                       UNITED STATES COURT OF APPEALS
Filed 1/9/97
                                      TENTH CIRCUIT



 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
                                                                   No. 96-3083
 v.
                                                            (D.C. No. 95-CR-10009-4)
                                                               (District of Kansas)
 GUILLERMO GONZALEZ,

           Defendant - Appellant.




                                ORDER AND JUDGMENT *


Before BALDOCK, KELLY and LUCERO, Circuit Judges.


       Guillermo Gonzalez appeals his conviction for conspiracy to distribute

cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. He contends that the

district court committed three reversible errors: first, that the court refused to

allow him to obtain a timely jury determination of his guilt or innocence; second,

that the court denied dismissal for double jeopardy; third, that the court allowed

an involuntary “proffer” into evidence. We exercise jurisdiction pursuant to 28

U.S.C. § 1291, and affirm.


       *
         This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders
and judgments; nevertheless, an order and judgment may be cited under the terms and conditions
of 10th Cir. R. 36.3.
                                         I

      On November 14, 1994, defendant was arrested under California law for

possessing a vehicle with a false or concealed compartment. Although officers

found no drugs in defendant’s Toyota Previa van, a drug detection dog “alerted”

on the hidden compartment, indicating that it had at one time contained drugs.

However, the police did find $6,550 in cash and a copy of registration papers for

another Previa van. One week later, Kansas police stopped this second van, and

found 111 kilograms of cocaine in a hidden compartment very similar to that

found in appellant’s vehicle. Imelda Gonzalez, who is not a relative of appellant,

was a passenger in this second van. Found with her was an electronic organizer

that contained defendant’s pager number. Shortly thereafter, officers stopped a

third Previa van, and inside a similarly hidden compartment, discovered 102

kilograms of cocaine.

      At trial, Ms. Gonzalez testified that defendant had been recruited by Mirta

Gomez to drive vans containing cocaine from Los Angeles to New York. Ms.

Gonzalez stated that she was paid by Thelma Wingist to keep schedules of the van

trips, call drivers when a van was ready to depart, and herself make some ten trips

to New York in these vans. Ms. Gonzalez further testified that she arranged

several trips made by defendant, and that his pager number was given to her by

Mirta Gomez.


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                                             II

       In its opening statement, the prosecution indicated that Mirta Gomez would

testify she recruited appellant into the alleged drug conspiracy. However, Ms.

Gomez was never called to the stand by the prosecution. After the government

presented its evidence against defendant, Ms. Gomez was called as a defense

witness by defendant’s indicted co-conspirator, Irving Parker. Though Ms.

Gomez did not refer to defendant directly, she testified that she told other van

drivers that the hidden compartments were being used to conceal cocaine.

       Arguing that Mr. Parker’s defense, and Ms. Gomez’s testimony in

particular would be prejudicial, defendant filed a number of motions for

severance. On the same grounds, defendant filed a motion for judgment of

acquittal at the close of the government’s case-in-chief against him and prior to

Ms. Gomez’s testimony. We review the denial of severance for abuse of

discretion. United States v. Wacker, 72 F.3d 1453, 1468 (10th Cir. 1996). 1

       To meet the “heavy burden” required to prevail on a severance motion, a

“defendant must demonstrate actual prejudice [from the failure to sever] and not

merely a negative spill-over effect from damaging evidence presented against

codefendants.” Id.; see also Zafiro v. United States, 506 U.S. 534, 539 (1993)

(“[A] district court should grant a severance . . . only if there is serious risk that a

       1
        Both the government and defendant analyze defendant’s motion for judgment as a
motion for severance. For purposes of this appeal, we accept this characterization.

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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.”).

Showing that separate trials might have offered a better chance of acquittal is not

sufficient to meet the defendant’s burden. United States v. Petersen, 611 F.2d

1313, 1331 (10th Cir. 1979).

      Defendant claims he was denied the “absolute right to test [the

government’s] evidence” at the close of the prosecution’s case-in-chief.

Appellant’s Br. at 28. He argues that Ms. Gomez’s testimony prejudiced him

because it provided strong circumstantial evidence he knew he was transporting

cocaine during the van trips. He further contends that without this testimony the

jury might not have found he possessed the requisite knowledge for conspiracy.

      Mr. Gonzalez has been unable to find federal authority addressing the

precise situation at issue here—where one defendant seeks judgment at the close

of the government’s case-in-chief, but a codefendant seeks to mount a potentially

prejudicial defense. His citation to state law, see State v. Martin, 673 P.2d 104

(Kan. 1984), is unpersuasive. In Martin, one defendant was accused of aiding and

abetting, while the second was accused of murder. In his defense, the second

accused the first of committing the murder. The second’s defense was wholly

antagonistic toward the first defendant. No such conflict is present in this case.

The core of Mr. Parker’s defense was that as a van driver he did not know he was


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carrying cocaine. That contention does not contradict Mr. Gonzalez’s defense in

any substantial manner.

