
USCA1 Opinion

	




                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                ____________________          No. 96-2182                                   UNITED STATES,                                      Appellee,                                         v.                                   ADOLFO MAGANA,                               Defendant - Appellant.                                ____________________          No. 96-2183                                   UNITED STATES,                                      Appellee,                                         v.                               ANA MARIA MEDA-SANTOS,                               Defendant - Appellant.                                ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                ____________________                                       Before                          Stahl and Lynch, Circuit Judges,                         and O'Toole, Jr.,  District Judge.                                _____________________                                         Of the District of Massachusetts, sitting by designation.               Thomas J. Connolly                                , by appointment of the court, for appellant          Adolfo Magana.               Bruce                      M.                         Merrill, by appointment of the court, with whom          Merrill & Merrill, P.A.                                , was on brief for appellant Ana Maria Meda-          Santos.               F. Mark Terison, Assistant United States Attorney, with whom          Jay               P.                  McCloskey, United States Attorney, and   Donald                                                                  E.                                                                      Clark,          Assistant United States Attorney, were on brief for appellee.                                ____________________                                 September 16, 1997                                ____________________                                         -2-                    O'TOOLE,                             District Judge                                          . Adolfo Magana was convicted by          a jury of entering into a sham marriage to evade the immigration          laws, in violation of 18 U.S.C. S 1325(b). His codefendant Ana          Maria Meda-Santos was convicted of aiding and abetting Magana's          crime. 18 U.S.C. S 2. Both defendants were also convicted of          conspiracy to defraud the United States. 18 U.S.C. S 371.                     They appeal from their convictions, asserting that the          district court erred in the way it dealt with the government's          violation of a witness sequestration order. The defendants          criticize the district court's handling of the violation in three          respects. First, both defendants contend that the court erred in          denying their motions for a mistrial. In addition, Meda-Santos          argues that the court abused its discretion in striking the          redirect and Magana's recross-examination of the witness involved,          thereby depriving her of the opportunity for any recross-          examination of the witness. Finally, Meda-Santos objects to the          district court's denial of her pretrial severance motion, and she          points to the codefendants' disagreement as to how the court should          respond to the sequestration violation as evidence of prejudice to          her from the refusal to sever.  The defendants further contend that          the court erred in denying them a pretrial opportunity for          discovery concerning their allegations of selective prosecution and          later in denying their motion for a new trial when events at trial          added support to the allegations.                     For the reasons that follow, we find no error and affirm          the convictions.                                          -3-                                         I.                    Magana is a native and citizen of El Salvador who came to          the United States seeking asylum. He was granted leave to remain          in the country on a nonpermanent basis and to work while his          application for asylum pended. Magana and Meda-Santos were friends          who spent a substantial amount of time together. They both were          employed by the same company in Portland, Maine, as were two other          persons involved in relevant events, Tina Ferrante and Ronda          Cunningham.                     Magana's legal status in this country was only temporary,          and if his application for asylum were to be rejected, he faced the          prospect of losing his right to remain legally within the United          States. In March 1995, his friend Meda-Santos approached her co-          worker Ferrante, a citizen, to see if she would agree to marry          Magana so he could become a permanent resident. Ferrante declined,          but she suggested her friend Cunningham for the scheme. On July          14, 1995, Magana, Meda-Santos, Ferrante, and Cunningham all met at          Magana's apartment and worked out the plan. Cunningham agreed to          marry Magana in exchange for $2,000.                    A week later, Magana and Cunningham were married by a          justice of the peace at Magana's apartment in the presence of Meda-          Santos and Ferrante. That evening Cunningham received a partial          payment of the agreed price for her participation. There was          evidence that despite their marriage, Magana and Cunningham did not          live together as husband and wife.                                         -4-                    In late August, Magana and Cunningham completed and          submitted the forms required by the Immigration and Naturalization          Service ("INS") for an adjustment of Magana's status to permit him          permanent residence by reason of his marriage to a United States          citizen. In accordance with INS practice, after the forms had been          reviewed Magana and Cunningham were summoned to an interview at the          local INS office. In separate interviews, they gave inconsistent          information about their circumstances and living arrangements.          