Petition for Writ of Certiorari — LaChance v. United States

. Supreme Gourt, U.S,

28 * RILED

sep 1a wer

F HOSERHE-SPANIOL, JR,

) CLERK

IN THE —_

Supreme Court of the United States

October Term, 1987

87

st

No.

JOSEPH LEE LACHANCE

Petitioner,

v.

UNITED STATES OF AMERICA

Respondent.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

BENNIE LAZZARA, JR., ESQUIRE

BENNIE LAZZARA, JR., P.A.

606 Madison, Suite 2001

Tampa, Florida 33602

Phone: 813-229-2224

JOSEPH H. FICARROTTA, ESQUIRE

600 Madison Street

Tampa, Florida 33602

Phone: 813-223-9788

Counsel for the Petitioner

i

QUESTIONS PRESENTED FOR REVIEW

I. WHETHER THE COURT OF APPEALS FERRED IN FAILING

TO ORDER JOSEPH LEE LACHANCE’S CONVICTION IN THE

TRIAL COURT WHEREIN THE TRIAL FAILED TO GRANT

MR. LACHANCE A NEW AND SEPARATE TRIAL WHEN THE

TRIAL JUDGE AND COUNSEL FOR A CO-DEFENDANT

MADE COMMENTS CALLING THE ATTENTION OF THE

JURY TO HIS FAILURE TO TESTIFY, AND WHEN A CO-DE-

FENDANT MADE AN OUTRAGEOUS PREJUDICIAL AND

IMPROPER CLOSING ARGUMENT.

Il. WHETHER THE COURT OF APPEALS ERRED IN FAILING

TO REVERSE JOSEPH LEE LACHANCE’S CONVICTION IN

THE TRIAL COURT WHEREIN THE TRIAL COURT IMPROP-

ERLY ALLOWED TESTIMONY ON SEVERAL OCCASIONS

THAT MR. LACHANCE HAD MADE CERTAIN HIGHLY IN-

FLAMMATORY REMARKS WHOSE PROBATIVE VALUE WAS

SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UN-

FAIR PREJUDICE.

ll

TABLE OF CONTENTS

Page

Gane F ORIUIERD. 665. si ev okwtedeus ed deeee caus i

re OE sien ck oN Ss be bee 1

SS AOE oo 60 Fh essa k ie des baleen eee eas 2

CONSTITUTIONAL PROVISION INVOLVED........... 2

Sincere: CW Fees Ge: | Shas ek yas ds cin 3

REASONS FOR GRANTING THE WRIT............... 7

I. Whether the Court of Appeals erred in failing to

reverse Joseph Lee LaChance’s conviction in the Trial

Court wherein the Trial Court failed to grant Mr. La-

Chance a new and separate trial when the Trial Judge

and counsel for a Co-defendant made comments calling

the attention of the jury to his failure to testify, and

when a Co-defendant made an outrageous, prejudice

and improper closing argument.

II]. Whether the Court of Appeal erred in failing to

reverse Joseph Lee LeChance’s conviction in the Trial

Court wherein the Trial Court improperly allowed tes-

timony on several occasions that Mr. LaChance had

made certain highly inflammatory remarks whose pro-

bative value was substantiall outweighed by the danger

of unfair prejudice.

ARIE bs sav asa icehavaategenunpek coum 16

ek wT Pe of Se re te ee 17

APPENDIX

A. tae Sarat Ce ss kin ioe ee oe A-1

B. Order Denying Petition for Rehearing........... B-1

ili

TABLE OF AUTHORITIES

Page

Cases

Bruno v. United States,

DS eka s bese eb edeseed ae 10

Carter v. Kentucky,

Ee i]