      Nor has defendant shown that the district court abused its discretion by

refusing him severance. The court specifically instructed the jury to give separate

consideration to the case of each defendant,” see Zafiro, 506 U.S. at 541, and

was careful to prevent Ms. Gomez from testifying as to her interactions with

defendant. Moreover, the government was specifically barred from asking Ms.

Gomez whether she told defendant that he was transporting cocaine. Under these

circumstances, we cannot conclude that the district court’s denial of severance

was “arbitrary, capricious or whimsical.” United States v. Wright, 826 F.2d 938,

943 (10th Cir. 1987).

                                          III

      Defendant’s pretrial motion to dismiss for double jeopardy was premised on

his earlier conviction under California law for “Possession of a False

Compartment with the Intent to Transport a Controlled Substance,” which arose

from his original arrest in California. We review the district court’s denial of this

motion de novo. United States v. Rodriguez-Aguirre, 73 F.3d 1023, 1024-25

(10th Cir. 1996).

      A defendant bears the burden of showing double jeopardy, id. at 1025, and

Mr. Gonzalez cannot do so. Under the dual sovereignty doctrine, a defendant may


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be prosecuted for a violation of federal law by the federal government following

conviction in state court under state law for a crime arising out of the same acts

or occurrences. See Abbate v. United States, 359 U.S. 187 (1959); see also

United States v. Andersen, 940 F.2d 593, 596 (10th Cir. 1991). Defendant would

have us ignore this law, but we are unable to do so.

                                         IV

      After pleading nolo contendere to the California charge, defendant was

released on the basis of time served awaiting trial, and returned to Florida.

Subsequently, he was approached outside his Florida residence by a group of

three men: Trooper Darrell Pressnell from the Drug Enforcement Agency; Deputy

Mike Crawford, also from the DEA; and Assistant United States Attorney, Blair

Watson. In response to questioning by Trooper Pressnell, the defendant twice

denied that he had recently been arrested in California. Eventually, Mr. Gonzalez

admitted to his arrest, and the four men proceeded into the residence. At that

point, Mr. Watson identified himself and stated that nothing the defendant said

would be used against him.

      At trial, the statements that were made to Trooper Pressnell by the

defendant prior to the group’s moving inside the residence were admitted into

evidence. Defendant argues that such admission was erroneous for two reasons:

first, that the conversation was protected as a “proffer” under Rule 410 of the


                                         -6-
Federal Rules of Evidence; second, that as a confession, the court should have

determined the voluntariness of the statement pursuant to 18 U.S.C. § 3501(a).

We disagree.

      We review the district court’s determination that defendant’s statements to

Trooper Pressnell lay outside the protection of Rule 410 for clear error. See

United States v. Hare, 49 F.3d 447, 450-51 (8th Cir. 1994) (denial of motion to

suppress under Rule 410 reviewed for clear error); cf. United States v. McCullah,

76 F.3d 1087, 1100 (10th Cir. 1996) (subsidiary factual findings as to

voluntariness of a confession reviewed for clear error). Neither Trooper Pressnell

nor his companions suggested that their conversation with the defendant outside

his residence was a proffer. Mr. Watson’s statement that nothing the defendant

said would be used against him was not made until after all four men had entered

the residence. Prior to that point, Trooper Pressnell sought only to ascertain

whether the defendant had recently been stopped and arrested in California. Such

a conversation cannot amount to a “plea discussion” covered by Rule 410.

Defendant provides no support for the proposition that because a later portion of

his conversation with Pressnell, Crawford, and Watson was a proffer, the entire

conversation must be treated as such. We therefore conclude that the district

court committed no clear error in finding that plea discussions did not begin until

after the parties entered the residence.


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      Finally, even assuming that the defendant’s statements to Pressnell

constituted a “confession” under 18 U.S.C. § 3501(e), the defendant failed to

invoke his § 3501(a) right to a pre-trial voluntariness hearing pre-trial, and

thereby waived his right to do so at trial and on appeal. See United States v.

Miller, 987 F.2d 1462, 1464 (10th Cir. 1993). Although the district court may

grant relief from a defendant’s pre-trial waiver for cause, see id., none was shown

in this case. The defendant seeks to show cause by arguing that the government

convinced him his statements to Pressnell would only be used for purposes of

impeachment. Consequently, he contends, he perceived no basis on which to

object to their admission pre-trial. However, defendant’s belief that Pressnell’s

testimony would only be used for impeachment purposes was based upon an

erroneous understanding that the entire conversation fell within the terms of the

proffer. Accordingly, we conclude that the district court did not abuse its

discretion in refusing to examine the voluntariness of the defendant’s statements

to Pressnell.

                                          V

      In conclusion, none of defendant’s arguments avail him. His motions for

severance and judgment of acquittal were properly denied. He was not subjected

to double jeopardy by his two separate prosecutions and convictions under state

and federal law. Finally, defendant’s conversation with Trooper Pressnell lies


                                          -8-
outside the protection of Rule 410, and its voluntariness was not appropriately

before the district court.

      AFFIRMED.

                                      ENTERED FOR THE COURT



                                      Carlos F. Lucero
                                      Circuit Judge




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