Opinion
CR-19-02942-TUC-JGZ (LAB)
06-15-2021
United States of America, Plaintiff, v. Jose Adan Olivas, Defendant.
REPORT AND RECOMMENDATION
HONORABLE LESLIE A. BOWMAN UNITED STATES MAGISTRATE JUDGE
The District Court referred this case to the Magistrate Judge for a hearing on a motion to sever defendants brought by the defendant Jose Olivas. (Doc.170)
Olivas and his co-defendant Jose Padilla were arrested in a truck found to be transporting 32 undocumented aliens. Padilla's counsel has indicated that he intends to mount a defense based on no knowledge. He will imply that Olivas, the owner of the truck, is the person who arranged to transport the undocumented aliens, while Padilla was merely a passenger. In the pending motion, Olivas claims that he is entitled to severance due to the co-defendants' completely irreconcilable and antagonistic defenses, which would result in a prejudicial trial, where the defendant's Sixth Amendment rights would be violated and the co-defendant's attorney would become a second prosecutor.
A hearing was held on 6/11/21. Exhibit A, as attached to document 177, was referenced. No. other exhibits were presented. No. witnesses testified.
Counsel for Padilla did not file a joinder in the motion to sever. During the hearing, he orally moved to join. Upon further inquiry, Padilla did not argue that he wanted a severance or that he would be substantially prejudiced, only that it seemed like the fair thing to do for Olivas.
Charge :
The defendants are charged in a nine-count indictment with conspiracy to transport illegal aliens for profit, 8 counts of transportation of illegal aliens for profit and a forfeiture allegation, in violation of 8 U.S.C. §§ 1324(a)(1)(A)(v)(I), (A)(ii) and (B)(i), 18 U.S.C. §§ 2, 982(a)(6) and (b)(1), and 21 U.S.C. §§ 853 and 2461(c).
Motion to Sever :
Defendant Olivas argues that his Sixth Amendment right to confrontation of witnesses will be violated if he is tried with Co-Defendant Padilla. He also claims that the defendants' respective defenses are so completely irreconcilable and antagonistic that the co-defendant's attorney will become a “second prosecutor” at trial. Olivas maintains that the defenses are irreconcilable based on one of Padilla's four potential defenses and because Padilla may elect to testify, claim no knowledge, and blame Olivas.
The Court concludes that no specific prejudice has been articulated. The potential defenses are not mutually exclusive nor mutually antagonistic. And if those issues arise during trial, limiting instructions to the jury can be tailored to minimise potential prejudice. Rule 14(a), F.R.Crim.Pro., does not support severance under the facts of this case. The motion should be DENIED.
DISCUSSION :
Olivas's motion to sever arises from his assertion that his co-defendant Padilla will use an antagonistic and mutually irreconcilable defense, which will prejudice him at trial. He relies on Document 177-1, an email from Padilla's counsel to Olivas's counsel, dated 4/15/21. In the email, Padilla's counsel states that it is possible that the aliens got in the wrong truck, but it seems more likely that one of the defendants knew that undocumented people were being transported in the truck. Counsel explains that he has spoken with his client and that he intends “to suggest [to] the jury that Padilla had no knowledge and therefore Olivas knew and set it up, someone from the produce company knew [or] the roommate in Mexico set it up.” Counsel explains that he will make all four arguments at trial and suggests that Olivas's counsel file a motion to sever, although Padilla's counsel would prefer to try the cases together.
During the hearing, Padilla's counsel explained that he has not questioned his client specifically about why he thinks Olivas knew there were aliens in the truck. He has not definitively determined whether his client will testify at trial, but he likely will. He has not prepared his client to testify, and so cannot advise the court whether his client will implicate Olivas. He reiterated that his client will claim no knowledge and the defense will be that the aliens got in the wrong truck, Olivas planned the crime without Padilla's knowledge, the produce company set up the smuggling venture, or a roommate in Mexico was responsible.
The government explains that this case involves a nine-count indictment. Trial is estimated to last eight days. The evidence will include playing eight material witness video depositions, testimony from multiple federal agents/employees including an alien smuggling and trucking expert, and testimony from five civilian witnesses some of whom may travel from out-of-state. The government asserts that Olivas fails to explain how the defenses are mutually antagonistic or manifestly prejudicial.
To obtain severance, a defendant must satisfy the “heavy burden” of showing that prejudice would result from joinder. United States v. Sitton, 968 F.2d 947, 961 (9th Cir. 1992). In evaluating a severance motion, a trial court balances any possible prejudice to the defendant against the interest of efficiency. There is a strong preference for joint trials because separate trials would “impair both the efficiency and the fairness of the criminal justice system” by requiring the United States to “bring separate proceedings, presenting the same evidence again and again[.]” Richardson v. Marsh, 481 U.S. 200, 210 (1987).