Deluna v. United States,

SS | ee 9, 10

Griffin v. California,

I a 9

United States v. Aguiar,

EE 9, 10

United States v. Brown,

EE SE a | 10

United States v. Edwards,

| 10

United States v. Forrest,

EE rr 10

United States v. Frick,

Es ) 14

United States v. Harbin,

SE 10

United States v. Harp,

See ee pee, wee toes Cav. 1975)... .. 2... cess 10

United States v. Hearod,

499 F.2d 1003, 1004 (5th Cir. 1974)................. 14

United States v. Herrera,

CO ) 12

United States v. Kaplan,

576 F.2d 598, 600 (Sth Cir. 1978)................... 10

United States v. Lamerson,

BD Sy | 12

United States v. McRae,

OE | 14

United States v. Morris,

| rr 12

United States v. Risi,

SS 12

United States v. Spletzer,

I I OO PUN ee eee se eees 14

iv

CONSTITUTIONAL PROVISIONS

Sn I ee ee ng AE 2

Fifth Amendment, United States Constitution............ 2

Sixth Amendment, United States Constitution............ 2

STATUTES

| er 2

RULES

vee cad peas bho awhes 2

Federal Rules of Criminal Evidence Rule 403............. 14

IN THE

Supreme Court of the United States

October Term, 1987

No.

JOSEPH LEE LACHANCE

Petitioner,

v.

UNITED STATES OF AMERICA

Respondent.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

OPINION BELOW

The Opinion of the Circuit Court of Appeals for the Eleventh

Circuit is not yet officially reported. A copy of the Court’s Opinion

appears in the Appendix herein (A-1).

LT LS TT EE aR ee

to

JURISDICTION

The Judgment of the Court of Appeals tor the Eleventh Cir-

cuit was entered on June 1, 1987, affirming the Petitioner's con-

viction herein. A timely request for Petition for Panel Rehearing

was filed. The Court of Appeals entered its Order denying the

Petition for Panel Rehearing on July 15, 1987 (Appendix B-1).

This petition is filed withiin sixty days of that decision and is

timely filed. The jurisdiction of the Court is invoked pursuant

to 28 U.S.C., Section 1254(1) and Supreme Court Rule 21.

CONSTITUTIONAL PROVISION INVOLVED

The fundamental right to a fair trial in the United States is

implicit in Article III, Section 2(3) of the United States Constitu-

tion, and the Fifth and Sixth Amendments to the United States

Constitution.

3

STATEMENT OF THE CASE AND FACTS

Mr. Joseph Lee LaChance was indicated along with seventeen

(17) Co-defendents in a thirteen-count Indictment. The Indictment

was centered around the criminal activities of one Co-defendent,

Albert Samuel Fortna. Fortna was charged with conducting a Con-

tinuing Criminal Enterprise to import and possess with intent to

distribute cocaine and marijuana.

Mr. LaChance was charged in only one court, Count II, of

the thriteen-count Indictment. Count II charges Mr. LaChance

with a conspiracy to import marijuana into the United States. No

substantive offense was charged against Mr. LaChance and he

was not charged with any cocaine violations.

The Co-defendent Fortna, the central defendent in the case,

and three other Co-defendents were tried jointly with Mr. La-

Chance. The trial commenced on November 18, 1985 with jury

selection. During opening statement, the Government concentrated

their argument upon the various charges against and the extensive

criminal activities of Fortna. The testimony commenced on No-

vember 20, 1985. The Government began their presentation of

proof by presenting a great amount of testimony and other evi-

dence concerning criminal activities of Fortna regarding cocaine

and marijuana smuggling and possession with intent to distribute

from May 1980 until June 13, 1985.

The overwhelming portion of this evidence had nothing

whatsoever to do with the Count II charge against Mr. LaChance

of conspiracy to import marijuana from July 1981 to September,

1982. Approximately half way through the trial, counsel for Fortna

became ill and Fortna was served as a defendent in the trial (R.

582).

Prior to trial by written motion (R. 309), and throughout

4

the trial, Mr. LaChance repeatedly sought a severance from the

other Co-defendents. Mr. LaChance also -epeatedly asked for a

mistrial due to the multitude of prejudicial evidence introduced

at his trial.

As a result of being tried jointly with the other Co-defendents,

Mr. LaChance was subjected to a great deal of improperly preju-

dicial statements during argument, evidence and testimony.

Specifically, Mr. LaChance moved for a severance for the fol-

lowing reasons.

Prejudicial statements were made during the closing argu-

ments phase of the trial by the Trial Judge and counsel for a Co-de-

fendant in derogation of Mr. LaChance’s Fifth Amendment right

to silence. The Trial Judge’s pronouncement and the argument by

the attorney for the Co-defendant improperly called to the jury’s

attention the fact that Mr. LaChance chose not to testify at trial.

