APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Rya W. Zobel, U.S. District Judge.
Amy M. Belger for appellant Dzhanikyan.
Derege B. Demissie, with whom Demissie and Church was on brief, for appellant Martinez.
Kelly Begg Lawrence, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
Before Barron, Selya, and Lipez, Circuit Judges.
BARRON, Circuit Judge.
In these consolidated criminal appeals, Karapet Dzhanikyan and Ronald Martinez raise a number of challenges to their convictions, including some that concern the District Court's decision to try the two men together. For the reasons set forth below, we affirm each of the convictions except for Martinez's conviction for conspiring to use extortionate means to collect an extension of credit in violation of 18 U.S.C. § 894(a).
The initial indictment charging Dzhanikyan and Martinez was handed down in 2011 and arose out of a year-long wiretap investigation of a suspected drug trafficker named Safwan Madarati. A superseding indictment, containing eleven total counts and naming fifteen defendants, was handed down in 2012.
Five counts of the superseding indictment named Dzhanikyan or Martinez. Dzhanikyan was charged with one count of conspiring with Madarati and others to distribute oxycodone, in violation of 21 U.S.C. § 846 (Count 1). Martinez was charged with two counts of conspiring with Madarati and others to attempt to collect a debt through extortionate means, in violation of 18 U.S.C. § 894(a) (Counts 2 and 3), and two counts of possessing crack cocaine with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) (Counts 10 and 11).
Before trial, Martinez moved to be tried separately from all of his co-defendants, including Dzhanikyan. Martinez also moved to be tried separately on each of the four counts he faced. In January of 2013, the District Court denied Martinez's motions for severance. Dzhanikyan made no pre-trial severance motion.
By the time the trial began on June 3, 2013, all of the co-defendants of Dzhanikyan and Martinez had pleaded guilty. The trial thus proceeded with only Dzhanikyan and Martinez as defendants.
After the presentation of the evidence at trial, Martinez moved under Federal Rule of Criminal Procedure 29(a) for acquittal on all the counts for which he had been charged. The District Court granted Martinez's motion as to the first of the two counts that had charged him with using extortionate means to collect an extension of credit (Count 2). That extortion count charged Martinez with conspiring to use extortionate means to collect an extension of credit by Madarati to a jewelry store owner. The alleged extortionate means involved shooting the store's windows and resulted in injuries to several people.
The District Court denied Martinez's motion as to the remaining counts against him, including as to the second extortion count (Count 3). That extortion count charged Martinez with conspiring to use extortionate means to collect a separate extension of credit by Madarati. The alleged extortionate means involved an attempted break-in of the house of the purported debtor.
Following the District Court's ruling on the Rule 29(a) motion, jury deliberations began. In the midst of the deliberations, the jury submitted two questions to the District Court. One of those questions is at issue in these appeals: " Can we use all the evidence presented during the trial as we evaluate each individual charge?" The District Court proposed to answer that question by saying simply, " Yes."
Martinez's counsel raised a concern about the proposed answer. She requested that the District Court make clear that the jury could not rely on evidence from Martinez's by-then dismissed, jewelry-store extortion count in considering (at least) the remaining extortion count against Martinez. Martinez's counsel did not actually propose such an instruction, however. Martinez's counsel explained that she would need some time to come up with the right wording. The District Court made clear that in its view there was no need for any limiting instruction. Dzhanikyan raised no objection to the District Court's proposed answer to the jury's question.
The District Court called the jurors back into the courtroom and told them that the answer to their question was, " Yes." After addressing the jury's other question, the District Court asked the jury: " And you understand the use of all of the evidence with respect to each charge as it applies to that charge?" The jury responded by " nodding."
The jury returned guilty verdicts against Dzhanikyan and Martinez on all four remaining counts. Following the verdicts, the defendants moved for both a judgment of acquittal under Federal Rule of Criminal Procedure 29(a) and a new trial under Federal Rule of Criminal Procedure 33. The motion for a new trial contended that the District Court's " Yes" response to the jury's question resulted in
" evidentiary spillover," a " variance," and " retroactive misjoinder." The District Court denied the defendants' Rule 29(a) motions and their joint motion for a new trial.
In considering the defendants' challenges on appeal, we start with their individual challenges to the District Court's initial decision to try them together and to the District Court's denial of their joint motion for new trial. We then consider Martinez's separate challenges to his extortion conviction on Count 3.
" [A] trial judge has 'considerable latitude' in deciding severance questions," and thus, even when a challenge to a decision to try a defendant jointly has been properly preserved, " the judge's resolution of [those questions] 'will be overturned only if that wide discretion is plainly abused.'" United States v. O'Bryant, 998 F.2d 21, 25 (1st Cir. 1993) (quoting United States v. Natanel, 938 F.2d 302, 308 (1st Cir. 1991)). An abuse of discretion in declining to sever a trial may be found, however, if a defendant " who seeks a separate trial can . . . mak[e] a strong showing of evident prejudice." Id. And that strong showing may be made " if there is a serious risk that a joint trial would . . . prevent the jury from making a reliable judgment about guilt or innocence." Id. (quoting Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993)). With that background in place, we now turn to the challenges the defendants bring -- both individually and jointly -- to the decision to try them together.
Dzhanikyan contends that there was a serious risk here that, in consequence of the joint trial, the jury would not be able to render a reliable verdict because the evidence the government intended to put forth about Martinez's involvement in the two alleged extortion schemes was " highly inflammatory and prejudicial."  Dzhanikyan did not raise this challenge below, however, and so his challenge, if not waived, is subject to review only for plain error. See United States v. Magana, 127 F.3d 1, 7 (1st Cir. 1997) (reviewing unpreserved misjoinder claim for plain error).
To satisfy the demanding plain-error standard, Dzhanikyan must show that " (1) an error occurred, (2) the error was obvious, (3) the error affected substantial rights, and (4) the error seriously impaired the fairness, integrity, or public reputation of judicial proceedings." United States v. Lanza-Vá zquez, 799 F.3d 134, 145 (1st Cir. 2015) (citation and internal quotation marks omitted). But he cannot make that showing.
It is not obvious that the government's evidence about Martinez's use of extortionate means to ...