making the
tentative decision, he took steps to assure that counsel had
considered fully what impact striking the testimony might have on
the state of the evidence.
The circumstances did not call for more extreme action.
"Declaring a mistrial is a last resort, only to be implemented if
the taint is ineradicable, that is, only if the trial judge
believes that the jury's exposure to the evidence is likely to
prove beyond realistic hope of repair." Id. at 1184.
The significance of the evidence that was stricken was
not great in the context of Cunningham's entire testimony. There
had been extended cross-examination by both defendants the day
before. The redirect itself was relatively brief, and the court
found that it "did not significantly impair whatever value there
was" in the previous cross-examination. Tr. at 266. Because of the
relative brevity of the redirect, and because it was clearly
separated from the balance of the witness's testimony by the
overnight recess, the court concluded that the jury could
realistically follow the instruction to put it out of their minds
and to consider only the previous day's testimony by the witness.
Accordingly, the court decided that striking the testimony and
giving an appropriate instruction was a sufficient remedy. Our
review of the record gives us no basis to say that that judgment
was clearly wrong.
An abuse of discretion might be shown if the district court has
made "a clear error of judgment." United States v. Hastings, 847
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Meda-Santos further contends that striking the testimony
deprived her of the opportunity, which Magana briefly had, to
conduct recross-examination of the witness. The court should have
left the tainted testimony alone, she says, and let her take
advantage of it on recross. To the extent that this argument
amounts to an assertion that the redirect examination was so potent
that the jury could not realistically be expected to follow the
instruction to disregard the testimony, we reject it for the
reasons just stated. To the extent it is an objection that the
defendant was deprived of a tactical weapon she might have had in
the forensic battle, it is insubstantial. She had conducted a full
cross-examination of the witness the day before, and in these
circumstances any suggestion that the loss of an opportunity for
recross amounted to a substantial infringement of her rights under
the Confrontation Clause borders on the frivolous. See United
States v. Mulinelli-Navas, 111 F.3d 983, 987 (1st Cir. 1997).
Besides, the premise of the objection is infirm. Meda-
Santos was not foreclosed from any further inquiry, as she claims.
The court made clear that she could recall Cunningham to the stand
as part of her case. She now says that it is unlikely that the
court, having stricken the redirect, would have permitted her to
question Cunningham about her meeting with the prosecutor, but the
accuracy of that proposition is by no means clear. Meda-Santos
never took up the opportunity opened to her to recall Cunningham,
and how the district court would have responded to an attempt to
F.2d 920, 924 (1st Cir. 1988).
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inquire into the meeting with the prosecutor is a matter for
speculation. We cannot find an abuse of discretion just because
the appellant suggests that one of the district court's potential
responses might have prejudiced her were it to have occurred.
Finally, Meda-Santos claims that the district court's
handling of the violation of the sequestration order demonstrates
why it was an error for the court to have denied her pretrial
motion to sever her trial from Magana's. The pretrial motion to
sever was based on Bruton grounds. Meda-Santos does not now
contend that it was error to have denied the motion on those
grounds. Rather, she asserts a more general conflict that became
evident when, faced with inconsistent requests for action from the
codefendants, the court necessarily had to choose one and reject
the other. If Meda-Santos had been tried separately, that
conflict would not have arisen, and she could have gotten the
ruling she wanted, instead of having to live with the ruling Magana
wanted.
Meda-Santos did not request severance when she and Magana
sought different remedies for the violation of the sequestration
order. Her failure to have made the argument to the trial court
precludes her from raising it for the first time in this appeal.
Accordingly, we review the point only for plain error, United
States v.
Mitchell, 85 F.3d 800, 807 (1st Cir. 1996), and there was
none.
Bruton v. United States, 391 U.S. 123 (1968).
-16-
There are obvious advantages in judicial economy to the
joint trial of defendants accused of the joint commission of
crimes. See Zafiro v. United
States, 506 U.S. 534, 537 (1993);
United
States v.
O'Bryant, 998 F.2d 21, 25 (1st Cir. 1993). See
also Fed. R. Crim. P. 8. Like other important trial management
decisions, the judgment whether to sever is largely left to the
sound discretion of the trial court. United
States v. Flores-
Rivera, 56 F.3d 319, 325 (1st Cir. 1995). The exercise of that
discretion will be condemned only where it deprives a defendant of
a fair trial, resulting in a miscarriage of justice.
United States
v.
McLaughlin, 957 F.2d 12, 18 (1st Cir. 1992);
Arruda, 715 F.2d at
679. There was nothing approaching that degree of prejudice to
Meda-Santos, if there was any recognizable prejudice at all, from
denial of the severance motion.
Evidence is often admitted against one defendant but not
another in a joint trial, with limiting instructions being given
the jury. Sometimes evidence is conditionally admitted, subject to
its being stricken if the subsequent predicate does not materialize
as anticipated. It is not at all an uncommon event that the
strategies of defense counsel or the nuances of the rules of
evidence will lead codefendants to differ as to the admission of
evidence in a joint trial. Each time that happens is not an
occasion for severance. See McLaughlin, 957 F.2d at 18.