Each appeared to know little personal information about the other.          When Cunningham was confronted by the interviewer with the fact of          the inconsistencies, she confessed her participation in the scheme.          She was eventually given immunity in exchange for her cooperation          with the prosecution, and she was a key witness at the trial of the          defendants.                    Both defendants filed pretrial motions to sever their          trials, which were denied by a magistrate judge for the reason that          neither had shown any likely prejudice from a joint trial. The          defendants also sought pretrial discovery from the government to          support their claim that these defendants, Spanish-speaking non-          citizens, were victims of selective prosecution because of their          ethnicity and national origin. The district court refused to order          the requested discovery.                                         Ferrante also cooperated with the prosecution and was not          charged, although it does not appear that she was granted immunity.                                         -5-                    At the commencement of the trial, counsel for Magana          moved orally for the sequestration of witnesses. The court granted          the motion, saying, "Yes, and I'll rely on all counsel to watch the          courtroom to let me know whether there's anyone in who should not          be present." Trial Transcript ("Tr.") at 3. Nothing further was          said about any specific terms of the sequestration order.                     The first trial day ended with the important government          witness Cunningham on the stand. She had given extensive testimony          on direct examination and had been cross-examined at length by          counsel for both defendants.  The prosecutor indicated that he          would have some redirect examination when the trial resumed the          next day.                    After redirect examination that lasted just over fifteen          minutes, counsel for Magana conducted recross-examination, in the          course of which the witness disclosed, in answer to a question,          that she had talked to the prosecutor about her testimony during          the overnight recess.                     Defense counsel immediately protested that there had been          a violation of the witness sequestration order, and they moved for          a mistrial. The court denied the motions. Although the court          found that the prosecutor had violated the sequestration order, it          also concluded that there was no prejudice to the defendants from          the violation. The court said, "[T]he redirect, although competent          redirect, certainly, did not significantly impair whatever value                                         The district court was moved to observe, twice, that the          questioning had become repetitive. Tr. at 228, 261.                                         -6-          there was in the cross-examination that took place yesterday."          Tr. at 266. Moreover, the court found that the violation of the          sequestration order had been unintentional, the result of a          misunderstanding by the prosecutor of the scope of the order.                     After denying the mistrial motions, the court extended to          defense counsel the option of continuing the recross in front of          the jury or of conducting a                                      voir dire                                              , outside the presence of the          jury, to determine the discussions that had occurred between the          witness and the prosecutor. The court said: "I certainly will          permit cross-examination about the nature of the meeting this          morning, what was said or suggested, and the only issue is whether          you request to do that now before doing it in front of the jury, or          whether you would rather do it once with the witness present in          front of the jury." Tr. at 267. After conferring, counsel elected          to conduct a voir dire.                    In the voir dire, Cunningham testified that she had met          for fifteen to twenty minutes that morning with the Assistant          United States Attorney and an INS Special Agent. She testified          that the prosecutor went over the questions he intended to ask her          in the course of redirect examination, identifying the particular          parts of the cross-examination that the questions were intended to          address. She testified that she was not told how she should answer          the questions that would be asked.                     Counsel for both defendants asked that Cunningham's          testimony that day be stricken. Tr. at 264. One of them          summarized the testimony as indicating that "the U.S. Attorney's                                         -7-          Office essentially did a practice run of the redirect examination          today." Tr. at 285. Counsel argued that the rehearsal gave the          prosecution an unfair advantage that it would have lacked if the          sequestration order had been obeyed.                     After a short recess to consider the matter, the district          court confirmed its denial of the defense motions for a mistrial,          and further said:                      Counsel, I am considering striking the                      testimony for reasons I'll describe in a                      moment, but before I do that, I want to be                      sure that the defendants' lawyers fully                      appreciate and understand what they're                      doing on this score. I've denied the                      motion for mistrial. If I strike the                      testimony, Ms. Cunningham will not take                      the stand any further, she will be done as                      a witness.                       