Unpublished Disposition, 920 F.2d 937 (9th Cir. 1990)

MEMORANDUM^*

Appellant-defendant Martin Cervantes ("Cervantes") appeals his jury conviction for conspiracy to possess with intent to distribute approximately 25 kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a) (1) and 846. On appeal, Cervantes contends the trial court abused its discretion by denying his motion to sever his trial from that of codefendant Soloman Noel Mohamed ("Mohamed"). Further, Cervantes contends there was insufficient evidence to support the jury's guilty verdict. We affirm.

DISCUSSION

Cervantes argues codefendant Mohamed's defense was antagonistic and denied him a fair trial. We review the district court's denial of a motion to sever for abuse of discretion. United States v. Adler, 879 F.2d 491, 497 (9th Cir. 1988).

Generally, defendants jointly charged should be jointly tried. United States v. Polizzi, 801 F.2d 1543, 1553 (9th Cir. 1986). However, under Fed. R. Crim. P. 14, the district court may order severance when a defendant is significantly prejudiced by joint trial with his codefendants. United States v. Ramirez, 710 F.2d 535, 545 (9th Cir. 1983).

To justify severance on the ground of antagonistic defenses, Cervantes must show that the defenses are irreconcilable and mutually exclusive. United States v. Sherlock, 865 F.2d 1069, 1081 (9th Cir. 1989). Mere inconsistency in the testimony of the defendants is not enough. To justify severance, acceptance of one party's defense must preclude acceptance of the other party's defense. Ramirez, 710 F.2d at 546.

We find that the defenses were not antagonistic. The core of Cervantes' defense was that he had no involvement or knowledge of a drug transaction. The core of Mohamed's defense was that he was not involved in a drug conspiracy. We recognize the inconsistencies in the parties' testimony, but we conclude that the defenses were not antagonistic because the core of the defenses were not in such conflict that a jury, to believe the core of Cervantes' defense, must disbelieve the core of Mohamed's. Sherlock, 865 F.2d at 1081.

Further, the policy behind severance based on antagonistic defenses is to prevent a defendant from facing two prosecutors--the government and his codefendant. Id. at 1082. Review of the trial record does not indicate that Mohamed's counsel played the role of a second prosecutor. Mohamed's counsel did not make any incriminating statements regarding Cervantes. He did not mention Cervantes in his opening statement, he did not present witnesses incriminating Cervantes, nor did he cross-examine Cervantes. In two Fifth Circuit cases finding compelling prejudice based on antagonistic defenses, both courts found that the 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). This case does not present that type of situation.

We find that, viewing the evidence in the light most favorable to the Government, the elements of the offense were established beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). We may consider all evidence presented because Cervantes introduced evidence. See McGautha v. California, 402 U.S. 183, 215 (1971), vacated on other grounds, 408 U.S. 941-42 (1972); United States v. Lopez, 625 F.2d 889, 897 (9th Cir. 1980); 2 Wright, Federal Practice and Procedure: Criminal 2d Sec. 463 (1982). However, there was sufficient evidence presented in the Government's case-in-chief to uphold the verdict. The evidence of surveillance activities by codefendant Langarica with a radio tuned to the same station as the radio Cervantes had in his car and attempted to conceal is strong. Opening the suitcase with the money in it in the presence of Cervantes also supported the verdict. Combining this evidence with the testimony of Mohamed provides ample evidence to support the verdict.

AFFIRMED.