Unpublished Disposition, 935 F.2d 276 (9th Cir. 1991)

MEMORANDUM^** 

Michel Lavergne appeals his convictions following a jury trial for conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and for use of a firearm, in violation of 18 U.S.C. § 924(c). Lavergne contends that the district court erred by refusing to sever Lavergne's trial from the trial of his co-defendant, Dennis See. The government claims that Lavergne waived his right to raise this issue because he failed to renew the motion to sever at the close of all trial evidence. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

Generally, "failure to renew a motion to sever at the close of evidence at trial constitutes a waiver of the right to appellate review of a denial of such a motion." United States v. Free, 841 F.2d 321, 324 (9th Cir.), cert. denied, 486 U.S. 1046 (1988). "A timely renewed motion enables the trial court to assess whether a joinder is prejudicial at a time when the evidence is fully developed...." Id. Nevertheless, the issue may be preserved, absent a post-evidentiary renewal, where "the motion accompanies the introduction of evidence deemed prejudicial and a renewal at the close of all evidence would constitute an unnecessary formality." United States v. Kaplan, 554 F.2d 958, 965 (9th Cir.), cert. denied, 434 U.S. 956 (1977); see also Free, 841 F.2d at 324; United States v. Plache, 913 F.2d 1375, 1379 (9th Cir. 1990).

Here, Lavergne did not renew his motion to sever at the close of evidence at trial. Nevertheless, Lavergne argues that the Kaplan exception applies because he renewed the motion during the trial "when it became clear that evidence of See's extrajudicial statements were going to be introduced into evidence, which statements strained the credibility of See's defense posture severely and hence cast a pall of doubt over appellant Lavergne's defense."¹  Appellant's Reply Brief at 1.

Lavergne fails to explain how the proffered evidence actually prejudiced him. The government extracted all references to Lavergne by name in the statement and the district court did not "deem" the evidence prejudicial to Lavergne. Cf. Kaplan, 554 F.2d at 967 (defendants preserved issue of severance by renewing motion when key witness refused to testify and attorneys sufficiently demonstrated exculpatory character of witness' expected testimony). Furthermore, the district court did not indicate that a renewal at a later time would be futile. See id. (district court previously indicated that a renewal of the motion would be useless). Therefore, Lavergne's failure to renew his motion deprived the district court of an opportunity to rule based on all the evidence and Lavergne has waived this issue for appeal. See Plache, 913 F.2d at 1379.

AFFIRMED.