United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable Jacqueline M, Rateau, United States Magistrate
matter was referred to Magistrate Judge Rateau for pretrial
matters. On August 1, 2019, Defendant Raymond Luna
(“Luna”) filed a Motion for Severance. (Doc. 62).
The government filed a Response on August 20, 2019. (Doc.
70). A reply was not filed. Argument on this motion was heard
on September 24, 2019. Luna was present and represented by
counsel. Having considered the matter, the Magistrate Judge
recommends that Luna's motion be DENIED.
Indictment in this case charges two defendants and four
counts. (Doc. 45) Count One charges both Luna and Defendant
Michael Beltran (“Beltran” or
“Defendants” when referred to collectively) with
a conspiracy dating from a time unknown to on or about March
11, 2019. It alleges that Luna and Beltran conspired to
transport three undocumented persons for the purpose of
commercial advantage or private financial gain. Counts two,
three, and four charge both Defendants with the substantive
offense of transportation of illegal aliens for profit. Each
count names one of the undocumented persons.
requests that his trial be severed from Beltran's trial.
He alleges that on March 11, 2019, Luna was driving a car and
Beltran was a passenger in the car. Defendants picked up
undocumented people in broad daylight in Douglas, Arizona.
None had backpacks or water jugs. Both Defendants assert that
they did not know that their passengers were in the country
illegally. At trial, Luna, and presumably Beltran, will
assert that the undocumented people were picked up at the
request of their co-defendant. Additionally, Luna has a prior
felony conviction and Beltran may wish to bring that up when
pointing the finger at Luna. Luna asserts that he has a right
to keep his prior conviction away from the jury unless he
chooses to testify and the court decides that the probative
value of the prior outweighs its prejudicial effect.
of defendants for trial is proper if they are alleged to have
participated in the same act or transaction, or in the same
series of acts or transactions, constituting an offense or
offenses. Fed.R.Crim.P. 8(b). If joinder of defendants
appears to prejudice the defendant or the government, the
court may order separate trials of counts, sever the
defendants' trials or provide any other relief that
justice requires. Fed.R.Crim.P. 14(a).
is a preference in the federal system for joint trials of
defendants that are indicted together. Zafiro v. United
States, 506 U.S. 534, 537 (1993). A joint trial is
particularly appropriate where the co-defendants are charged
with conspiracy, because the concern for judicial efficiency
is less likely to be outweighed by possible prejudice to the
defendants when much of the same evidence would be admissible
against each of them in separate trials. United States v.
Fernandez, 388 F.3d 1199, 1242 (9th Cir. 2004),
modified, 435 F.3d 1248 (9th Cir. 2005).
defendant carries the heavy burden of making a strong showing
of factually specific and compelling prejudice resulting from
a joint trial. United States v. Kenny, 645 F.2d
1323, 1345 (9th Cir. 1981). To meet his burden, “the
defendant [must] show ‘clear,'
‘manifest,' or ‘undue' prejudice from a
joint trial, ” United States v. Polizzi, 801
F.2d 1543, 1553-54 (9th Cir. 1986), and must demonstrate the
jury's inability to distinguish the evidence relevant to
each defendant and even if a defendant is able to show some
potential jury confusion, such confusion must be balanced
against society's interest in speedy and efficient
trials, United States v. Benton, 852 F.2d 1456, 1469
(6th Cir. 1988).
Ninth Circuit has held that severance of a joint trial may be
necessary where the codefendants present mutually
antagonistic theories of defense. United States v.
Tootick, 952 F.2d 1078, 1081 (9th Cir. 1991). Mutually
antagonistic defenses are typically defined as theories of
defense that logically require the acquittal of one
defendant, if the other defendant is convicted. Id.
Defendants are not entitled to severance merely because they
may have a better chance of acquittal in separate trials.
Zafiro, 506 U.S. at 540. To demonstrate that
competing defenses amount to manifest prejudice in a joint
trial, a defendant must show that the core of his
co-defendant's defense is so irreconcilable with the core
of his own defense that the acceptance of the
co-defendant's theory by the jury precludes acquittal of
the defendant. United States v. Johnson, 297 F.3d
845, 858 (9th Cir. 2002). The Court finds that Luna has not
met this burden.
to the Government, a Douglas Police Officer observed three
people get into the car driven by Luna. The officer began to
follow Luna and when Luna noticed the officer behind him, he
made a U-turn and the three individuals jumped out of the car
while it was still in motion. The officer stopped Luna while
other officers detained the individuals who jumped. The
individuals who jumped were determined to be in the country
illegally and were held as material witnesses. Neither Luna
or Beltran made post-arrest statements. At a later hearing,
the undocumented individuals implicated both defendants. One
witness said that the driver (Luna) yelled at him in English
and the passenger (Beltran) yelled “jump.” The
second witness testified that the passenger (Beltran) was the
“helper' who told him to jump out of the car. The
third witness testified that both the driver (Luna) and the
passenger (Beltran) told him to get out of the car and the
passenger (Beltran) pushed him out of the car while it was
respect to the substantive charges of transporting aliens for
profit, both Defendants can testify at trial that they did
not know their passengers were undocumented. The jury can
believe and acquit both or disbelieve and convict both. The
defenses are not mutually antagonistic. If only one defendant
testifies and the other does not, the jury can still convict
both Defendants based on the testimony of the three material
witnesses. Luna may choose not to testify because he fears
his prior felony conviction could be used to impeach his
credibility. But that possibility exists whether Luna and
Beltran are tried together or separately.
the charge of conspiracy to transport illegal aliens for
profit, both Defendants can testify at trial that the
undocumented people were picked up at the request of their
co-defendant. The jury can accept or reject both defenses and
still find both either not guilty or guilty since the charged
conspiracy includes conspiring together “and with
various other persons known and unknown to the grand jury. .
..” While the defenses are inconsistent, they are not
so irreconcilable that the acceptance of one defense
precludes an acquittal of the other.
argued by the Government, if Luna claims that Beltran told
him to pick up the aliens without telling him they were in
the country illegally, Beltran would still be free to claim
that he was also deceived by a third party regarding the
passengers' status. In that event, both ...