Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 04-cr-00403-LTB UNITED STATES OF AMERICA, Plaintiff, v. 1. 5. 6. 10. 11. 12. CARLOS ZAPATA-HERNANDEZ, JOSE ALFREDO ZAPATA, a/k/a "Alfredo," JAIME ARMENDARIZ, ALBERTO CABRAL, a/k/a "Beto," and a/k/a "Tio Beto," ARTEMISA ZAPATA-MONTOYA, HUMBERTO GALVAN, a/k/a "Beto," Defendants. GOVERNMENT'S CONSOLIDATED RESPONSE TO DEFENDANTS' MOTIONS TO SEVER (Filed At Docket Numbers 659, 667, 682, 683 and 685) AND NOW COMES THE UNITED STATES OF AMERICA, WILLIAM J. LEONE, ACTING UNITED STATES ATTORNEY, by Stephanie Podolak, Assistant U.S. Attorney, and files this consolidated response to the following motions: (1) Motion To Severe, filed by defendant JAIME AMRENDARIZ at Docket Number 659; (2) Motion To Sever, filed by defendant ALBERTO CABRAL at Docket Number 685; (3) Motion To Sever and Declaration Of Marital Privilege, filed by defendant HUMBERTO GALVAN at Docket Number 683; (4) Motion For Relief From Prejudicial Joinder filed by defendant ARTEMISEA ZAPATA-MONYOYA

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at Docket Number 682; (5) Motion To Sever Defendant Carlos Zapata-Hernandez, filed at Docket Number 684; and (6) Motion to Sever, filed by defendant JOSE ALFREDO ZAPATA, at Docket Number 667. 1. Alleged Grounds For Severance Argued By Defendants The defendant's make the following arguments in support of their motions for severance. The defendant JAIME ARMENDARIZ

alleges that there is prejudicial joinder because there is no evidence that he traveled to Colorado during the course of the conspiracy and because he is connected to the conspiracy only by co-conspirator statements. The defendant ALBERTO CABRAL alleges

that severance is warranted because, in the absence of separate trials, he will be denied access to exculpatory evidence provided by co-defendants who would invoke their 5th Amendment rights at trial. In addition, CABRAL claims that the jury will find him

guilty simply by virtue of his association with the codefendants. Defendant HUMBERTO GALVAN argues for severance on

the grounds of spill-over prejudice and the invocation of the marital privilege. Defendant ARTEMISA ZAPATA-MONTOYA argues for

severance on grounds of spill-over prejudice and the inability to obtain testimony from co-defendants. Defendant CARLOS ZAPATA-

HERNANDEZ argues for severance on the grounds of mutually antagonistic defenses and spill-over prejudice. Lastly, JOSE

ALFREDO ZAPATA also agrues for severance on the grounds of spillover prejudice. 2

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2.

Factual Argument The defendants have all been named in Count One of the

Indictment which charges a long-term conspiracy to possess and distribute cocaine. The government requests that the Court take

judicial notice of the government's James proffer and the Court's findings on the existence of the conspiracy. In the proffer, the

government showed how each of the named defendants played an integral role in the conspiracy and committed overt acts in furtherance of the drug enterprise. For example, defendants ALBERTO CABRAL, HUMBERT GALVAN and ARTEMISA ZAPATA-MONTOYA were transporters for the CARLOS ZAPATA-HERNANDEZ TARGET ORGANIZATION and, as such, drove vehicles containing cocaine from El Paso, Texas, to Denver, Colorado. Indeed, HUMBERTO GALVAN was caught with approximately seven kilograms of cocaine in his vehicle. Surveillance also observed

ALBERTO CABRAL off-loading a tire containing cocaine and delivering that cocaine to CARLOS ZAPATA-HERNANDEZ. The evidence

will also show that JOSE ALFREDO ZAPATA and JAIME AMRENDARIZ, both of whom resided in El Paso, Texas, assisted in obtaining loads of cocaine that had been sent from Mexico and provided the cocaine to transporters of the ZAPATA-HERNANDEZ TARGET ORGANIZATION including ARTEMISA ZAPATA-MONTOYA an HUMBERTO GALVAN. The evidence will also show that CARLOS ZAPATA-HERNANDEZ

was in the center of and the leader of the drug distribution

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organization.

Therefore, the evidence supports joinder of the

defendants in the same conspiracy. 3. Legal Argument Under Rule 8(a) of the Federal Rules of Criminal Procedure, offenses are properly joined if "the offenses charged . . . are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Rule 8(b) provides that "[t]wo or more defendants may be

charged in the same indictment . . . if they are alleged to have participated in the . . . same series of acts or transactions" constituting one or more offenses. Rule 8(b) permits joinder of

crimes arising out of a common scheme or plan and applies to substantive offenses as well as conspiracies. Mione, 1987 WL 7729 (S.D.N.Y. 1987). "There is a preference in the federal system for joint trials of defendants who are indicted together." United States, 506 U.S. 534, 537 (1993). vital role in the criminal justice system. Zafiro v. United States v.