The statements which substantially abridged Mr. LaChance’s

right to remain silent included an instruction by the Trial Judge

during Co-defendant Bowles closing argument that the Co-de-

fendant Bowles had the opportunity but chose not to testify under

oath where he would have been cross-examined by the prosecutor

(R. 1593). During the trial, Bowles fired his lawyer and presented

his own closing. There was also statements by the Co-defendant

Cepeda’s attorney on closing argument that a defendant “better

be clean” when they take the stand because if they're not, the Gov-

ernment will have a defendant on their hand (R. 1658).

Mr. LaChance chose not to testify at his trial. The Co-de-

fendant Cepeda did take the stand and testify.

Co-defendant Bowles, in delivering his own summation,

repeatedly bolstered and vouched for the truthfulness and cred-

5

ibility of the key Government witness Frank Kelly (R. 1595-1597).

Furthermore, on various occasions during his final argument,

Bowles used inappropriate, inflammatory, improper and outra-

geous language (R. 1592-1593; R. 1598; R. 1604).

In presenting its case against the Co-defendants, the Gov-

ernment introduced a great amount of evidence to prove the crimes

against the Co-defendants. This evidence did not pertain to Mr.

LaChance.

The evidentiary presentation by the Government to prove

the Continuing Criminal Enterprise and the other eleven counts

of the Indictment not charging Mr. LaChance encompassed most

of the trial. On many occasions counsel for Mr. LaChance re-

quested a severance and a mistrial because of the improper prej-

udice created by the evidence introduced which in no way per-

tained to him (R. 404; R. 415-417; R. 463; R. 495; R. 511; R. 711-12;

R. 1134; R. 1209). This unrelated testimony concerned not only

conspiracies but also actual completed importations and posses-

sions of cocaine and marijuana and threats of violence on the part

of Co-defendants.

In addition, during opening statement (R. 171) and in their

evidentiary presentation (R. 415; R. 464; R. 495), the Government

interjected the activities of the Fortna organization in crimes not

charged in the Indictment. Evidence was introduced involving un-

charged conspiracies to import quaaludes and cocaine. Testimony

was solicited concerning Uzi-type weapons to show the ability

of the Co-defendants to do what they were charged with doing.

Again, Mr. LaChance was not named as being involved with these

uncharged events.

On direct examination by the Government and cross-exami-

nation by a Co-defendant, testimony was introduced that Mr. La-

6

Chance stated he was going to blow away or kill a Columbian

(R. 661-664; R. 811).

At the conclusion of the three-week trial, Mr. LaChance was

found guilty of Count II of the Indictment (R. 1709).

On January 16, 1986, Mr. LaChance was sentenced to five

(S) years in federal prison and fined $15,000.00 (R. 536).

On January 16, 1986, Mr. LaChance filed a timely Notice

of Appeal of his conviction with the United States Court of Ap-

peals for the Eleventh Circuit (R. 542).

On June 1, 1987, the United States Court of Appeals for the

Eleventh Circuit affirmed Mr. LaChance’s conviction in a ten (10)

page written opinion (See Appendix A).

On June 18, 1987, Mr. LaChance filed a timely Petition for

Panel Rehearing of his affirmed conviction with the United States

Court of Appeals for the Eleventh Circuit. This petition was denied

by the Eleventh Circuit on July 15, 1987 (See Appendix B).

7

REASONS FOR GRANTING THE WRIT

I. Whether the Court of Appeals erred in failing to reverse

Joseph Lee LaChance’s conviction in the Trial Court wherein

the trial court failed to grant Mr. LaChance a new and sepa-

rate trial when the Trial Judge and counsel for a Co-defendant

made comments calling the attention of the jury to his failure

to testify, and when a Co-defendant made an outrageous,

prejudicial and improper closing argument.

Mr. Joseph Lee LaChance was denied his constitutionally gua-

ranteed right to a fair trial as a result of being tried jointly with

four other Co-defendants in a broad, sweeping thirteen-count In-

dictment predicated on the alleged criminal activities of one in-

dividual, Albert Samuel Fortna.

Mr. LaChance repeatedly asked the Trial Judge for a severance

from the other Co-Defendants in an effort to avoid the compelling

prejudice inherent in this joint trial. The Trial Judge, however,

repeatedly refused to grant Mr. LaChance a severance from the

other Co-defendants.