That means that the cross-examination that                      took place this morning as well as the                      direct will all come out, as well as the                      Defendant's Exhibit 9 that was admitted,                      the Government's Exhibit 200, the                      cooperation agreement. That may be able to                      come in in some other fashion, and                      therefore, the defendants are choosing not                      to explore any further credibility issues                      or reliability issues concerning Ms.                      Cunningham.                      I want to be sure that's being done                      carefully and intentionally because if I                      grant the motion to strike the testimony                      this morning, what I'll be instructing the                      jury to do is to consider only the                      testimony of Ms. Cunningham that was given                      yesterday on direct and cross.                                         There is no doubt that the court meant "recross-examination" and          "redirect."           Exhibit 9 was a receipt from INS for money paid to it by          Cunningham.                                          -8-          Tr. at 288-89.                    At this point defense counsel requested disparate relief.          Counsel for Magana asked that the testimony be stricken; counsel          for Meda-Santos, who unlike Magana's counsel had yet to ask any          questions on recross, withdrew his motion to strike the testimony          and insisted on the opportunity to conduct recross-examination.                     The court struck the testimony, both redirect and          recross, and instructed the jury that they should disregard it and          consider only the testimony the witness had given the day before.          Neither party objected to the instruction given to the jury.                    The court also told counsel:                      Now I'm cognizant of [Meda-Santos'                      counsel's] argument that there's certain                      things he would like to get out of this                      witness, possibly he will want to call her                      on his direct case, that's entirely up to                      [him].          Tr. at 291. Counsel for Meda-Santos asked that Cunningham be          advised to remain "on call" for further testimony, but he did not          later call Cunningham as a witness.                                         II.                                         A.                    The sequestration of trial witnesses is a practice of          long standing, and it may take various forms. "The judge's power to          control the progress and, within the limits of the adversary          system, the shape of the trial includes broad power to sequester          witnesses before, during, and after their testimony."  Geders v.          United States, 425 U.S. 80, 87 (1976). Until the adoption of the          Federal Rules of Evidence, however, there was no positive rule                                         -9-          governing the practice generally in the federal courts, except that          the matter was committed to the sound discretion of the trial          court. See                      Holder v.                                United States                                            , 150 U.S. 91, 92 (1893). Rule          615 now requires the court, upon a party's request, to "order          witnesses excluded so that they cannot hear the testimony of other          witnesses." Fed. R. Evid. 615. See                                              United States                                                           v.                                                               Sepulveda, 15          F.3d 1161, 1175-76 (1st Cir. 1993);                                             United States                                                          v.                                                              Arias-Santana,          964 F.2d 1262, 1266 (1st Cir. 1992).                    Apart from this "heartland" of courtroom sequestration          mandated by Rule 615, the court retains discretion to add other          restrictions or not, as it judges appropriate. Sepulveda, 15 F.3d          at 1176 ("Outside of the heartland, the district court may make          whatever provisions it deems necessary to manage trials in the          interests of justice."). The regulation of witness conduct outside          the courtroom is thus left to the district judge's discretion.                                                                         Id.          The court may, for example, order that witnesses not converse with          each other about the case.  See Arias-Santana, 964 F.2d at 1266.          Further, the court has the discretion to prohibit counsel from          conferring with a witness during the witness's testimony, including          during any recesses in the trial.  See Geders, 425 U.S. at 87-88.                    In this case the court granted Magana's oral motion for          sequestration of witnesses without elaborating the terms of the          order. It appears that the court assumed counsel's familiarity with          a long-standing custom in the district that precluded counsel from          conferring with a witness until the witness had been excused from                                        -10-          the stand.  As it happened, the prosecutor had only recently          relocated to the district and was not familiar with the local          practice. Indeed, the judge noted that this was the prosecutor's          first trial before him. Nevertheless, it was not unreasonable for          the court to presume that an Assistant United States Attorney would          be familiar not only with the written rules of local practice, but          also with those unwritten rules that had, by repeated application          over time, become established as a "custom" of practice in the          court. It is plain that the district court regarded the          prohibition against conferring with a testifying witness as such an          established custom, and we have no reason to question that          assessment.                    