The Supreme Court has cautioned that when joinder is proper, “a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would...prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 539 (1993). In determining whether severance is required, the Ninth Circuit has developed a four-part test. U.S. v. Hernandez-Orellana, 539 F.3d 994, 1001 (9th Cir. 2008). The court must determine, (1) whether it is reasonable to expect the jury to appraise the specific evidence against each defendant, (2) whether the judge was diligent in instructing the jury regarding the limited purpose that certain evidence could be used for, (3) whether an ordinary juror is competent to grasp the nature of the evidence and the legal concepts involved, and (4) whether one of the defendants could specifically show that a joint trial would compromise a particular trial right or interfere with the jury's ability to make a reliable judgment about guilt or innocence. “The most important factors are whether the jury can compartmentalize the evidence against each defendant and the judge's diligence in providing evidentiary instructions to the jury.” U.S. v. Sullivan, 522 F.3d 967, 981-82.
In the present case, Defendant Olivas argues that he is entitled to severance based on the fourth factor, because one of his “specific trial right[s]” will be compromised by a joint trial. He argues that the co-defendant's defense is completely irreconcilable with Olivas's core defense and that the acceptance of Padilla's theory by the jury precludes Olivas' acquittal.” (Mtn. at 3, lns. 2-4 and lns. 7-10.) Olivas claims this irreconcilable defense would result in substantial prejudice to his right to a fair trial and affect his Sixth Amendment Right to confront and cross-examine witnesses. Olivas, however, has not proffered what his defense will be, making it difficult to determine if the defenses are irreconcilable.
It is unclear how Olivas would be denied his Sixth Amendment right. If Padilla testifies, he is subject to cross-examination from Olivas's counsel. If he does not testify there will be no evidence from Padilla that Olivas set up the smuggling conspiracy. Olivas also claims that he would be substantially prejudiced by having the government and co-counsel as prosecutors, citing the Court to U.S. v. Mayfield, 189 F.3d 895 (9th Cir. 1999). The facts in Mayfield, however, are distinguishable from the facts in the present case. In Mayfield, the co-defendant, Gilbert, implicated Mayfield in a post-arrest confession. The confession was admitted into evidence at trial, with Mayfield's name redacted. Gilbert's counsel “used every opportunity to introduce impermissible evidence against Mayfield.” Id. at 900. She used her closing argument to convince the jury of Mayfield's guilt, rather than address the government's evidence against Gilbert. Gilbert did not testify. He was not subject to cross-examination.
The Mayfield Court discussed the remedy of using limiting jury instructions, acknowledging that even where the risk of prejudice seems high, such risk can often be cured by the use of limiting jury instructions. Zafiro, 506 U.S. at 539. It made clear that, “The judge must actively supervise the trial and, if necessary, reiterate instructions in the wake of prejudicial events.” Mayfield, supra at 905, citing Tootick, 952 F.2d at 1085. In Mayfield, the Court found that the trial court abused its discretion either by failing to sever or to provide “more rigorous and timely jury instructions to mitigate the prejudice” that was caused by co-counsel's misbehavior during trial. Id. at 906. There is no indication that Padilla's counsel would behave thusly.
Based on what is known about the co-defendants' respective theories of the case, the court concludes that their defenses are not mutually antagonistic nor mutually exclusive. Even if the jury believes that Padilla had no knowledge of the alien smuggling, there is no information that Padilla will testify to facts that would necessarily implicate Olivas. He will testify, or merely argue, that he had no knowledge, so either Olivas made the arrangements, or the aliens got into the wrong truck, or the produce company is the smuggler, or a roommate in Mexico committed the offense. If Padilla is acquitted, it does not necessarily mean that Olivas will be convicted. Olivas has the right to remain silent, but he could testify or simply argue through counsel that he also had no knowledge. The defenses are not mutually exclusive. Collins v. Runnels, 603 F.3d 1127, 1131 (9th Cir. 2010) As the defendant concedes in his motion, “Inconsistency of defenses may not be sufficient to warrant severance.” U.S. v. Tootick, 952 F.2d 1078 (9th Cir. 1991)
Should co-counsel become a “second prosecutor” during trial, due to the competing defenses, the Court can mitigate the effects by properly directing counsel and adequately instructing the jury that counsel's arguments are not evidence, and rigorously and frequently giving the jury limiting instructions. See Zafiro, 506 U.S. at 541.
In weighing the competing interests in this case, the Court concludes that severance is not appropriate because separate trials would impair the efficiency and fairness of the criminal justice system outweighing the claims of potential prejudice.
RECOMMENDATION :
In view of the foregoing, it is recommended that, after its independent review of the record, the District Court DENY the motion to sever. (Doc. 170)
Defense counsel may serve and file written objections within 14 days. If objections are not timely filed, the party's right to de novo review may be waived. No. reply to objections shall be filed unless leave is granted from the District Court.
The Clerk of the Court is directed to send a copy of this Report and Recommendation to all parties.