Mr. LaChance was charged only in Count II with a conspiracy

to import marijuana.

Specifiaclly, Mr. LaChance should have been granted a sev-

erance as a result of the following:

1. Prejudicial comments made during closing arguments by

the Trial Judge and counsel for another Co-defendant which im-

properly brought to the jury’s attention the fact that Mr. LaChance

chose not to testify in derogation of Mr. LaChance’s Fifth Amend-

ment Right to Remain Silent.

2. Co-defendant Bowles, in delivering his own closing argu-

8

ment, improperly bolstered and vouched for the truthfulness and

credibility of key government witness Frank Kelly.

3. In delivering his closing argument, Co-defendant Bowles

used highly inflammatory, prejudicial and outrageous language

which inevitably damaged Mr. LaChance by rousing the juror’s

emotions against Mr. LaChance and and of the Co-defendants.

In addition, the government introduced evidence of the ex-

tensive criminal activities of Fortna and the other Co-defendants.

This evidence naturally and inevitably spilled over onto and prej-

udiced Mr. LaChance, thereby thoroughly denying him the right

to be judged by his own actions instead of the cumulative actions .

of all of the Co-defendants.

Moreover, the government introduced evidence at trial which

pertained to criminal activity of Co-defendants not charged in

the Indictment and not involving Mr. LaChance.

The totality of these circumstances created a welter of con-

fusion and prejudice which made it impossible for the jury to com-

partmentalize the evidence adduced at trial individually with re-

spect to each Co-defendant.

By granting Mr. LaChance’s motion for severance from the

other Co-defendants, the plethora of compellingly prejudicial error

that permeated Mr. LaChance’s trial could have been easily

avoided.

Prejudicial Comments Bringing Attention to LaChance’s

Failure to Take the Stand

On two separate occasions at trial, statements were made

which focused the jury’s attention to the fact that Mr. LaChance

9

exercised his constitutional right not to testify. These statements

constituted reversible constitutional error in that the statements

substantially abridged his right to silence, see Griffin v. California,

380 U.S. 609 (1965); DeLuna v. United States, 308 F.2d 140 (Sth

Cir. 1962).

First, when the Trial Judge instructed the jury onthe fact that

pro-se Co-defendant Bowles was going to give his own closing

argument without benefit of counsel, the Trial Judge improperly

stated:

“Now I'll tell you that he (Co-defendant Bowles) had an op-

portunity to testify under oath were he could have been cross-

examined by the prosecution. He chose not to do that, and,

therefore, anything he says is not evidence in this case.” (Em-

phasis provided) (R. 1593).

Second, counsel for Co-defendant Cepeda in his closing ar-

gument to the jury stated:

“Now she takes the stand on her own defense, ... and I don't

mind telling you, you had better be clean up there when you

take that stand because if you're not, (United States Attorney)

Mr. Kennedy will have her in his hand.” (Emphasis provided)

(R. 1657, 1658).

The United States Constitution guarantees that no negative

or adverse inferences can be drawn from a failure to testify since

the threat of that inference might wrongfully compel an accused

to testify. See Carter v. Kentucky, 450 U.S. 288, 305 (1981); Griffin

v. California, 380 U.S. 609, 85 S.Ct. 1229 (1965).

Thus, convictions should be overturned where a comment

on a defendant's exercise of his right to remain silent impairs the

integrity of that Fifth Amendment right. See e.g., United States

10

v. Aguiar, 610 F.2d 1296 (Sth Cir. 1980); United States v. Edwards,

576 F.2d 1152 (Sth Cir. 1978); DeLuna v. United States, 308 F.2d

at 154 (Sth Cir. 1962). For these reasons, it is a rare and exceptional

case where comment on silence is permissible (See United States

v. Harp, $13 F.2d 786, 790 (Sth Cir. 1975).

Moreover, it is the references themselves that undermine a

defendant's Fifth Amendment right to silence, and comments that

undermine a defendant's right to silence can vitiate a conviction.

