Opinion
Case No. 99-CR-400-ST.
June 7, 2000.
ORDER DENYING DEFENDANTS' MOTION FOR A MISTRIAL DUE TO A "FATAL VARIANCE" BETWEEN THE EVIDENCE PRESENTED AND THE ALLEGATIONS IN THE INDICTMENT
This matter came before the court on June 6, 2000, for hearing on Defendant's Motion for a Mistrial Due to a "Fatal Variance" Between the Evidence Presented and the Allegations in the Indictment.
Defendants move for a mistrial because they contend that government witness Merce Gutierrez' s testimony varied so far from the allegations in the Indictment that it constituted a "fatal variance"requiring a mistrial under the Fifth and Sixth Amendments. Defendants contend that Ms. Gutierrez' testimony varies significantly in time because she testified as to events in 1994 and 1995, while the Indictment alleges the conspiracy began on or about September 1996, and lasted until May 1999. Defendants also contend that Ms. Gutierrez' testimony was not alleged in the Indictment; they did not receive notice of allegations in her testimony; and, that her testimony varies significantly in location because she testified about the defendants' operation of a business in their home while the allegations in the Indictment are that defendants operated their incorporated business out of the business premises in furtherance of the charged scheme. Defendants contend they were so unfairly surprised at trial that defense counsel chose not to cross examine Ms. Gutierrez due to their resultant lack of preparation. They contend they were prejudiced because they had no opportunity to investigate the allegations regarding defendants' actions in 1994 and 1995, or the operation of a business in defendants' home prior to the opening of the offices of Caballero Tax and Immigration, Inc. and that they would not have used the theory of defense they presented at opening if they had notice of these allegations.
In addition, defendants contend they may he subject to Double Jeopardy because the jury might consider the allegations of their actions in 1994 and 1995, in determining their guilt or innocence, Because the jury could rely on such allegations when those allegations are not part of the Indictment, defendants contend they would not he protected from Double Jeopardy in the event that the government decides to later bring charges against them based upon such allegations.
In response, the government cites the proposition that a "variance between the date in the indictment and the proof is not fatal if the proof shows that the acts charged were committed on a date within the statute of limitations and prior to the return of the indictment," (Quoting U.S. v. Prescott, 33 F.3d 923-4 (8th Cir. 1994)) see also U.S. v. Summers, 137 F.3d 597, 601 (8th Cir. 1998). The government contends that the cases cited by defendants such as U.S. v. Ailsworth, 138 F.3d 843, 848 (10th Cir. 1998) and U.S. v. Stoner, 98 F.3d 527,533 (10th Cir. 1996), adhered to in part on rehearing, 139 F.3d 1343 (10th Cir. 1998), support its position rather than the position of the defendants. The government contends that Ms. Gutierrez' testimony was merely background evidence that showed how the same conspiracy developed in its initial stages. The government contends that it provided notice to defendants of the testimony because among the voluminous discovery it provided was a "302" form that stated Ms. Gutierrez met with the defendants in their home in 1995.
[I]n instances in which the indictment does contain allegations that the conduct constituting the conspiracy occurred within the statute of limitations period, we will apply the simple variance analysis adopted by several other circuits.Stoner, 98 F.3d at 533.
"A variance between the indictment and the proof is fatal only if it affected the substantial rights of the defendant." Ailsworth, 138 F.3d at 848; U.S. v. Adamo, 534 F.2d 31, 39 (10th Cir. 1976). Defendants have the burden of showing a fatal variance requiring a mistrial. U.S. v. Moore, 198 F.3d 793 (10th Cir. 1999).
Where a variance is such that the defendant could not have anticipated from the allegations in the indictment what the evidence would be at trial, the defendant's Sixth Amendment right to notice of the charges against him is violated. See U.S. v. Stoner, 98 U.S. 527, 536 (10th Cir, 1996). However, where the defendant was not misled by the variance, his right to adequate notice and substantial rights are not prejudiced.Moore, 198 F.3d at 796.
In this case, as in Adamo, supra, the substantial rights alleged to be affected are fair notice and avoidance of double jeopardy. 534 F.2d at 38.
