Throckmorton contends the district court abused its discretion by denying his motion to sever his trial from Calicchio's. Both defendants contend the district court erred by responding, outside of their presence, to a note from the jury.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm all convictions as to both defendants.
* Throckmorton and Calicchio were apprehended off-loading more than 1000 kilograms of marijuana from a sailboat. Prior to their joint trial, Throckmorton moved to sever his trial from Calicchio's on the ground their defenses were antagonistic. Throckmorton argued that he would be prejudiced by Calicchio's defense, in which Calicchio intended to implicate Throckmorton, admit that the drug transaction occurred, but contend he was involved solely as a DEA informant. The district court denied the motion to sever.
At trial, Calicchio testified that he and Throckmorton had engaged in the charged smuggling activity, but that Calicchio did so while acting as a DEA informant. Calicchio's testimony included detailed information regarding Throckmorton's involvement as the leader of the smuggling operation.
The prosecution played for the jury a videotape of a meeting between Throckmorton, Robert F. Brewer (a DEA informant), and Ronald V. Solokian (a codefendant). After the jury had retired to deliberate, they sent a note to the trial judge requesting a second viewing of the videotape. At the end of the day, the trial judge informed the parties that he had "received a few notes which [he] responded to." The defendants were shown the notes, did not inquire as to how the court responded, and raised no objection. The record does not reveal what the district court said to the jury.
The jury convicted both defendants on all counts and these appeals followed.
We review for abuse of discretion a district court's decision denying a motion to sever trials. United States v. Baker, 10 F.3d 1374, 1386 (9th Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct. 330, 130 L.Ed.2d 289 (1994). A defendant seeking a reversal by reason of a district court's denial of a motion to sever must establish that the prejudice he suffered from the joint trial was so "clear, manifest or undue" that he was denied a fair trial. United States v. Vasquez-Velasco, 15 F.3d 833, 846 (9th Cir.1994).
It is clear Calicchio's defense was antagonistic to Throckmorton's. Antagonism between defenses or the desire of one defendant to exculpate himself by inculpating a codefendant, however, is insufficient to require severance. United States v. Sherlock, 962 F.2d 1349, 1363 (9th Cir.1989), cert. denied sub nom. Charley v. United States, 506 U.S. 958, 113 S.Ct. 419, 121 L.Ed.2d 342 (1992). To be entitled to severance on the basis of mutually antagonistic defenses, a defendant must show that the core of the codefendant's defense is so irreconcilable with the core of his own defense that the acceptance of the codefendant's theory by the jury precludes acquittal of the defendant. Id.
Throckmorton defended on a theory of insufficiency of the evidence. He argued the prosecution did not prove its case. Calicchio defended on the theory that he was acting as a DEA informant. These defenses are not, at their core, irreconcilable. If the jury found that Calicchio was working for the DEA, it still could have acquitted Throckmorton for lack of evidence. Acceptance of Calicchio's defense would not have precluded Throckmorton's acquittal.
Judge(s): David R. Thompson
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
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