It makes no difference whatsoever that the comments were made

by persons other than the prosecutor, e.g., United States v. Aguiar,

supra; United States v. Kaplan, 576 F.2d 598, 600 (Sth Cir. 1978),

or that the comments were indirect, United States v. Aguiar, supra;

United States v. Brown, 546 F.2d 166, 173 (Sth Cir. 1977): and

United States v. Forrest, 620 F.2d 446 (Sth Cir. 1980).

As such, oblique comments on a defendant's failure to testify,

if sufficiently suggestive, are as unlawful as direct comments (em-

phasis provided). United States v. Browr:, supra; United States

v. Harbin, 601 F.2d 773 (5th Cir. 1979).

the key factor, therefore, in determining whether the Fifth

Amendment rights of a defendant are violated when there is a

comment at trial inferring to the defendant's failure to testify, is

what effect the comment had on the jury—not the identity of

the transgressor. See DeLuna v. United States, supra.

In this case, the Trial Judge's admonition to the jury that Co-

defendant Bowles had an opportunity to testify under oath where

he could have been cross-examined by prosecution (R. 1593)

focused the juror’s attention on the fear a defendant would have

of being cross-examined. Just as it is improper for the prosecutor

to argue from the defendant's silence, so is it improper for the

trial judge to call attention to a defendant's silence. Bruno v. United

States, 308 U.S. 287 (1939). The Trial Judge's instruction naturally

11

caused the jury to think of why LaChance did not testify and sub-

ject himself to cross-examination. Thus, the Tria! Judge, by his

instruction, used the full weight of his position as the Trial Judge

to solemnize Mr. LaChance’s failure to testify. This, in turn, un-

necessarily drew the direct attention to the jury to the failure of

a defendant to testify and be cross-examined by the prosecution.

The statements made by counsel for Co-defendant Cepeda

were an equally harmful infringement upon Mr. LaChance's con-

stitutional right to silence. A statement that “you had better be

clean if you take the stand” would negatively influence the jury

with regard to any Co-defendant who chose not to testify. It infers

an aura of guilt for a defendant who chose not to take the stand.

A juror, hearing Cepeda’s argument, would naturally wonder

what it was that kept Mr. LaChance from testifying. Attention

by the jury to Mr. LaChance’s failure to testify would naturally

result from Cepeda’s argument. Such attention is inappropriate

and should have been remedied by the granting of a separate trial.

The comments made at trial regarding Co-defendants Bowles

and Cepeda had a substantial and prejudicial effect on Mr. La-

Chance’s constitutionally guaranteed Fifth Amendment right to

remain silent. With the guilty seed of inference having been so

well planted in the jury's mind as to why Mr. LaChance did not

testify, it is fair to assume that it germinated into a constitutionally

unfair verdict of guilty.

Improper Argument by Co-defendant Bowles

As a result of being tried jointly with the other Co-defend-

ants, Mr. LaChance was subjected to a great deal of improperly

prejudicial statements during argument, evidence, and testimony.

On two occasions at trial, Co-defendant Bowles made im-

12

proper statements which prejudiced Mr. LaChance, thereby de-

priving Mr. LaChance of a fundamentally fair trial.

First, Co-defendant Bowles, in delivering his own summa-

tion, repeatedly bolstered and vouched for the truthfulness and

credibility of key government witness, Frank Kelly (R. 1595-

1597).

Second, on various occasions during his final argument,

Bowles used inappropriate, inflammatory, improper and outra-

geous language (R. 1592-1593, 1698, 1604).

As to the fact that Co-defendant Bowles improperly vouched

for the truthfulness and credibility of key government witness

Frank Kelly, it is well-settled that neither the prosecutor nor de-

fense counsel can express his opinion as to a witness's credibility.

See United States v. Risi, 603 F.2d 1192 (Sth Cir. 1979); United

States v. Morris, 568 F.2d 396 (5th Cir. 1978). As such, any at-

tempts to bolster a witness by vouching for his credibility are,

of course, improper and error. United States v. Morris, supra;

United States v. Herrera, 531 F.2d 788, 790 (Sth Cir. 1976).

On three separate occasions, Co-defendant Bowles made

statements to the effect that government witness Kelly “told the

truth.” (Tr. 1595-1597). The Government, in their brief at page

36, concede that “Bowles at times vouched for the truthfulness

of (government witness) Kelly's testimony.”.

