UNITED STATES of America, Plaintiff-Appellee, v. Antonio FERNANDEZ, Jorge Recarey, Mariano Villa Del Ray, Defendants-Appellants.
No. 88-5186
United States Court of Appeals, Eleventh Circuit
Aug. 21, 1989
As Amended Jan. 16, 1990.
892 F.2d 976
That the fourth amendment “does not require police officers to close their eyes to suspicious circumstances” is beyond peradventure. Espinosa, 782 F.2d at 891. Balancing the nature and quality of the brief detention on Walraven‘s constitutional guarantees against the governmental interests in crime prevention and detection, as we must under United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983), we conclude that the character and extent of Walraven‘s detention was minimally intrusive and, thus outweighed by these governmental interests. After resolving the registration problem, Debree sought only to maintain the status quo momentarily before questioning the men in the presence of Sergeant Robinson. See Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). We note that Debree requested Sergeant Robinson‘s assistance prior to resolving the registration discrepancy. Once that discrepancy was corrected, Debree certainly was entitled to request permission to search the vehicle. Diaz-Albertini, 772 F.2d at 655 (officer‘s request to search vehicle permissible following negative NCIC check). The fact that Debree waited a moment for his backup to arrive before asking Walraven to consent to a search of the Cadillac was nothing more than reasonable police procedure.
V.
Lastly, Walraven submits that he did not consent to Debree‘s search of the Cadillac despite Debree‘s testimony to the contrary. No one doubts that an official may search a vehicle without probable cause if voluntary consent is given. E.g., Rivera, 867 F.2d at 1265. Furthermore, Walraven does not dispute that “voluntariness” in consent matters is a question of fact to be determined from the totality of the circumstances. E.g., Espinosa, 782 F.2d at 892. Given these well-established precepts and the conflict between Debree‘s and Walraven‘s testimony, we need only repeat our words in United States v. Guglielmo, 834 F.2d 866, 869 (10th Cir.1987): “It is not this court‘s function to determine which of these parties was telling the truth. That was a matter for the trial judge, who heard the testimony of the witnesses.” See Pitchford, 699 F.Supp. at 264-65.
AFFIRMED.
John W. Nields, Jr., Howrey & Simon, Washington, D.C., for Jorge Recarey.
Lori Barrist, Asst. Federal Public Defender, Miami, Fla., for Mariano Villa Del Ray.
Joseph A. DeMaria, Miami, Fla., Frank J. Marine, U.S. Dept. of Justice, Organized Crime Section, Washington, D.C., for plaintiff-appellee.
Before KRAVITCH and HATCHETT, Circuit Judges, and MARKEY*, Chief Circuit Judge.
KRAVITCH, Circuit Judge:
Antonio Fernandez, Mariano Villa Del Ray, and Jorge Recarey were indicted on one count of conspiracy to illegally influence the operations of an employee-benefit plan.
I. BACKGROUND
During the period of the alleged conspiracy, appellant Fernandez was the president of Local 355 of the Hotel and Restaurant Employees Union and a trustee of the Local‘s Culinary Fund; appellant Del Ray was the personnel director of Doral Hotels of Florida (whose employees were represented by Local 355) and was also a principal representative of the employer trustees of the Culinary Fund. Appellant Recarey is the brother of Miguel Recarey (“Miguel“), who was indicted along with the three appellants but fled prior to trial. The Culinary Fund was responsible for obtaining a contract with a health-care provider to attend to the health-care needs of the Local‘s membership.
The government charged that Miguel agreed to pay Fernandez a total of $100,000 for his assistance in retaining a health-care contract between the Culinary Fund and International Medical Centers, Inc. (“IMC“), a health-maintenance organization controlled by Miguel. Miguel also hired Fernandez‘s son, allegedly to prevent Fernandez from disclosing the scheme to the authorities. Recarey was enlisted to assist Miguel make payments to Fernandez. Finally, the government charged that Miguel paid Del Ray $40,000 for his assistance in securing the IMC-Culinary Fund contract.
