United States v. Juan Bravo-Fernandez [1]

249 F.Supp.3d 598

UNITED STATES of America, Plaintiff,

v.Juan BRAVO–FERNANDEZ [1], Hector Martinez–Maldonado [2], Defendants.

Criminal No. 10-232 (FAB).

United States District Court, D. Puerto Rico.

Signed April 10, 2017

Daniel A. Petalas, Peter M. Koski, United States Department of Justice Public Integrity Section, Washington, DC, for Plaintiff.

OPINION AND ORDER

FRANCISCO A. BESOSA, UNITED STATES DISTRICT JUDGE

Before the Court is defendant Juan Bravo–Fernandez's ("Bravo")'s motion for severance, Docket No. 729, and defendant Hector Martinez–Maldonado's ("Martinez")'s motion for severance, Docket No. 731. For the reasons set forth below, the Court DENIES without prejudice both motions for severance. Moreover, the Court ORDERS the government to disclose any statements made by defendants that the government intends to introduce into evidence at trial.

I. BACKGROUND

On June 22, 2010, a federal grand jury returned an indictment charging defendant Bravo and defendant Martinez with, among other criminal offenses, federal program bribery in violation of 18 U.S.C. § 666(a)(2) and 18 U.S.C. § 666(a)(1)(B) (" section 666").¹ (Docket No. 1 at ¶¶ 81, 85.) Following a trial that lasted approximately two weeks, the jury convicted defendant Bravo of violating 18 U.S.C. § 666(a)(2) as charged in count four of the indictment, and convicted defendant Martinez of violating 18 U.S.C. § 666(a)(1)(B) as charged in count five of the indictment.² See Docket No. 438.

The First Circuit Court of Appeals ultimately vacated the convictions of both defendants for violating section 666, and remanded the case for further proceedings. United States v. Fernandez, 722 F.3d 1, 39 (1st Cir. 2013). The court of appeals held that the Court's jury instructions were erroneous because they permitted the jury to convict pursuant to a gratuity theory, stating that "[t]he government may not pursue a conviction on that ground [i.e., a gratuity theory] if Defendants are retried." Id. at p. 28. In sum, defendants cannot be convicted of federal program bribery pursuant to a gratuity theory because "the true target of § 666 are bribes, not gratuities." Id. at 26.

The government now intends to retry defendants on the standalone section 666 federal program bribery allegations set forth in counts four and five.³ Defendants make overlapping arguments in support of their respective motions for severance. Defendant Bravo contends that severance is warranted because: (1) former senator Jorge De Castro–Font's anticipated testimony concerning defendant Martinez's statements inculpating defendant Bravo would violate defendant Bravo's Sixth Amendment right to confrontation, and (2) the government's introduction into evidence of defendant Martinez's 1999 grand jury testimony relating to the criminal investigation of Senator Freddie Valentin would be unfairly prejudicial. Defendant Martinez, for his part, argues that severance is warranted because: (1) evidence of defendant Bravo's payments to De Castro–Font in exchange for the latter's support for certain legislation would cause spillover prejudice to defendant Martinez, and (2) De Castro–Font's anticipated testimony concerning the statements of defendant Bravo that incriminate defendant Martinez would violate defendant Martinez's Sixth Amendment right to confrontation. For the reasons explained below, the Court denies defendants' motions for severance without prejudice.

II. Severance Standard

"As a rule, persons who are indicted together should be tried together."

United States v. O'Bryant, 998 F.2d 21, 25 (1st Cir. 1993).⁴ Joint trials prevent inconsistent verdicts and conserve judicial resources. Id. Rule 14 of the Federal Rules of Criminal Procedure, however, provides that the Court may sever trials "[i]f the joinder of offenses or defendants in an indictment [...] appears to prejudice a defendant or the government." A court should grant severance only when "there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v. United States, 506 U.S. 534, 538, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). District courts possess "considerable latitude" regarding severance motions, and "will be overturned only if that wide discretion is plainly abused." United States v. O'Bryant, 998 F.2d 21, 25 (1st Cir. 1993) (citation omitted).

III. Discussion

For the reasons addressed more thoroughly below, the Court is not persuaded that severance is warranted pursuant to Federal Rule of Criminal Procedure 14.