When Co-defendant Bowles argued his own case before the

jury in closing argument he was governed by the same rules as

the prosecutor and could not vouch for the testimony of govern-

ment witnesses. See United States v. Morris, supra; United States

v. Lamerson, 457 F.2d 371, 372 (Sth Cir. 1972). Merely because

Bowles argued his own case in an improper manner does not re-

move the right of Mr. LaChance to a fair trial.

13

In addition, Co-defendant Bowles also used highly inflam-

matory, prejudicial and outrageous language which inevitably

damaged Mr. LaChance by rousing the jurors’ emotions against

Mr. LaChance and all of the Co-defendants.

Co-defendant Bowles made the following statements which

spilled over onto Mr. LaChance, and painted him with the same

black brush as the criminal Bowles, thereby denying him a fair

and just trial.

Co-defendant Bowles: ...1 don’t want to be out on the streets

out here getting killed by gangsters and liars like has been

on this stand today. (Emphasis added). (R. 1592-93).

Co-defendant Bowles: These are gangsters around with guns

and things like that, get me up to another restaurant up here,

set me up in front of a bunch of peopel whatnot, and then

they all run off and leave me. And Mr. Kneer here is a known

gangster and a dope addict. (Emphasis added). (R. 1598).

Co-defendant Bowles: I'm not looking for justice. I'm looking

for you to find me not guilty. (Emphasis added). (R. 1604).

Mere curative instructions by the Trial Court in no way reme-

died the fact that these statements were extremely prejudicial to Mr.

LaChance in that they made it probable that the jurors’ emotions

against Mr. LaChance and the other Co-defendants were sub-

stantially roused to the point where the jurors’ emotions, instead

of the evidence against individual defendants decided the case.

ISSUE Il

Whether the Court of Appeals erred in failing to reverse

Joseph Lee LaChance’s conviction in the Trial Court wherein

the Trial Court improperly allowed testimony on several oc-

14

casions that Mr. LaChance had made certain highly inflam-

matory remarks whose probate value was substantially out-

weighed by the danger of unfair rejudice.

On direct examination by the Government and during cross-

examination by a Co-defendant, testimony was needlessly and

unfairly introduced that Mr. LaChance stated he was going to

blow away or kill a Columbian (R. 661-664, 811). The probative

value of this alleged statement was, at best, minimal to the Gov-

ernment in proving its case while the inherent thrust upon Mr.

LaChance by the alleged remark was devastating.

According to Rule 403 of the Federal Rules of Evidence, the

Trial Judge should exclude evidence, even if the evidence is relevant

where “its probative value is substantially outweighed by the dan-

ger of unfair prejudice.” See United States v. Frick, 588 F.2d 531,

537 (Sth Cir. 1979); United States v. Hearod, 499 F.2d 1003, 1004

(Sth Cir. 1974). Under Rule 403, an important consideration re-

lating to the probative value of the evidence is the prosecutorial

need for the evidence. United States v. Spletzer, 535 F.2d 950 (5th

Cir. 1976). In this case, it is apparent that the Government in no

way “needed” the alleged statement of Mr. LaChance that “he

was going to kill a Columbian.” This testimony, far removed from

being essential or even necessary, was introduced merely to bolster

the Government's tenuous case against Mr. LaChance. Mr. La-

Chance’s alleged statement was of scant and cumulative probative

force, dragged in by the government solely for the sake of its highly

prejudicial effect. See United States v. McRae, 503 F.2d 700, (Sth

Cir.1979).

Another example of the tota! lack of prosecutorial need for

Mr. LaChance’s alleged statement could be found in the Govern-

ment’s own words. In their answer brief at page 36, the Gov-

ernment claimed that “at bottom, the impact (of the alleged state-

ment) was negligible at most.” Such a statement inescapably raises

15

the question of how then, was the probative value of such a state-

ment so great? And how then, was the prosecutorial need for the

statement so great? Mr. LaChance strongly disagrees with the Gov-

ernment's tody characterization of the impact of his alleged state-

ment on the jury.

The introduction of the alleged statement by LaChance only

succeeded in unfairly misleading the jury and confusing the jury.

