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United States v. Rivera

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


decided: June 28, 1965.

UNITED STATES OF AMERICA, APPELLEE,
v.
DOMINGO TORRES RIVERA, APPELLANT

Waterman, Friendly and Smith, Circuit Judges.

Author: Smith

J. JOSEPH SMITH, Circuit Judge:

Appellant Domingo Torres Rivera appeals on the sole ground of prejudicial joinder, from sentence on judgments of conviction on six counts of narcotics violation on trial to the jury in the United States District Court for the District of Connecticut, T. Emmet Clarie, District Judge. We find no error in the exercise of the court's discretion by denial of motions for severance and affirm the judgments.

Rivera was indicted in three indictments. In one, Cr. #11241 he was charged in two counts with violating 21 U.S.C. § 174*fn1 and 26 U.S.C. § 4705(a)*fn2 by a sale, etc. of heroin at Hartford on or about June 4, 1964. In the second, Cr. #11242 he was charged jointly in two counts of a four count indictment with one Angel Marrero-Vega with violating 21 U.S.C. § 174 and 26 U.S.C. § 4705(a) by a sale, etc. of heroin at Hartford on or about June 5, 1964. In the third, Cr. #11253, he was charged jointly in two counts of a seven count indictment with one Jorge Luis Milan with violating 21 U.S.C. § 174 and 26 U.S.C. § 4705(a) by a sale, etc. of heroin at Hartford on or about September 1, 1964.

Rivera's motions for relief from prejudicial joinder were denied and the six counts of the three indictments naming him were consolidated for trial. The other defendants were severed, having changed plea as to some counts.

The sole question on appeal is whether there was an abuse of judicial discretion in refusing Rivera separate trials on the charges in the three indictments. The rules applicable are Rules 8(a),*fn3 13,*fn4 and 14*fn5 of the Federal Rules of Criminal Procedure. The offenses charged are of the same or similar character, narcotic transactions closely related in time, place and manner of execution, so that they properly could have been joined in one indictment in separate counts. Moreover, they might have been joined as substantive counts to a count of conspiracy by Rivera and others to sell narcotics from his place of business. To be sure, the September 1 transaction was somewhat removed in time from the June transactions and a decision to sever the counts based on it would have been sustainable, but we cannot say that refusal to sever was an abuse of judicial discretion. The proof on each charge was relatively simple and uncomplicated and separate consideration, under proper instructions, well within a jury's competence. United States v. Lotsch, 102 F.2d 35 (2 Cir. 1939).*fn6

The judgments are affirmed.

Disposition

The judgments are affirmed.


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