United States of America, Appellee, v. Jaime Gomez, Appellant.united States of America, Appellee, v. William Campuzano, Appellant.united States of America, Appellee, v. William Patrick Harris, Appellant, 838 F.2d 468 (4th Cir. 1987)

The defendants/appellants in these consolidated cases are Jaime Gomez, William Campuzano, and William Patrick Harris. On July 10, 1985, these defendants and ten other persons were charged with criminal activities in connection with the operation of a cocaine manufacturing facility in Gibsonville, North Carolina. Gomez and Campuzano were charged in the indictment with illegal manufacture of cocaine, and conspiracy to commit these offenses. (Counts 1, 5, and 6). Harris was likewise charged with conspiracy to obstruct justice, being an accessory after the fact, and witness intimidation. (Counts 7, 8, and 9).

Gomez, Campuzano, Harris, and one of the other defendants charged in the indictment, Walter Clark Lamb, entered pleas of not guilty. Gomez, Campuzano, and Harris each moved to sever his trial from the trial of the other defendants, pursuant to Rule 14 of the Federal Rules of Criminal Procedure. These motions were denied. Gomez and Campuzano moved to exclude from evidence on the ground of undue prejudice tape recordings and transcripts of conversations between defendant Lamb and C.N. Lucas, Jr., a government informant. The motion was denied. Harris moved to suppress evidence seized during an allegedly unlawful search of his trailer. This motion, too, was denied.

Gomez, Campuzano, Harris, and Lamb were tried together. At the close of the government's evidence, Harris moved for a judgment of acquittal on all charges against him. The district Court (Judge Bullock) granted this motion with respect to the witness intimidation charge (Count 9), but denied the motion with respect to the conspiracy to obstruct justice charge and the accessory charge (Counts 7 and 8). The jury returned verdicts of guilty against Gomez and Campuzano on all charges against them. The jury found Harris guilty of conspiracy to obstruct justice, but not guilty of being an accessory after the fact. Defendant Lamb was acquitted. Gomez, Campuzano, and Harris appeal.

I. Did the trial court commit error by failing to grant the

motion of Gomez, Campuzano, and Harris for severance?

Gomez and Campuzano argue that the district court erred in denying their motions for severance, because the evidence concerning Harris and Lamb's activities in a "cover-up" that was presented at trial prejudiced the jury against them. Gomez and Campuzano played no part in the cover-up, but they claim that the evidence concerning the cover-up "spilled over" onto them in the minds of the jury, resulting in prejudice. Harris makes the same claim of prejudice with respect to the evidence concerning the manufacture and distribution of cocaine by Gomez and Campuzano, activities in which Harris played no part. Gomez, Campuzano, and Harris contend that the district court's erroneous denial of their motions for severance entitles them to new trials. We disagree.

Particularly if a conspiracy is charged, the rule is that those persons who are indicted together should be tried together. United States v. Karas, 624 F.2d 500 (4th Cir. 1980), cert. denied, 449 U.S. 1078 (1981); United States v. Parodi, 703 F.2d 768, 779 (4th Cir. 1983). Disposition of a motion for severance is generally committed to the sound discretion of the trial court. Opper v. United States, 348 U.S. 84 (1954). In the Fourth Circuit, perhaps the best statement of the rule is that a denial of severance will be affirmed,

Unless the denial of a severance deprives the defendants of a fair trial and results in the complete miscarriage of justice, or was so manifestly prejudicial that it outweighed the dominant judicial concern with judicial economy and compelled the exercise of the trial court's discretion to sever.

Parodi, 703 F.2d at 780 (citations omitted). Further, what must be determined is whether the facts in the case demonstrate the jury's inability to appraise separately the evidence as to each defendant and render a fair and impartial verdict. United States v. Marszalkowski, 669 F.2d 655, 669 (11th Cir.), cert. denied, 459 U.S. 906 (1982).

With regard to Harris, it is clear that the trial court very carefully delineated the appropriate considerations for the jury in trying Harris along with the other defendants. The court stated several times that certain items of evidence should be received as to Gomez and Campuzano, but that such evidence had no relation to the charges against Harris. Moreover, since Harris was acquitted of the charge of being an accessory after the fact, it is clear that the jury considered each defendant separately and "compartmentalized" the evidence as it related to each. United States v. DeRosa, 670 F.2d 889 (9th Cir.), cert. denied, 459 U.S. 993 (1982).

