United States v. Gerardo Martinez Rodriguez, Aka: Gerardo M. Rodriguez, Aka: Jerry Rodriguez

Citation: 24 F.3d 251Docket: 92-50519

Court: Court of Appeals for the Ninth Circuit; November 1, 1994; Federal Appellate Court

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Gerardo Rodriguez appeals his jury conviction for conspiracy to possess and distribute a controlled substance, possession with intent to distribute, and using a firearm during a drug trafficking crime, resulting in a 295-month prison sentence. He raises four claims of error: (1) the district court should have severed his case from codefendant Ron Burrows; (2) an audio tape recording submitted by the prosecution should have been excluded; (3) there was insufficient evidence to support his conviction; and (4) there was insufficient evidence to justify a sentence enhancement based on his leadership role. The Ninth Circuit rejects all claims and affirms the conviction and sentence.

The case's background details that on December 4, 1991, a DEA agent, posing as a buyer, arranged a meeting through Burrows, who contacted Rodriguez to acquire five pounds of methamphetamine, quoted at $50,000. Following Rodriguez's instructions, Burrows met with him to retrieve the drugs. Burrows was arrested after delivering the methamphetamine to the DEA agent, and he later attempted to portray himself as an undercover operative. He made recorded calls to Rodriguez, facilitating a meeting where Rodriguez and two accomplices arrived to negotiate a deal involving methamphetamine and a vehicle.

DEA agents, identifying themselves as police, approached a vehicle where Mr. Rodriguez and two others were present. Upon their approach, the individuals attempted to flee, and Rodriguez was apprehended with a handgun found in his pants. Rodriguez moved for severance under Federal Rule of Criminal Procedure 14, arguing that a joint trial with codefendant Burrows was prejudicial due to conflicting defenses—Burrows claimed his involvement in a drug deal was part of a deal with law enforcement to catch Rodriguez. The government contended that Rodriguez waived his right to appeal the severance denial and that his motion lacked merit. The court found no waiver of Rodriguez's right to severance but concluded the joint trial did not result in manifest prejudice against him. 

The waiver of severance is often considered if a motion is not renewed at the close of evidence; however, this is not an inflexible rule. Diligent pursuit of a severance motion is key, and exceptions exist for motions made in response to prejudicial evidence. Rodriguez made several motions for severance before the trial, during the government's case, and finally after closing arguments, demonstrating diligence in pursuing his request. Ultimately, the court denied the severance without prejudice each time.

Severance under Rule 14 is not automatically required for mutually antagonistic defenses, as established in Zafiro v. United States. Prejudice must be demonstrated, and severance is more justified when defenses are not just inconsistent but overtly antagonistic. A district court may grant severance if a joint trial poses a serious risk to a defendant's specific trial rights or undermines the jury’s ability to reliably determine guilt or innocence. In cases where one defendant claims to be a government informant, severance is only necessary if accepting that defense would negate the possibility of acquitting the other defendant. 

In the situation involving Mr. Rodriguez, the court faced a nuanced decision regarding his initial motion for severance. Although the informer defense did not alleviate the prosecution's burden, the judge recognized that a joint trial would allow the introduction of damaging evidence against Rodriguez that would not be admissible in a separate trial, particularly concerning the sheriff's department's investigation of him. Despite this concern, upon reviewing the joint trial’s developments, the court ultimately determined that the prejudicial evidence presented was not sufficient to deny Mr. Rodriguez a fair trial. 

Key inadmissible testimonies included statements from codefendant Burrows regarding his involvement in drug-related activities with Rodriguez and his cooperation with Deputy Vann in targeting Rodriguez for investigation. Deputy Vann also detailed intentions to arrest Rodriguez for suspected drug distribution. The presence of this testimony, while prejudicial, was deemed insufficient to warrant a retrial based on the overall trial outcome.

