United States v. Luna

          REPORT AND RECOMMENDATION

          Honorable Jacqueline M, Rateau, United States Magistrate Judge

         This 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.^[1]

         I. The Indictment

         The 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.

         II. Discussion

         Luna 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.

         Joinder 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).

         There 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).

         A 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).

         The 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.

         According 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 moving.

         With 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.

         Regarding 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.

         And, as 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 ...