Documentary evidence showed that Miguel placed Del Ray on the IMC payroll as a marketing representative, paying him approximately $5,000 from November 1980 to July 3, 1981 (July 1, 1981, was the effective date of the IMC-Culinary Fund contract); from July 3, 1981, to April 23, 1982, Del Ray earned the substantially higher salary of $35,000. Del Ray did not disclose to the trustees of the Culinary Fund his employment arrangement with IMC, and told IMC officers to act as if they did not recognize him at the meeting of the Culinary Fund trustees at which IMC made its proposal; Del Ray did however staunchly support IMC‘s bid for the health-care contract in his capacity as a trustee of the Culinary Fund. Del Ray lost his job with IMC a few days after IMC lost the Culinary Fund contract.
The evidence marshalled against Recarey involved his cashing two IMC checks totalling $75,000 to pay Fernandez; Recarey attempted to conceal his involvement in making these payments. Recarey later asked Miguel for an additional $25,000 for Fernandez.
II. ADMISSION OF GRAND-JURY TESTIMONY
The government‘s case against Fernandez and Recarey was materially enhanced by the grand-jury testimony of Manuel Espinosa, a witness who had served as chief of security for IMC and had also been a close associate of Miguel. Espinosa died of natural causes five months after testifying before the federal grand jury that indicted appellants, but the district court ruled his grand-jury testimony admissible under the residual exception to the hearsay rule,
A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness [is not excluded by the hearsay rule] if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.
The rule thus requires that statements admitted under its authority have “circumstantial guarantees of trustworthiness” equivalent to cross-examined former testimony, statements under a belief of impending death, statements against interest, and statements of personal or family history. These categories of information have attributes of trustworthiness not possessed by the general run of hearsay statements that tip the balance in favor of introducing the information if the declarant is unavailable to testify. See 4 J. Weinstein and M. Berger, Weinstein‘s Evidence ¶ 804(a)[01] at 804-35 (extra-judicial statement falling within a Rule 804(b) category is preferable to losing all evidence from that source).
Thus, admissible former testimony possesses a high degree of reliability because “both oath and opportunity to cross-examine were present in fact.”
The oath taken by the declarant is the only attribute possessed by grand-jury
Appellants argue that as a textual matter, grand-jury testimony is never admissible under the residual exception to the hearsay rule.
Testimony given as a witness at another hearing of the same or a different proceeding [is not excluded by the hearsay rule] if the party against whom the testimony is now offered ... had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
As grand-jury testimony is given by “a witness at another hearing of the same or a different proceeding” (
We decline to rally behind appellants’ call for a per se ban on the admission of grand-jury testimony under the residual exception.1 If a statement does not satisfy all of the requirements of
In contrast to several federal appellate courts, our court has never admitted any grand-jury testimony under the authority of
Thevis, 665 F.2d 616 (5th Cir. Unit B),3 cert. denied, 456 U.S. 1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303, cert. denied, 458 U.S. 1109, 102 S.Ct. 3489, 73 L.Ed.2d 1370, cert. denied, 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61 (1982), we noted that:
Congress intended evidence to be admitted under 804(b)(5) only if the reliability of the evidence equals or exceeds that of the other exceptions in Rule 804(b).... The Senate Judiciary Committee‘s report on the Federal Rules of Evidence stated that the 804(b)(5) residual exception was to be used only rarely, in truly exceptional circumstances. Corroborated grand jury testimony which for one reason or another is unavailable at trial is neither rare nor exceptional, and in our opinion its general admission under this theory would constitute a “major revision” of the hearsay rule that, as the Senate Judiciary Committee admonished, is for the legislature, not the judiciary. Grand jury testimony, although given under oath, is not subjected to the vigorous truth testing of cross-examination, as is prior testimony. Grand jury testimony, moreover, is often given under a grant of immunity which might encourage a witness to “embellish” his story.