In U.S. v. Morales, 113 F.3d 116,118 (8th Cir. 1997), a case supporting defendants' position, the court held that "in determining whether a variance exists, we consider the totality of the circumstances, including the nature of the activities, the location and time frame in which the activities were performed, and the participants involved."
A review of the challenged testimony reveals Ms. Gutierrez testified as follows: In the summer of 1994, she heard from her father that there was a process for obtaining legitimate immigration papers. She contacted Francisco Salazar about the process. Mr. Salazar said he worked for defendant Leonardo Caballero who provided forms to be filled out. She met with Mr. Salazar at her home in Dallas, Texas and spoke with Mr. Caballero over the phone during the meeting. In 1995, Ms. Gutierrez traveled to Miami, Florida, where Mr. Caballero picked her up at the airport, telling her that he was an immigration attorney. She went to the Caballero home where she met defendant Flor Caballero. Mrs. Caballero told Mrs. Gutierrez she was a legal assistant. Ms. Gutierrez saw the Caballeros's office in their home with "files and files," Mrs. Caballero taking pictures and people coming and going. In 1995, Ms. Gutierrez traveled back and forth from Texas to Miami three times to bring people (as many as 30 families each time) to talk with the Caballeros about their immigration papers and for her to give the Caballeros money she had collected from the people. At the direction of the defendants, the people she brought took medical tests in Miami. The people she brought were to meet with immigration authorities. However, when they got to Miami they found that their purported immigration appointments were held at the Caballeros' home office instead of at the Immigration office.
The court notes that events in the summer of 1994 may be outside the five year statute of limitations because the Indictment was filed on July 21, 1999. instead of at the Immigration office.
In Morales, supra, 113 F.3d at 118, the Eighth Circuit found a fatal variance where the Indictment alleged a single overall conspiracy yet the evidence showed two separate conspiracies separated by four months, took place in two wholly separate locations, and had but one common participant. Similarly, in this case the Indictment alleges a single overall conspiracy yet the evidence provided by Ms. Gutierrez showed a separate conspiracy separated by at least the year between Ms. Gutierrez' s activities in 1995 and the starting date of the conspiracy alleged in the Indictment. The separate conspiracy occurred at a location different from the conspiracy alleged in the Indictment, although the location is not nearly so different as the Chicago/St. Louis difference in the Morales case. Other than the defendants, this separate conspiracy involved different persons than are alleged to have participated in the conspiracy alleged in the Indictment. Although the government filed a second Superceding Indictment as late as the week before trial began, the allegations of actions in 1994 and 1995 were not included in the Indictment. The court finds that this evidence is a variance from the acts alleged in the Indictment and shows a separate conspiracy rather than merely background of the beginning of the charged single conspiracy. Defendants contend that such a variance requires a mistrial.
Jeopardy attaches when the original panel is seated and sworn. Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24 (1978). Once jeopardy attaches, prosecution of a defendant before a jury other than the original jury, excluding any contemporaneously empaneled and sworn alternates, is barred unless (1) there is a "manifest necessity" for a mistrial or (2) the defendant either requests or consents to a mistrial. United States v. Dinitz, 424 U.S. 600. 606-07, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976); United States v. Cameron, 953 F.2d 240, 243 (6th Cir. 1992).Watkins v. Kassulke, 90 F.3d 138, 141 (6th Cir, 1996).
Because the Federal Rules of Criminal Procedure offer little guidance on whenjudges should grant mistrial motions, the Tenth Circuit has focused on "whether . . . [the defendant's] right to a fair and impartial trial was impaired." US. v. Gabaldon, 91 F.3d 91 (10th Cir. 1996) (quoting United States v. Torres, 959 F.2d 858, 860 (10th Cir.)).
This trial is still in progress and the government has not finished its ease in chief. Under the circumstances, substantial prejudice to the rights of the defendants can be avoided by striking Ms. Gutierrez' testimony in its entirety. The court will instruct the jury that her testimony will be stricken and is not to be considered as evidence in this case. Accordingly, the court finds no necessity for declaring a mistrial. It is therefore
ORDERED that Defendant's Motion for a Mistrial Due to a "Fatal Variance" Between the Evidence Presented and the Allegations in the Indictment is DENIED. It is further
ORDERED that the testimony of Maria Gutierrez will be stricken.