The district court concluded that the prosecutor's          transgression had been inadvertent, "based on a misunderstanding of          the rule." Tr. at 290. The defendants do not quarrel with that          conclusion, and the record gives us no reason to doubt it. Because          the violation was inadvertent, there was no need for any punitive          sanction, and the focus of the court's response was properly on                                         The district judge announced that he found the prosecutor's          meeting with the witness to be "a clear violation of the practices          of the court," and added, "I can't at the moment remember whether          it's specified in the local rules or whether it's simply a custom          that has been so long assumed that it's not present there." Tr. at          266. See also                        Tr. at 262. In fact, the district's local rules do          not address the matter.   See Local Rules of the United States          District Court for the District of Maine. To avoid the problem          that arose in this case, a district court may find it advisable to          promulgate, by local rule or otherwise, standard terms for witness          sequestration orders.                                        -11-          what needed to be done to prevent any prejudice to the defendants          from the violation.                                        -12-                    As the district court has discretion in fashioning          sequestration orders, it likewise has discretion in enforcing them.          Arias-Santana, 964 F.2d at 1266 ("[T]he sanction determination is          committed to the sound discretion of the trial court."). See also          United States                       v.                           Rossetti, 768 F.2d 12, 16 (1st Cir. 1985);                                                                      United          States v.                    Arruda, 715 F.2d 671, 684 (1st Cir. 1983). We review the          district court's action only to see if there was an abuse of that          discretion. Arias-Santana, 964 F.2d at 1265;                                                       Rossetti, 768 F.2d at          16. There was not.                    We have recommended the course a district court should          follow to deal with a situation in which evidence somehow improper          is put before the jury: the court should strike the offending          evidence and promptly instruct the jury to disregard it.          Sepulveda, 15 F.3d at 1184. "[W]ithin wide margins, the potential          for prejudice stemming from improper testimony . . . can be          satisfactorily dispelled by appropriate curative instructions."          Id. Jurors are presumed to follow such instructions, except in          extreme cases. Id. at 1185.                    The district judge took exactly those steps. He responded          promptly to the problem. "Swiftness in judicial response is an          important element in alleviating prejudice once the jury has been          exposed to improper testimony."    Id. He permitted counsel to          examine the witness about her conversation with the prosecutor and          gave the defendants the choice to do that either in the presence of          the jury or on  voir                                 dire. After the   voir                                                         dire, he carefully          evaluated the possibility of prejudice to the defendants before                                        -13-          determining to strike the testimony, and even after making the          tentative decision, he took steps to assure that counsel had          considered fully what impact striking the testimony might have on          the state of the evidence.                     The circumstances did not call for more extreme action.          "Declaring a mistrial is a last resort, only to be implemented if          the taint is ineradicable, that is, only if the trial judge          believes that the jury's exposure to the evidence is likely to          prove beyond realistic hope of repair."  Id. at 1184.                     The significance of the evidence that was stricken was          not great in the context of Cunningham's entire testimony. There          had been extended cross-examination by both defendants the day          before. The redirect itself was relatively brief, and the court          found that it "did not significantly impair whatever value there          was" in the previous cross-examination. Tr. at 266. Because of the          relative brevity of the redirect, and because it was clearly          separated from the balance of the witness's testimony by the          overnight recess, the court concluded that the jury could          realistically follow the instruction to put it out of their minds          and to consider only the previous day's testimony by the witness.          Accordingly, the court decided that striking the testimony and          giving an appropriate instruction was a sufficient remedy. Our          review of the record gives us no basis to say that that judgment          was clearly wrong.                                         An abuse of discretion might be shown if the district court has          made "a clear error of judgment."  United States v. Hastings, 847                                        -14-                    Meda-Santos further contends that striking the testimony          deprived her of the opportunity, which Magana briefly had, to          conduct recross-examination of the witness. The court should have          left the tainted testimony alone, she says, and let her take          advantage of it on recross. To the extent that this argument          amounts to an assertion that the redirect examination was so potent          that the jury could not realistically be expected to follow the          instruction to disregard the testimony, we reject it for the          reasons just stated. To the extent it is an objection that the          defendant was deprived of a tactical weapon she might have had in          the forensic battle, it is insubstantial. She had conducted a full          cross-examination of the witness the day before, and in these          circumstances any suggestion that the loss of an opportunity for          recross amounted to a substantial infringement of her rights under          the Confrontation Clause borders on the frivolous.    