665 F.2d at 629 (footnote omitted; emphasis in original).
Likewise, in United States v. Gonzalez, 559 F.2d 1271 (5th Cir.1977),4 we held that the grand-jury testimony of an unavailable declarant was not admissible pursuant to
Although our review of the law of
Apart from the fact that Espinosa testified under a grant of immunity and responded to pregnant questions put by the United States attorney—which as an initial matter suggests that his testimony is no more trustworthy than ordinary inadmissible grand-jury testimony—Espinosa himself was an almost comically unreliable character. A few illustrations culled from the many proffered by appellants will suffice. Espinosa informed the FBI agent working on the IMC case that he had been employed at various times by the CIA, the KGB, the Cuban and Israeli intelligence services; he boasted of his acquaintance with several heads of state. He admitted to making under oath and to a government official a series of false statements regarding a drug investigation. He falsely told the grand jury that he had not been granted immunity for his appearance; he told the grand jury that IMC had financed the movies “Raiders of the Lost Ark” and “Star Wars.” Several libel suits were pending against him at the time of his grand-jury appearance. Moreover, Espinosa admitted to being under the influence of an extensive list of medications during his grand-jury appearance, and he conceded having difficulty recollecting the conversation he was testifying about, which had occurred several years earlier.
The government proposes the nice distinction between the truthfulness of an isolated statement and the over-all credibility of a particular witness. See United States v. Layton, 720 F.2d 548, 562 (9th Cir.1983) (confrontation-clause analysis of statements made by deceased declarant, the Rev. Jim Jones: “Merely because a person is somewhat irrational, or highly agitated, does not mean that he cannot relate events that have occurred recently or have personal knowledge of events about to take place.“), cert. denied, 465 U.S. 1069, 104 S.Ct. 1423, 79 L.Ed.2d 748 (1984). A distinction exists, but the government cannot seriously argue that the trust due an isolated statement should not be colored by compelling evidence of the lack of credibility of its source: although a checkout-aisle tabloid might contain unvarnished Truth, even a devotee would do well to view its claims with a measure of skepticism. See Dallas County v. Commercial Union Assurance Co., 286 F.2d 388, 397 (5th Cir.1961) (Wisdom, J.) (recognizing that source of information influences conclusion about information‘s reliability: small-town newspaper in 1901 would not likely have reported a courthouse fire if in fact there had been no fire).
Second, corroborating evidence and circumstances, while extant, do not persuade us that the testimony was admissible. We noted in Thevis that corroborated grand jury testimony “is neither rare nor exceptional,” 665 F.2d at 629; accordingly, to tip the balance in favor of admissibility, corroborating evidence must be extraordinarily strong. There is nothing unusually compelling about the corroborating evidence marshalled by the government and relied upon by the district court, which is summarized in the margin.5
Third, Espinosa‘s testimony contained many instances of hearsay within hearsay; piled on top of the particular weaknesses of grand-jury testimony, therefore, are the other problems that led the common-law courts to develop the rule excluding hearsay testimony. Although the government has argued that each individual piece of double or triple hearsay would come in under one of the standard exceptions, see
We reject the government‘s argument that these factors go solely to the weight the jury should assign to Espinosa‘s testimony as opposed to the threshold legal question of admissibility. Because these factors speak persuasively to the question of the trustworthiness of the particular grand-jury testimony, they are matters to be considered initially by the district court when deciding admissibility under
The admission of Espinosa‘s grand-jury testimony thus constituted reversible error. The government concedes that such error was not harmless as to Fernandez; as to Recarey, we find that the error “had substantial and injurious ... influence in determining the jury‘s verdict.” Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946). Recarey was prejudiced by this evidence because the government‘s case against him centered around a $75,000 payment he received from IMC. The government elicited testimony from Espinosa that Fernandez had been paid $75,000; at closing, the government sought to link the two payments. As both Fernandez and Recarey were prejudiced by the introduction of Espinosa‘s testimony, we must reverse both convictions and remand for a joint trial.6
Del Ray too argues that he was prejudiced by the introduction of Espinosa‘s testimony; the government responds that any error was harmless beyond a reasonable doubt because Espinosa‘s testimony did not mention Del Ray, and asserts that Del Ray‘s conviction was premised upon “wholly independent evidence.” We will consider the implications of this assertion before deciding whether to reverse the case against Del Ray.