All in all, the trial court's handling of the
government's violation of the witness sequestration order was not
only acceptable, but admirable. There was no abuse of discretion.
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B.
Prior to trial, the defendants sought discovery from the
government to try to substantiate their claim that they were the
victims of selective prosecution because of their ethnicity and/or
national origin. In support of their motion, they pointed to press
accounts of INS enforcement actions aimed at Spanish-speaking
persons. The motion was denied on the ground that the defendants
had not made a sufficient showing of the likelihood of selective
prosecution to warrant the extraordinary discovery they were
seeking. After their convictions, the defendants moved for a new
trial, relying on the selective prosecution claim. In support of
the latter motion, they added to their prior presentation the
assertion that the trial itself had demonstrated that the
government had chosen to prosecute only the Spanish-speaking
defendants while choosing not to prosecute the other participants
in the relevant events -- Cunningham and Ferrante -- who were not
Spanish-speaking. The new trial motion was denied.
Because a selective prosecution claim "asks a court to
exercise judicial power over a 'special province' of the
Executive," United
States v. Armstrong, 116 S. Ct. 1480, 1486
(1996), courts have consistently demanded "clear evidence," id.
(quoting United
States v. Chemical
Found., 272 U.S. 1, 14-15
(1926)), that a prosecutorial decision "had a discriminatory
effect and that it was motivated by a discriminatory purpose."
Armstrong, 116 S. Ct. at 1487 (quoting
Wayte v.
United States
, 470
U.S. 598, 608 (1985)). The prosecutor is presumed to have acted
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"in good faith for reasons of sound governmental policy," United
States v. Saade, 652 F.2d 1126, 1135 (1st Cir. 1981), unless the
defendant can demonstrate both that she has been singled out for
prosecution when others similarly situated have not been prosecuted
and that the prosecutor's reasons for doing so were impermissible.
United States
v.
Penagaricano-Soler, 911 F.2d 833, 837-38 (1st Cir.
1990).
Discovery concerning decisions to prosecute imposes
substantial costs on the prosecutor. It intrudes on "the
performance of a core executive constitutional function."
Armstrong, 116 S. Ct. at 1486. It may "divert prosecutors'
resources and may disclose the Government's prosecutorial
strategy." Id. at 1488. For these reasons, "[t]he justifications
for a rigorous standard for the elements of a selective-prosection
claim thus require a correspondingly rigorous standard for
discovery in aid of such a claim." Id.
The defendants did not make a sufficient prima facie
showing of either discriminatory effect or discriminatory intent to
justify the discovery they requested. Their pretrial motions
relied only on a newspaper article about the arrest by the INS of
four "illegal aliens" from El Salvador and Guatemala, the videotape
of the INS interview of Magana and Cunningham (which displayed,
according to the defendants, ethnic prejudice by the INS agent),
and an unsworn statement that there were seventeen Spanish-
speaking persons in INS custody in the local county jail. The
district court properly determined that this showing fell short of
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what the cases require. At most, these facts, viewed favorably to
the defendants, established that Spanish-speaking persons were
being prosecuted by the INS. The materials contained no
information about INS prosecutions, or the absence of them, of non-
Spanish-speaking persons. The information presented thus addressed
only one half of the critical proposition. In order to be
permitted discovery in this area, the defendants were required to
make a threshold showing that there were similarly situated persons
who were not prosecuted. Armstrong, 116 S. Ct. at 1489. Their
proffer failed to do that.
When they renewed their attack on this front in their
motions for a new trial, the defendants added to the pretrial
proffer the assertion that their trial itself showed the different
treatment of non-Spanish-speaking persons, because Cunningham and
Ferrante, both of whom participated in the same criminal events as
the defendants, were not charged. That contention merits closer
attention than the pretrial effort, but it nonetheless falls short
of meeting the "rigorous standard" established by the cases. At
most, the circumstance that Cunningham and Ferrante were not
charged raises the question of selective prosecution; it does not
make the prima facie showing required.
See
Penagaricano-Soler, 911
F.2d at 837.
There are many factors that affect a decision to
prosecute a particular person, including "the strength of the case,
the prosecution's general deterrence value, the Government's
enforcement priorities, and the case's relationship to the
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Government's overall enforcement plan." Wayte, 470 U.S. at 607.
There are readily apparent nondiscriminatory reasons why Cunningham
and Ferrante were not charged. When the sham marriage scheme was
detected, Cunningham promptly confessed her role and agreed to
cooperate with officials, and the consequence of her cooperation
was freedom from prosecution. Her cooperation was a justifiable
reason for the prosecutor's decision not to charge her. Ferrante
had played a less central role in events. In fact, she had refused
a leading role. The prosecutor might well have estimated that
proving her criminal culpability was more problematic than it was
for the others. She also apparently cooperated with the Government
at the trial, and that again was a legitimate consideration for the
prosecutor to take into account. Neither the denial of the
pretrial motions for discovery nor the denial of the new trial
motions constituted an abuse of its discretion by the trial court.
III.
The claims of error brought to us by the defendants are
without merit. The judgments of conviction, and the denial of the
defendants' new trial motions, are affirmed.
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