See  United          States v. Mulinelli-Navas, 111 F.3d 983, 987 (1st Cir. 1997).                     Besides, the premise of the objection is infirm. Meda-          Santos was not foreclosed from any further inquiry, as she claims.          The court made clear that she could recall Cunningham to the stand          as part of her case. She now says that it is unlikely that the          court, having stricken the redirect, would have permitted her to          question Cunningham about her meeting with the prosecutor, but the          accuracy of that proposition is by no means clear. Meda-Santos          never took up the opportunity opened to her to recall Cunningham,          and how the district court would have responded to an attempt to                                        F.2d 920, 924 (1st Cir. 1988).                                         -15-          inquire into the meeting with the prosecutor is a matter for          speculation. We cannot find an abuse of discretion just because          the appellant suggests that one of the district court's potential          responses might have prejudiced her were it to have occurred.                     Finally, Meda-Santos claims that the district court's          handling of the violation of the sequestration order demonstrates          why it was an error for the court to have denied her pretrial          motion to sever her trial from Magana's. The pretrial motion to          sever was based on  Bruton  grounds. Meda-Santos does not now          contend that it was error to have denied the motion on those          grounds. Rather, she asserts a more general conflict that became          evident when, faced with inconsistent requests for action from the          codefendants, the court necessarily had to choose one and reject          the other. If Meda-Santos had been tried separately, that          conflict would not have arisen, and she could have gotten the          ruling she wanted, instead of having to live with the ruling Magana          wanted.                     Meda-Santos did not request severance when she and Magana          sought different remedies for the violation of the sequestration          order. Her failure to have made the argument to the trial court          precludes her from raising it for the first time in this appeal.          Accordingly, we review the point only for plain error,     United          States v.                    Mitchell, 85 F.3d 800, 807 (1st Cir. 1996), and there was          none.                                          Bruton v. United States, 391 U.S. 123 (1968).                                        -16-                    There are obvious advantages in judicial economy to the          joint trial of defendants accused of the joint commission of          crimes. See Zafiro v.  United                                         States, 506 U.S. 534, 537 (1993);          United                  States v.                            O'Bryant, 998 F.2d 21, 25 (1st Cir. 1993).   See          also Fed. R. Crim. P. 8. Like other important trial management          decisions, the judgment whether to sever is largely left to the          sound discretion of the trial court.    United                                                          States v.  Flores-          Rivera, 56 F.3d 319, 325 (1st Cir. 1995). The exercise of that          discretion will be condemned only where it deprives a defendant of          a fair trial, resulting in a miscarriage of justice.                                                               United States          v.             McLaughlin, 957 F.2d 12, 18 (1st Cir. 1992);                                                         Arruda, 715 F.2d at          679. There was nothing approaching that degree of prejudice to          Meda-Santos, if there was any recognizable prejudice at all, from          denial of the severance motion.                     Evidence is often admitted against one defendant but not          another in a joint trial, with limiting instructions being given          the jury. Sometimes evidence is conditionally admitted, subject to          its being stricken if the subsequent predicate does not materialize          as anticipated. It is not at all an uncommon event that the          strategies of defense counsel or the nuances of the rules of          evidence will lead codefendants to differ as to the admission of          evidence in a joint trial. Each time that happens is not an          occasion for severance.  See McLaughlin, 957 F.2d at 18.                    All in all, the trial court's handling of the          government's violation of the witness sequestration order was not          only acceptable, but admirable. There was no abuse of discretion.                                        -17-                                         B.                    Prior to trial, the defendants sought discovery from the          government to try to substantiate their claim that they were the          victims of selective prosecution because of their ethnicity and/or          national origin. In support of their motion, they pointed to press          accounts of INS enforcement actions aimed at Spanish-speaking          persons. The motion was denied on the ground that the defendants          had not made a sufficient showing of the likelihood of selective          prosecution to warrant the extraordinary discovery they were          seeking. After their convictions, the defendants moved for a new          trial, relying on the selective prosecution claim. In support of          the latter motion, they added to their prior presentation the          assertion that the trial itself had demonstrated that the          government had chosen to prosecute only the Spanish-speaking          defendants while choosing not to prosecute the other participants          in the relevant events -- Cunningham and Ferrante -- who were not          Spanish-speaking. The new trial motion was denied.                    