III. TWO CONSPIRACIES
Del Ray argues that the government‘s proof established two conspiracies instead of the single conspiracy charged in the indictment. Thus, instead of a Miguel-Recarey-Fernandez-Del Ray conspiracy, Del Ray claims that the evidence showed a Miguel-Recarey-Fernandez conspiracy and a Miguel-Del Ray conspiracy. Del Ray argues that the trial judge should have severed his case from the case against Recarey and Fernandez. Initially, we note that Del Ray‘s claim on appeal is framed in terms of both Rule 8(b) and Rule 14 of the
We recently concluded, “[a]fter carefully reviewing the great body of case law on this issue,” that “Rule 8(b) is a pleading rule and joinder under Rule 8(b) is to be determined before trial by examining the allegations contained in the indictment.” United States v. Morales, 868 F.2d 1562, 1567 (11th Cir.1989). Under Rule 8(b), Del Ray‘s claim probably would be meritless. Count one of the indictment under scrutiny alleged a single conspiracy between Del Ray, Miguel, Recarey and Fernandez. For an overt act in furtherance of that conspiracy, the indictment alleged a meeting at Miguel‘s house attended by all four defendants. These allegations, charging that all four defendants engaged in the same overt act, were likely sufficient to comply with the requirements of Rule 8(b).
A misjoinder or prejudicial joinder claim based on evidence adduced at trial, like the claim Del Ray raises, falls under Rule 14 of the
A. Sufficiency of the evidence to prove a single conspiracy
The government sought to prove a “wheel” conspiracy, with Miguel the hub from which two spokes extended. See United States v. Nettles, 570 F.2d 547, 551
For a wheel conspiracy to exist those people who form the wheel‘s spokes must have been aware of each other and must do something in furtherance of some single, illegal enterprise. Blumenthal v. United States, 332 U.S. 539, 556-57, 68 S.Ct. 248, 256-57, 92 L.Ed. 154 (1947). Otherwise the conspiracy lacks “the rim of the wheel to enclose the spokes.” Kotteakos v. United States, 328 U.S. 750, 755, 66 S.Ct. 1239, 1243, 90 L.Ed. 1557 (1946). If there is not some interaction between those conspirators who form the spokes of the wheel as to at least one common illegal object, the “wheel” is incomplete, and two conspiracies rather than one are charged. United States v. Levine, 546 F.2d 658, 663 (5th Cir.1977). If there is one conspiracy, then there must be evidence to show that Del Ray and the Fernandez-Recarey spoke engaged in some interaction concerning a common illegal object. At the outset it is crucial to distinguish between the two different objects that thread through this case. The primary object driving all of the indicted activities was a contract between IMC and the Culinary Fund. This object is plainly lawful. The second object concerns the means through which the first object was to be achieved. This second object, to bribe certain of the Culinary Fund trustees, is plainly unlawful. Appellants do not dispute that the government‘s proof showed that Del Ray, Fernandez, Recarey, and Miguel joined together to advance the primary, lawful object. Nor do appellants dispute that the government‘s proof sufficed to show a conspiracy between Fernandez, Recarey and Miguel to effect the unlawful object, and we conclude infra Part IV that the government demonstrated that Miguel and Del Ray actually achieved the unlawful object. What we find lacking is proof that everyone—Del Ray, Fernandez, Recarey, and Miguel—conspired together to advance the unlawful object.
The government advances two theories to establish an overarching conspiracy. First, the government argues that proof that Fernandez and Del Ray both attended a meeting at Miguel‘s home at which the IMC proposal was discussed is sufficient to link the two defendants in a conspiracy. This meeting was the sole overt act with which both Fernandez and Del Ray were charged; Del Ray was charged with no overt act in which Recarey participated. A government witness testified to the meeting, but his testimony fails to suggest that any wrongdoing transpired. Although Fernandez and Del Ray were each trustees of the Culinary Fund, the government has not argued that ex parte contracts between potential health-care contractors and Culinary Fund representatives are somehow suspect so that Del Ray should have realized that Fernandez‘s presence signalled complicity in a clandestine enterprise.