Similarly, the district court adequately protected Gomez and Campuzano from any "spillover" of the evidence concerning Harris and Lamb. During the presentation of testimony concerning the cover-up charge against Harris and Lamb, the district court cautioned the jury on five occasions that it could not consider this evidence in determining the guilt or innocence of Gomez and Campuzano. The court repeated this admonition when it instructed the jury members prior to their deliberations. We find no reason to conclude that this careful effort on the part of the trial court was ignored or disregarded. As noted, the jury in the instance of the charges against Harris demonstrated its care in following such instructions.

For these reasons, we find that the trial court did not abuse its discretion in denying the motions for severance.

II. Did the trial court commit error in admitting evidence

that was unduly prejudicial to Gomez and Campuzano?

Gomez and Campuzano claim that the district court erred in admitting into evidence tapes and transcripts of two telephone conversations between defendant Lamb and Lucas, the government informant. The conversations between Lamb and Lucas related to these individuals' participation in the disposal of chemicals and equipment used in the cocaine manufacturing operation in April 1985, and included references by lamb to the Mafia, "the big boys," etc. Gomez and Campuzano contend that the admission of the tapes into evidence prejudiced them, because the jury could have erroneously inferred that Gomez and Campuzano either were the "big boys" referred to in the tapes or were closely associated with them.

Absent the finding that relevant evidence may be unduly prejudicial, as contrasted to its probative value, all relevant evidence is admissible. Fed.R.Evid. Sec. 402. Further, relevant evidence is any evidence "having a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. Sec. 401. As noted in United States v. Thevis, 665 F.2d 616, 634 (5th Cir.), cert. denied, 456 U.S. 1008 (1982), the court has a great deal of discretion in determining the relevance of any particular proffered evidence and in determining the proper balance of probative value versus undue prejudice. The decision of the trial court should not be disturbed absent an abuse of discretion.

Here it is apparent that the probative value of the tape evidence was of a critical nature to the charges against Harris and Lamb, embraced in Counts 7, 8, and 9 of the indictment. Further, the trial court and counsel very carefully redacted the transcript of the conversations with a view to making the telephone conversation transcripts directly applicable to the cases against Harris and Lamb. Having done this, the court then gave the usual instruction, directing the jury to limit consideration of the tape evidence only to Harris and Lamb. Even in the course of the playing of the taped conversation, the court again instructed the jury to limit its consideration of the tape evidence to Lamb and Harris only. In fact, as shown in the record, this cautionary instruction was given by the trial court on twelve separate occasions during the course of the trial, in an exemplary showing of the care of the trial court to prevent the "spill-over" of which the appellants complain.

The application fo Rule 403 must be "cautious and sparing." Thevis, supra, at 633-34. Here, the trial court's refusal to exclude the evidence under Rule 403 was a proper exercise of its discretion, given the caution the court used in redacting the tapes and the transcript of the tapes, and the care with which the court continued to impress upon the jury that the evidence was offered only as to Lamb and Harris.

III. Did the trial court commit error by failing to grant

the motion of Harris for suppression of certain evidence?

Harris filed a motion to suppress items seized during a search of his residence, contending that the entry into his house trailer pursuant to a search warrant was a violation of 18 U.S.C. § 3109, which provides,

The officer may break open any outer or inner door or windor of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance....

In construing Sec. 3109, this court has stated, "It is the rule that the time which must elapse after knocking and announcing their identity and purpose by the searching officers before breaking and entering varies with the exigencies of each case." United States v. Jackson, 585 F.2d 653, 662 (4th Cir. 1978).

In this case, there was conflicting evidence concerning the manner in which the DEA agents had entered Harris' trailer. DEA agent John Ingram, who participated in the search, testified at the suppression hearing that, prior to the search, a confidential informant had told him that Harris possessed several loaded firearms and that Harris might react irrationally to the execution of a search warrant. Ingram stated that he and other DEA Agents arrived at Harris' trailer at approximately 12:30 a.m. on April 19, 1985. No lights were on in the trailer, and Harris' pick-up truck was parked outside, leading the agents to believe that Harris was in the trailer. The agents knocked on the door at least twice, and getting no response, kicked down the door to gain entry. There was conflicting evidence as to the length of time between the first knock and the agents' entrance, with testimony varying from fifteen seconds to a minute and a half.

The district court, in a carefully reasoned ruling, concluded that the agents' information, reasonably relied on by them, that weapons were on the premises, their reasonable belief that Harris was inside the trailer and might respond irrationally to the search, and the lack of any response to their knocking all combined to make the wait between knocking and entering reasonable under the circumstances. This ruling computed with Jackson, supra, and was supported by sufficient evidence. United States v. Davis, 617 F.2d 677, 695 (D.C. Cir. 1979), cert. denied, 445 U.S. 967 (1980).

For these reasons, the judgment of the court below isAFFIRMED.