Unpublished Disposition, 930 F.2d 30 (9th Cir. 1991)

MEMORANDUM^** 

Appellant appeals his conviction and sentence for conspiring to possess a controlled substance with intent to distribute in violation of 21 U.S.C. § 846, 841(a) (1). He claims that the district court erred in refusing to sever his trial from that of his codefendant Mohamed and in calculating his offense level at sentencing.

* Appellant argues that severance should have been granted because his codefendant Mohamed's defense was antagonistic with his own. Our review is for abuse of discretion. United States v. Sherlock, 865 F.2d 1069, 1080 (9th Cir. 1989). Severance is required only when the defenses "are antagonistic to the point of being mutually exclusive." United States v. Ramirez, 710 F.2d 535, 546 (9th Cir. 1983) (quoting United States v. Marable, 574 F.2d 224, 231 (5th Cir. 1978)).

Appellant's defense here was that he was not involved in a conspiracy to sell drugs; he had invited others to his home in order to buy and sell fighting cocks. Mohamed's defense, on the other hand, was that, although he had gone to appellant's house to test some cocaine, he had not yet decided to buy and had not yet joined any conspiracy. In the course of trial, Mohamed's counsel impeached another of the coconspirators, who admitted that he had originally testified to a cock sale, not a drug sale, in order to protect appellant.

The conflict between Mohamed's defense and appellant's is not sufficient to make the defenses mutually exclusive. The jury could have believed appellant's story that he had not joined the drug conspiracy while also believing Mohamed's story. The jury could have believed that cock sales and cocaine sales were both to be made that day at appellant's house.

Appellant also contends that the manner in which Mohamed's attorney conducted the defense forced appellant to defend against two prosecutors. See United States v. Ziperstein, 601 F.2d 281, 286 (7th Cir. 1979) ("even if the nature of the defenses themselves did not require a severance, it is still possible that the defendants could have been prejudiced by the actual conduct of a co-defendant's defense."), cert. denied, 444 U.S. 1031 (1980). However, courts have found compelling prejudice only when an antagonistic defendant's counsel implicated his codefendant at every opportunity. See United States v. Romanello, 726 F.2d 173, 178-81 (5th Cir. 1984); United States v. Johnson, 478 F.2d 1129, 1133 (5th Cir. 1973). Mohamed's counsel in this case never even mentioned appellant and stated in closing argument that he could not comment on the testimony of other defendants. Thus, the trial court did not abuse its discretion in refusing to sever appellant's trial.

II

Appellant also challenges the calculation of his offense level at sentencing. The district court used the offense level for 25 kilograms because that was the amount under negotiation, according to the evidence presented to the jury. Appellant argues that, while in general the amount under negotiation is the appropriate amount for determining the offense level in a drug conspiracy, there was no evidence in this case that the conspirators possessed enough money to buy that amount. Appellant refers to the Application Note to U.S.S.G. Sec. 2D1.4, which provides: "where the court finds that the defendant did not intend to produce and was not reasonably capable of producing the negotiated amount, the court shall exclude from the guideline calculation the amount that it finds the defendant did not intend to produce and was not reasonably capable of producing." (emphasis added). Appellant argues that because Mohamed, the only defendant who had the funds to buy the cocaine, was acquitted, the coconspirators were not capable of producing the negotiated amount.

The evidence did show, however, that the coconspirators intended to produce the negotiated amount through Mohamed. According to the application note, use of the negotiated amount is improper only if both the intent to produce and the ability to produce are absent.

AFFIRMED.