Accordingly, the evidence of the meeting at Miguel‘s home shows a discussion susceptible of either an illegal or legal interpretation, and as such cannot be used to establish a conspiracy. United States v. Wieschenberg, 604 F.2d 326, 335-36 (5th Cir.1979). Nothing at all shows that the meeting aided the unlawful object—the plan to bribe certain of the trustees; at most, the meeting was useful in advancing the primary object—an IMC-Culinary Fund health-care contract.9 Cf. United States v. Hajecate, 683 F.2d 894, 896 (5th Cir.1982) (transactions not illegal in themselves lose their legal character if used to bring about an unlawful object), cert. denied, 461 U.S. 927, 103 S.Ct. 2086, 77 L.Ed.2d 298 (1983).
Similarly, the government does not raise the inference of conspiracy indirectly merely by showing that Del Ray was aware of the need for other trustees to support IMC‘s effort to secure the contract. Even if a jury could conclude that Del Ray knew that others would work to secure an IMC-Culinary Fund contract, the government still must show that Del Ray knew that others would employ unlawful means. United States v. Marable, 574 F.2d 224, 229 (5th Cir.1978) (defendant must have knowledge of the existence of a conspiracy, and with that knowledge do something to further it). The government has not argued, for example, that any evidence showed Del Ray knew of the sums paid to Fernandez; like as not Del Ray was unaware that another party was on the take.
The government could have proven the conspiratorial agreement by showing that Fernandez and Del Ray had knowledge that another Culinary Fund trustee was accepting illegal bribes for the purpose of inducing the contract. See Rapp, 871 F.2d at 964-65 (evidence showed that defendants had knowledge of illegal object of conspiracy that may also have had a lawful object); cf. United States v. Diecidue, 603 F.2d 535, 556 (5th Cir.1979) (RICO prosecution; “Without evidence that [the defendant] knew something about his co-defendants’ related activities which made the enterprise, he could not be convicted of conspiring to engage in a pattern of racketeering as defined by the statute.“), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781, cert. denied, 446 U.S. 912, 100 S.Ct. 1842, 64 L.Ed.2d 266 (1980). If the government had shown, for example, that Del Ray knew some other trustee was to be bribed to vote in favor of the contract with IMC,10 the government would not be obliged to prove that Del Ray knew that the other person was Fernandez in order to prosecute Del Ray for conspiring with Fernandez and Recarey. E.g., United States v. James, 528 F.2d 999, 1011 (5th Cir.), cert. denied, 429 U.S. 959, 97 S.Ct. 382, 50 L.Ed.2d 326 (1976). Without such direct evidence the government might have shown that Del Ray knew that the Culinary Fund could be induced to contract with IMC only if some other trustee were bribed. The government does not make this argument, and our review of the record does not convince us that IMC‘s only possible hope to secure the contract
No proof is offered to show that Del Ray engaged in concerted activity with Fernandez and Recarey that “both increase[d] the likelihood that the criminal object [would] be successfully attained and decrease[d] the probability that the individuals involved [would] depart from their path of criminality.” Callanan v. United States, 364 U.S. 587, 593, 81 S.Ct. 321, 325, 5 L.Ed.2d 312 (1961). The salient question becomes whether Del Ray, Miguel, Fernandez and Recarey were nevertheless properly charged in one indictment and tried at the same trial in view of the undeniable similarity of their alleged activities. On this point our decision in United States v. Marionneaux is instructive. 514 F.2d 1244 (5th Cir.1975), cert. denied, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). The indictment in Marionneaux charged two conspiracies in two separate counts; the object of each conspiracy was to interfere with the pending criminal trial of Edward Partin, but “the manner of interference was different in each case and, except for Partin as a common defendant, the conspirators were all different in each count.” 514 F.2d at 1247. In the first conspiracy, the conspirators sought to obstruct justice “by supplying sustenance and transportation” to a subpoenaed witness in order to prevent his appearance before a federal grand jury in Louisiana and to insure his false testimony at Partin‘s criminal trial in a Texas district court. Id. In the second conspiracy, the conspirators sought to persuade a different witness not to testify at Partin‘s criminal trial. We held that the two counts did not constitute “a series of acts or transactions constituting an offense or offenses” for the purposes of Rule 8(b), and were thus improperly joined in the same indictment. Id. at 1249.
The similarities between Marionneaux and this appeal are readily apparent. In each, two conspiracies15 were
Notes
Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.