Overwhelming evidence established Rodriguez's guilt, rendering certain statements non-essential to the government's case. Key evidence included Rodriguez being apprehended at the drug transaction scene, appearing to coordinate the operation, fleeing upon police identification, and possessing a firearm. Testimony from undercover agents confirmed they overheard Burrows coordinating the drug deal with Rodriguez and witnessed the transaction. Burrows's admissible testimony indicated his direct involvement in arranging and executing the drug purchase with Rodriguez.

The judge's instructions to the jury emphasized that evidence of Rodriguez being under investigation did not equate to guilt, a caution reiterated before jury deliberations. This oversight regarding the failure to sever trials was deemed harmless due to the overwhelming evidence against Rodriguez.

The district court admitted audio recordings of Burrows's phone calls related to the drug deal. Rodriguez argued the recordings were mostly inaudible and that one transcript was improperly created. However, partially inaudible recordings can still be admissible if they hold probative value. The determination of their audibility was a factual question, subject to abuse of discretion review. The court found no abuse in admitting the recordings, having assessed their content through the DEA agent's testimony.

Rodriguez also contested the use of government-prepared transcripts by the jury. The transcripts, though not entered into evidence, were provided as aids during the tape playback, with the judge clarifying that discrepancies should be resolved in favor of the tape. The second government transcript was prepared by Agent Mishel Piastro, who was present during the calls. The court allowed the jury access to all three transcripts while listening to the tape, ensuring they understood the transcripts were not evidence.

The review of a district court's decision to allow a jury to use transcripts as listening aids is conducted for abuse of discretion. A government-prepared transcript can be utilized by the jury if the district judge verifies its accuracy, an agent confirms the transcription, and a limiting instruction is given. In this case, a limiting instruction was provided, and agent Piastro, who was present during the conversation, testified to the accuracy of his transcript. However, the district judge did not independently assess the transcripts' accuracy but presented the jury with three differing transcripts, allowing them to determine which was correct. This approach is not inherently prejudicial, as it engages the jury in its fact-finding role. Nonetheless, potential prejudice exists due to discrepancies between government and defense transcripts, particularly where the government’s version included portions deemed inaudible by the defense. Despite this concern, the overwhelming evidence of guilt and the judge's instruction that the transcripts were not evidence rendered any error harmless.

Regarding the sufficiency of evidence for Mr. Rodriguez's conviction, the standard requires that any rational juror, viewing the evidence favorably for the prosecution, could find the essential elements of the crime beyond a reasonable doubt. The elements for conspiracy include an agreement to pursue an illegal objective, overt acts in support of that objective, and intent to commit the crime. For possession with intent to distribute, the requirements are possession of a controlled substance with intent to distribute. Testimonies from DEA agents substantiated that Rodriguez conspired with Burrows to distribute methamphetamine, and his actions at the drug deal site indicated overt acts supporting the conspiracy. His authority to negotiate a trade for methamphetamine demonstrated possession, which can be established circumstantially. Finally, his intent was inferred from active participation in the drug sale.

Mr. Rodriguez claims the evidence for count 3, relating to the use of a firearm during a drug trafficking crime, is inadequate, arguing he did not commit a drug trafficking offense. However, since he was sufficiently convicted on counts one and two, the evidence also justifies the firearm conviction. Regarding sentence enhancement, Rodriguez disputes the district court's upward adjustment, asserting it incorrectly identified him as an organizer or leader in his criminal conduct. The district court's finding, reviewed for clear error, relates to Sentencing Guideline Sec. 3B1.1(c), which allows for a two-level increase for defendants who lead or manage criminal activities involving others. The evidence supporting Rodriguez's status as a leader includes testimony from codefendant Burrows, who stated that Rodriguez supplied the drugs for sale, as well as Rodriguez's authoritative role in deciding the transaction's location and negotiating with a DEA agent. The court affirmed the sentence. This ruling is not for publication and may not be cited except as allowed by 9th Cir. R. 36-3. Rodriguez also acknowledged that the seized methamphetamine was meant for distribution, not personal use.