Such trials play a Id. Pursuant to

8(b), joinder of multiple defendants is proper whenever there is a common thread between the actions charged against them. United

States v. Saget, 991 F.2d 702, 707 (11th Cir.) cert. denied, 510 U.S. 950 (1993). Rule 8(b) does not require each defendant to

have participated in all of the counts, but it does require each defendant to have participated in the same series of acts or 4

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transactions. Cir. 1988).

United States v. Grey Bear, 863 F.2d 572, 575 (8th Clearly, this means there must be some common

conspiracy or scheme connecting all acts of the series to provide proper joinder. Id.

The fact that an indictment does not charge each defendant with active participation in each phase of the conspiracy does not constitute misjoinder. United States v.

Lindell, 881 F.2d 1313, 1318 (5th Cir. 1989), cert. denied, 493 U.S. 1087 (1990). "The conduct of the alleged coconspirators may

be diverse and far-ranging, but it must be interdependent in some way. Interdependence may be found if a defendant's actions

facilitated the endeavors of other coconspirators or facilitated the venture as a whole. A defendant's connection to a conspiracy

may be slight, as long as the government proves a defendant's knowing participation." United States v. Powell, 982 F.2d 1422,

1429 (10th Cir. 1992), cert. denied, 507 U.S. 946 (1993)(citations omitted). A coconspirator need not know of the existence or identity of the other members of the conspiracy or the full extent of the conspiracy. United States v. Evans, 970 F.2d 663, 507 U.S. 922 (1993). A

669 (10th Cir. 1992), cert. denied,

turnover in personnel does not terminate a conspiracy, as long as some interdependence continued. Powell, at 1431. Several

persons may be parties to a single conspiracy even if they have never directly communicated with one another. 5 United States v.

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Rangel-Arreola, 991 F.2d 1519, 1522 (10th Cir. 1993).

The

question is whether they are aware of each other's participation in a general way and have a community of interest. Id.

Of principal concern in determining the existence of a single conspiracy is whether the conduct of the alleged coconspirators, however diverse and far-ranging, exhibits an interdependence. Powell, 982 F.2d at 1431. Most narcotics

networks involve loosely knit, vertically integrated combinations and separate transactions are not separate conspiracies as long as the activities were aimed at a common illicit goal. Id.

"Where the evidence overlaps, the offenses are similar and the operable events occurred within a relatively short span of time, joinder of defendants and offenses is proper." United States v.

Esch, 832 F.2d 531 (10th Cir. 1987), cert. denied, 485 U.S. 991 (1988). Questions of misjoinder under Rule 8(b) are questions of law, United States v. Williams, 809 F.2d 1072, 1085-86 (5th Cir. 1987), and in this circuit, defendants charged jointly under Rule 8 "are not entitled to separate trials as a matter of right." Baily v. United States, 410 F.2d 1209, 1213 (10th Cir.), cert. denied, 396 U.S. 933 (1969). Here, the counts in the indictment as well as the defendants are properly joined. Rule 14 of the Federal Rules of

Criminal Procedure confers discretion on the trial court to grant a severance. When defendants are properly joined under Rule

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8(b), a severance under Rule 14 should only be granted if there is a serious risk that being tried jointly will compromise a specific right of one of the defendants or prevent the jury from making a reliable judgment about guilt or innocence. U.S. at 539. The decision whether to grant or deny severance is within the sound discretion of the trial court and will not be disturbed on appeal unless there is a "strong showing of prejudice." United States v. Evans, 970 F.2d 663, 675 (10th Cir. Zafiro, 506

1992), cert. denied, 507 U.S. 922 (1993). [In] deciding on a motion for severance, the district court has a duty to weigh the prejudice resulting from a joint trial of codefendants against the expense and inconvenience of separate trials . . . Neither a mere allegation that defendant would have a better chance of acquittal in a separate trial, nor a complaint of the "spill-over effect" from the evidence that was overwhelming or more damaging against the co-defendant than that against the moving party is sufficient to warrant severance. United States v. Hack, 782 F.2d 862, 870 (10th Cir.), cert. denied, 476 U.S. 1184 (1976). The defendants claims of spill-over prejudice are insufficient as a matter of law. "The mere fact that one co-

defendant is less culpable than the remaining co-defendants is not alone sufficient grounds to establish a trial court abused its discretion in denying a severance." United States v. The Supreme Court

Youngpeter, 986 F.2d 349, 353 (10th Cir. 1993) 7

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has also indicated that "defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials." Zafiro v. United States, 506 U.S. at 540. Any

risk of prejudice may be cured with limiting instructions to the jury. 1994). Id.; United States v. Emmons, 24 F.3d 1210 (10th Cir. And, juries are presumed to follow their instructions.