If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.
B. Prejudice?
Del Ray was improperly joined with Fernandez and Recarey. Because the improper joinder was not apparent until the government had presented its case, however, Del Ray has presented a Rule 14 claim and must therefore meet the burden of demonstrating prejudice under that rule. An appellant‘s showing of prejudice under Rule 14 is normally intertwined with proof that the trial court abused its discretion. In the special circumstances of this case, because of an attorney error that we have forgiven, we have no exercise of discretion to review.17 Our inquiry is thus limited to whether denial of a Rule 14 motion to sever would have constituted an abuse of discretion. Under the unique facts of this case, we conclude that denial of Del Ray‘s Rule 14 motion would not have been within the trial court‘s discretion.
Because of our concern for judicial economy and the related principle that defendants jointly indicted should be so tried, the Rule 14 appellant ordinarily must demonstrate “compelling prejudice” flowing from the denial of his motion to sever. United States v. Varella, 692 F.2d 1352, 1360 (11th Cir.1982), cert. denied, 463 U.S. 1210, 103 S.Ct. 3542, 77 L.Ed.2d 1392, cert. denied, 464 U.S. 838, 104 S.Ct. 127, 78 L.Ed.2d 124 (1983); United States v. Lippner, 676 F.2d 456, 464 (11th Cir.1982); United States v. Perez, 489 F.2d 51, 65 (5th Cir.1973), cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974). To decide whether the appellant has demonstrated “compelling prejudice,” the reviewing court must ask:
Del Ray has shown that joinder, although technically correct, was erroneous because “the charge which originally justified joinder turn[ed] out to lack the support of sufficient evidence” (Schaffer, 362 U.S. at 516, 80 S.Ct. at 948); in United States v. Lane, the defendants were able to show that joinder was legally incorrect. 474 U.S. 438, 443-44, 106 S.Ct. 725, 728-29, 88 L.Ed.2d 814 (1986). The prejudice suffered by a misjoined defendant under either set of facts is not appreciably different and the countervailing concern for judicial economy is similar in both cases; thus, the prejudice test announced in Lane is suited to the facts of this case: “an error involving misjoinder ‘affects substantial rights’ and requires reversal only if the misjoinder results in actual prejudice because it ‘had substantial and injurious effect or influence in determining the jury‘s verdict.‘” 474 U.S. at 449, 106 S.Ct. at 732 (quoting Kotteakos, 328 U.S. at 776, 66 S.Ct. at 1253). In a recent case arising under Rule 8(a) (which governs joinder of claims against a single defendant) we interpreted Lane to call for a “determination of whether there was a reasonable chance the jury might not have convicted” the defendant had the misjoinder not occurred. United States v. Watson, 866 F.2d 381, 385 (11th Cir.1989). Assuming without deciding that the same test applies for claims of misjoined defendants, we see a “reasonable chance” that Del Ray would not have been convicted had he not been tried with Fernandez and Recarey; at the very least, the case against Fernandez and Recarey had a “substantial and injurious effect” on the jury‘s determination of Del Ray‘s guilt.
The Espinosa testimony constituted the most damaging direct evidence of illegality surrounding the Culinary Fund‘s retention of a health-care contract from IMC—this grand-jury hearsay was the flame in the midst of a great deal of smoke. Even though we hold infra Part IV that sufficient evidence was adduced against Del Ray to convict him of bribery under
IV. EVIDENCE AGAINST DEL RAY
Del Ray claims that the government adduced insufficient evidence to convict him of the indicted crimes. Because Del Ray‘s success on this claim would preclude a subsequent trial on grounds of former jeopardy, we must resolve it in spite of our decision to remand the case against him.
The government charged Del Ray with the substantive offense of accepting a bribe and with conspiracy; the gravamen of Del Ray‘s argument is that the government did not produce enough evidence to convict him of bribery. Only this argument do we address.18
In reviewing a jury conviction for sufficiency of the evidence, we consider the evidence admitted at trial “in the light most favorable to the government, accepting all reasonable inferences that support the verdict,’ ... mindful that the evidence need not ‘exclude every reasonable hypothesis of innocence [nor] be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt.‘” United States v. Migueles, 856 F.2d 117, 118 (11th Cir.1988) (quoting United States v. Curra-Barona, 706 F.2d 1089, 1091 (11th Cir.1983), cert. denied, 465 U.S. 1031, 104 S.Ct. 1296, 79 L.Ed.2d 696 (1984) and United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (in banc), aff‘d on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983)).