Because a selective prosecution claim "asks a court to          exercise judicial power over a 'special province' of the          Executive," United                              States v.  Armstrong, 116 S. Ct. 1480, 1486          (1996), courts have consistently demanded "clear evidence,"   id.          (quoting United                             States v. Chemical                                                 Found., 272 U.S. 1, 14-15          (1926)), that a prosecutorial decision "had a discriminatory          effect and that it was motivated by a discriminatory purpose."          Armstrong, 116 S. Ct. at 1487 (quoting                                                 Wayte v.                                                          United States                                                                      , 470          U.S. 598, 608 (1985)). The prosecutor is presumed to have acted                                        -18-          "in good faith for reasons of sound governmental policy,"  United          States v. Saade, 652 F.2d 1126, 1135 (1st Cir. 1981), unless the          defendant can demonstrate both that she has been singled out for          prosecution when others similarly situated have not been prosecuted          and that the prosecutor's reasons for doing so were impermissible.          United States                       v.                           Penagaricano-Soler, 911 F.2d 833, 837-38 (1st Cir.          1990).                    Discovery concerning decisions to prosecute imposes          substantial costs on the prosecutor. It intrudes on "the          performance of a core executive constitutional function."          Armstrong, 116 S. Ct. at 1486. It may "divert prosecutors'          resources and may disclose the Government's prosecutorial          strategy." Id. at 1488. For these reasons, "[t]he justifications          for a rigorous standard for the elements of a selective-prosection          claim thus require a correspondingly rigorous standard for          discovery in aid of such a claim." Id.                    The defendants did not make a sufficient prima facie          showing of either discriminatory effect or discriminatory intent to          justify the discovery they requested. Their pretrial motions          relied only on a newspaper article about the arrest by the INS of          four "illegal aliens" from El Salvador and Guatemala, the videotape          of the INS interview of Magana and Cunningham (which displayed,          according to the defendants, ethnic prejudice by the INS agent),          and an unsworn statement that there were seventeen Spanish-          speaking persons in INS custody in the local county jail. The          district court properly determined that this showing fell short of                                        -19-          what the cases require. At most, these facts, viewed favorably to          the defendants, established that Spanish-speaking persons were          being prosecuted by the INS. The materials contained no          information about INS prosecutions, or the absence of them, of non-          Spanish-speaking persons. The information presented thus addressed          only one half of the critical proposition. In order to be          permitted discovery in this area, the defendants were required to          make a threshold showing that there were similarly situated persons          who were not prosecuted.  Armstrong, 116 S. Ct. at 1489. Their          proffer failed to do that.                    When they renewed their attack on this front in their          motions for a new trial, the defendants added to the pretrial          proffer the assertion that their trial itself showed the different          treatment of non-Spanish-speaking persons, because Cunningham and          Ferrante, both of whom participated in the same criminal events as          the defendants, were not charged. That contention merits closer          attention than the pretrial effort, but it nonetheless falls short          of meeting the "rigorous standard" established by the cases. At          most, the circumstance that Cunningham and Ferrante were not          charged raises the question of selective prosecution; it does not          make the prima facie showing required.                                                 See                                                     Penagaricano-Soler, 911          F.2d at 837.                    There are many factors that affect a decision to          prosecute a particular person, including "the strength of the case,          the prosecution's general deterrence value, the Government's          enforcement priorities, and the case's relationship to the                                        -20-          Government's overall enforcement plan."  Wayte, 470 U.S. at 607.          There are readily apparent nondiscriminatory reasons why Cunningham          and Ferrante were not charged. When the sham marriage scheme was          detected, Cunningham promptly confessed her role and agreed to          cooperate with officials, and the consequence of her cooperation          was freedom from prosecution. Her cooperation was a justifiable          reason for the prosecutor's decision not to charge her. Ferrante          had played a less central role in events. In fact, she had refused          a leading role. The prosecutor might well have estimated that          proving her criminal culpability was more problematic than it was          for the others. She also apparently cooperated with the Government          at the trial, and that again was a legitimate consideration for the          prosecutor to take into account. Neither the denial of the          pretrial motions for discovery nor the denial of the new trial          motions constituted an abuse of its discretion by the trial court.                                         III.                    The claims of error brought to us by the defendants are          without merit. The judgments of conviction, and the denial of the          defendants' new trial motions, are affirmed.                                        -21-