Zafiro at 540 citing Richardson v. Marsh, 481 U.S. 200, 211 (1987). Any alleged "spill-over" effect or prejudice as a result

of a joint trial in this case would not be so great that it could not be cured by instructions to the jury. The defendants have also claimed that in a joint trial they will be denied access to co-defendant exculpatory testimony. However, no defendant has attached an affidavit from any of the co-defendants to show that any would indeed testify. When a defendant requests a severance claiming he needs a co-defendant's testimony, the following seven factors are relevant: (1) the likelihood that the co-defendant would in fact

waive his Fifth Amendment privilege and testify at the severed trial; (2) the significance of this testimony to the defendant's defense theory; (3) the exculpatory nature and effect of such testimony; (4) the likelihood that the testimony would have been impeached; (5) the amount of prejudice caused by the absence of such testimony; (6) the effect of the severance on judicial economy; and (7) the timeliness of the motion. Martinez, 76 F.3d 1145, 1152 (10th Cir. 1996). 8 United States v.

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The defendants have provided nothing which indicates the likelihood of other co-defendants testifying on their behalf. The defendants have not detailed factually the significance, exculpatory nature or impeachability of such testimony, nor the prejudice caused by the lack of such possible testimony. More

than a bald assertion that a co-defendant will testify at a separate trial is required; the unsupported possibility that such testimony might be forthcoming is considered insufficient to show prejudice. United States v. Espinosa, 771 F.2d 1382, 1408 (10th

Cir.), cert. denied, 474 U.S. 1023 (1985). With regard to defendant CARLOS ZAPATA-HERNANDEZ's motion to sever on grounds of antagonistic defenses, the defendant is correct that severance may be necessary if codefendants' defenses are so antagonistic that they are mutually exclusive. Cir. 1994). United States v. Dirden, 38 F.3d, 1131, 1141 (10th However, the fact that defense theories conflict or

because one defendant is attempting to cast blame on another, does not warrant severance. are not prejudicial per se." 534 (1993). Id. "Mutually antagonistic defenses

Zafiro v. United States, 506 U.S.

Here, CARLOS ZAPATA-HERNANDEZ does not indicate what

his defenses are, how they are antagonistic to the co-defendants or why the defenses are mutually exclusive. This does not

establish prejudice and a severance is not warranted.

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Finally, with respect to defendant GALVAN's claim of marital privilege, the defendant has not indicated how the privilege would impact the need for a severance. While it is

true that HUMBERTO GALVAN and LILIAN GALVAN are married and martial privilege may exists, that raises a question of admissibility of evidence which would be present in a severed trial as well a joint trial. Moreover, GALVAN has not explained

what testimony would be given that would invoke the privilege or implicate the spouse. Absent some specific showing of prejudice,

the motion to sever should be denied. For all the foregoing reasons, the government respectfully requests that the defendants' motions to sever be denied.

RESPECTFULLY SUBMITTED: WILLIAM J. LEONE UNITED STATES ATTORNEY DISTRICT OF COLORADO By: s/Stephanie Podolak Stephanie Podolak Assistant United States Attorney U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO. 80202 Telephone (303) 454-0309 Fax (303) 454-0401 [email protected] Attorney For Government

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CERTIFICATE OF SERVICE I hereby certify that on this 27th day of April, 2006, I electronically filed the foregoing GOVERNMENT'S CONSOLIDATED RESPONSE TO DEFENDANTS' MOTIONS TO SEVER (Filed At Docket Numbers 659, 667, 682, 683 and 685) with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Richard Tegtmeier [email protected] Jeff Pagliuca [email protected] Mark Johnson [email protected] E. Richard Toray and Daniel Gerash [email protected] Richard Banta [email protected] Lisabeth Castle [email protected] Angelica B. Carreon [email protected] Jennifer Gedde [email protected] Harvey Steinberg and Christopher Leach [email protected] Martha Eskesen [email protected] Scott Poland [email protected] Don Lozow [email protected] Mike Root [email protected] 11

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James Scherer and Earl Sherwood Wylder [email protected] Chuck Elliot [email protected] Mitch Baker [email protected] Robert Driscoll [email protected] John Sullivan [email protected]

s/Joyce Hegge JOYCE HEGGE Legal Assistant to Stephanie Podolak U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone: (303) 454-0106 Fax: (303) 454-0401 E-mail: [email protected]

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