Del Ray argues that the only evidence tying him to the conspiracy was his presence at the gathering at Miguel‘s house and the happenstance of his employment by IMC. Del Ray acknowledges a conflict of interest and asserts that his conduct can be explained in terms of his desire to conceal the conflict from his employer Doral Hotels. Viewing the evidence in the light most favorable to the government, however, there was sufficient evidence from which the jury could have found Del Ray guilty of the substantive offense of accepting a bribe.19 The jury was within reason in drawing the inference that Del Ray was offered a job as quid pro quo for his assistance to IMC.20
V. CONCLUSION
We REVERSE the conviction of each appellant and REMAND with instructions to sever the case against Del Ray from the case against Recarey and Fernandez in order to permit the government to retry Recarey, Fernandez and Del Ray in accordance with our opinion.
HATCHETT, Circuit Judge,
concurring in part and dissenting in part:
I concur in part and dissent in part with the majority‘s decision. I agree with the majority that the admission of Espinosa‘s grand jury testimony constitutes reversible error, and therefore, would reverse the conspiracy convictions against Fernandez, Recarey, and Del Ray. Furthermore, I concur in the majority‘s decision to affirm Del Ray‘s conviction for illegally influencing the operation of an employee-benefit plan. I dissent, however, from the majority‘s decision to sever Del Ray‘s conspiracy trial from the conspiracy trial against Fernandez and Recarey.
While I concede that the government must present evidence to demonstrate that Del Ray and Fernandez interacted concerning a common illegal object, I disagree with the majority‘s conclusion that the government did not present sufficient evidence of such interaction; viewing the evidence most favorably toward the government, the jury could reasonably conclude that Fernandez, Del Ray, Recarey, and Miguel participated in a single conspiracy. See Levine, 546 F.2d at 663.
The government demonstrated that Miguel, Fernandez, Del Ray and Recarey privately met prior to IMC obtaining the contract, and that after this meeting Miguel made payments to Fernandez and Del Ray. The jury could rely on the meeting between Fernandez, Del Ray, Recarey and Miguel to find the requisite connection between Fernandez and Del Ray, notwithstanding the former Fifth Circuit‘s decision in Wieschenberg. In Wieschenberg, the court held that the government cannot use “mere discussions susceptible of either an illegal or a legal interpretation” to establish a conspiracy. Wieschenberg, 604 F.2d at 335. The Wieschenberg court, however, expressly limited its holding to cases where the alleged conspirators were “involved in both legal and illegal activities.” Wieschenberg, 604 F.2d at 335 n. 8. Contrary to the majority‘s conclusion, nothing in the evidence demonstrates that Miguel, Fernandez, Recarey and Del Ray were involved in a legal activity i.e., pursuing legal means to obtain the contract for IMC. Moreover, unlike Wieschenberg, no evidence dispels the plausibility of the jury‘s inference that the meeting concerned the subsequent bribes. Rather, the evidence supports the inference of unlawful activity at this meeting because the government presented evidence of subsequent payments from Miguel to Fernandez and Del Ray.
Therefore, I would affirm denial of Del Ray‘s severance motion because the government properly tried the appellants as a single conspiracy. I would accordingly order the retrial of the appellants on the conspiracy count in a single trial without the introduction of Espinosa‘s grand jury testimony.
An agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission.1 Anderson, Wharton‘s Criminal Law and Procedure § 89 (1957), quoted in United States v. Revel, 493 F.2d 1, 1-2 (5th Cir.1974), cert. denied, 421 U.S. 909, 95 S.Ct. 1559, 43 L.Ed.2d 774 (1975). Del Ray does not argue the applicability of Wharton‘s Rule, and as we remand the case for retrial, we think it proper that the district judge consider the issue first should the government continue to proceed against Del Ray on a conspiracy theory.