A. Alleged Evidentiary Spillover Prejudice

According to defendant Bravo, severance is justified because defendant Martinez's 1999 grand jury testimony relating to the criminal investigation of former Senator Freddie Valentin is unfairly prejudicial to defendant Bravo.⁵ (Docket No. 729 at pp. 7–10.) In joint trials, the risk of " ‘spillover’ may arise where evidence that is not admissible or should not be considered against one defendant on his or her own is admitted against a co-defendant." United States v. Cancel–Lorenzana, 28 F.Supp.3d 138, 140 (D.P.R. 2014) (Besosa, J.) Prejudice resulting from spillover evidence is a possible basis for severance pursuant to Federal Rule of Criminal Procedure 14(a). To prevail on a spillover claim, however, "a defendant must prove prejudice so pervasive that a miscarriage of justice looms." Id. (quoting United States v. Pierro, 32 F.3d 611, 615 (1st Cir. 1994) ). Moreover, a defendant asserting evidentiary spillover prejudice " ‘must overcome the dual presumptions that a jury will capably sort through the evidence and will follow limiting instructions from the court’ to consider each defendant's guilt separately." Cancel–Lorenzana, 28 F.Supp.3d at 140 (quoting United States v. Turner, 93 F.3d 276, 284 (7th Cir. 1996) ).

Defendant Bravo's argument is premature and based on speculation. The government has not moved to admit, and the Court has made no ruling as to the admissibility of, defendant Martinez's 1999 grand jury testimony. Indeed, defendant Bravo states correctly that in determining the prejudicial effect of a joint trial, the prime consideration is "whether the court may reasonably expect the jury to collate and appraise the independent evidence against each defendant." Docket No. 729 at p. 8 (citing United States v. Perkins, 926 F.2d 1271, 1281 (1st Cir. 1991) ). The Court cannot assess whether the jury will "collate and appraise the independent evidence" because the admission of the evidence in dispute, the 1999 grand jury testimony of defendant Martinez, is not a foregone conclusion. Severance based on potentially prejudicial evidence the government has not attempted to introduce at trial is an insufficient basis to sever defendants' joint trial.⁶

Defendant Martinez, like defendant Bravo, seeks severance on the basis of prejudice caused by spillover evidence. Defendant Martinez argues that severance is required pursuant to Federal Rule of Criminal Procedure 14 because evidence of defendant Bravo's payments to De Castro–Font threatens to "rub off" and spillover to defendant Martinez.⁷ (Docket No. 731 at p. 6.) According to defendant Martinez, this evidence is pervasively prejudicial and warrants severance because it may cause the jury to conclude that because De Castro–Font was bribed, defendant Martinez was also bribed. (Docket No. 731 at p. 5.)⁸

All relevant evidence introduced at trial is prejudicial on some level; this requires the Court to decide "if its probative value is substantially outweighed by danger of [...] unfair prejudice." Fed. R. Evid. 403. Severance based on spillover evidence is necessary only when defendants establish "pervasive prejudice," not "more than just a better chance of acquittal at a separate trial." Cancel–Lorenzana, 28 F.Supp.3d at 141 (quoting United States v. Boylan, 898 F.2d 230, 246 (1st Cir. 1990) ). The Court is not convinced that evidence regarding bribes paid to De Castro–Font by defendant Bravo is so pervasively prejudicial to defendant Martinez that defendants' impending joint trial must be severed. This is particularly so because a limiting instruction will mitigate the risk of unfair prejudice to defendant Martinez. See United States v. Richardson, 515 F.3d 74, 83 (1st Cir. 2008) ("[W]e note that the district judge limited any prejudice that might result from admission of other crime evidence by instructing the jury to consider the evidence separately as to each count"); United States v. Baltas, 236 F.3d 27, 34 (1st Cir. 2001) (appropriate limiting instruction provides adequate safeguard against evidentiary spillover prejudice).

Defendant Martinez cites numerous cases that support the broad proposition that severance is warranted when spillover evidence results in pervasive prejudice. See United States v. Sampol, 636 F.2d 621 (D.C. Cir. 1980) (holding that district court erred in failing to sever a three-defendant trial where two defendants, but not the third, were charged with the bombing murder of two victims because "[i]n cases when there is a gross disparity in the quantity and venality of the testimony against the respective joint defendants it is fair to inquire whether the jury can reasonably be expected to compartmentalize the evidence as it relates to separate defendants in the light of its volume and limited admissibility."); United States v. Mardian, 546 F.2d 973 (D.C. Cir. 1976) (overturning the conviction of a defendant who had been tried jointly with three principal members of the Watergate conspiracy, all of whom played much more substantial roles in the crime over longer periods of time); United States v. Kelly, 349 F.2d 720 (2nd Cir. 1965) (holding that the district court erred in failing to sever the trial of three co-defendants, only two of which "must have stamped in the eyes of the jurors as unscrupulous swindlers of the first rank.")⁹

These cases are inapposite. While severance may be appropriate...