The statement only served to portray Mr. LaChance as a callous,

violent man devoid of any human compassion or respect. By por-

traying Mr. LaChance as a cold-blooded killer in the eyes of the

jury, Mr. LaChance’s right to a fair trial — one decided on the

evidence and not on emotion or passion — was ambushed. As

such, Mr. LaChance was convicted because of the jurors’ preju-

dicial emotions against him, instead of the actual evidence intro-

duced at trial. As such, Mr. LaChance was substantially and un-

fairly prejudiced to the point where his trial and subsequent con-

viction were both fundamentally and constitutionally unfair.

16

CONCLUSION

For all the foregoing reasons, the Petitioner, JOSEPH LEE

LACHANCE, respectfully moves this Court to grant the Petition

for Writ of Certiorari in this cause.

Respectfully submitted,

BENNIE LAZZARA, JR., ESQUIRE

BENNIE LAZZARA, JR., P.A.

606 Madison, Suite 2001

Tampa, Florida 33602

Phone: 813-229-2224

JOSEPH H. FICARROTTA, ESQUIRE

JOSEPH H. FICARROTTA, P.A.

600 Madison Street

Tampa, Florida 33602

Phone: 813-223-9788

Attorneys for the Petitioner

17

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that three true and correct copies of the

foregoing have been furnished to the Office of the United States

Attorney, 500 Zack Street, 4th Floor, Tampa, Florida 33602; and

MERVYN HAMBURG, ESQUIRE, Appellate Section, Criminal

Division, Department of Justice, Post Office Box 899, Ben Franklin

Station, Washington, D.C. 20044-0899; and to TOM McCOUN,

ESQUIRE, 150 2nd Avenue North, Suite 1210, St. Petersburg,

Florida 33701, by United States Mail, on this the day

of , 1987.

BENNIE LAZZARA, JR., ESQUIRE

BENNIE LAZZARA, JR., P.A.

606 Madison, Suite 2001

Tampa, Florida 33602

Phone: 813-229-2224

JOSEPH H. FICARROTTA, ESQUIRE

JOSEPH H. FICARROTTA, P.A.

600 Madison Street

Tampa, Florida 33602

Phone: 813-223-9788

APPENDIX A

A-1

UNITED STATES of America,

Plaintiff-Appellee,

xv

Joseph Lee LaACHANCE, Sonia Luz Meza-de Cepeda,

and John Thomas Bowles,

Defendants-Appellants.

No. 86-3070.

United States Court of Appeals,

Eleventh Circuit.

June 1, 1987.

Defendants were convicted of conspiring to import controlled

substances and related offenses by the United States District Court,

Middle District of Florida, No. 85-72-CR-T-13, George C. Carr,

J., and they appealed. The Court of Appeals, Atkins, Senior

District Judge, sitting by designation, held that: (1) conspiracy

to import controlled substances conviction was sufficiently sup-

ported by evidence, even though defendants activities in testing

plane used in smuggling operation were not illegal when viewed

in isolation; (2) defense attorney's argument to jury, that defen-

dant would take stand only if he was “clean,” was not improper

comment on codefendant’s failure to testify; (3) denial of defen-

dants’ motion for severance was not reversible error; (4) allow-

ing state to introduce evidence that defendant had threatened to

“blow away” coconspirator was not abuse of discretion; and (5)

denial of defendant's motion for hybrid representation was not

abuse of discretion.

Affirmed.

1. Conspiracy 47(12)

Conspiracy to import controlled substances conviction was

sufficiently supported by evidence, though defendant was not

present at landing strip when marijuana was expected to arrive,

where evidence was presented that defendant was present at

multiple planning meetings and financed smuggling operation by

providing $40,000 to lease aircraft.

A-2

2. Conspiracy 47(12)

Even though defendant's acts in testing plane used in drug

smuggling operation were not illegal in isolation, his conspiracy

to import controlled substances conviction was sufficiently sup-

ported by evidence that defendant was present at places where

nonparticipants in smuggling venture would not have been in-

vited, that he attended multiple planning meetings, and that he

was not heard to protest his noninvolvement in illicit scheme.

3. Criminal Law 622

Persons charged together should be tried together.

4. Criminal Law 1166(6)

Defendant must demonstrate specific and compelling pre-

judice to justify reversal of trial court's denial of motion for

severance.

5. Criminal Law 1166(6)

Denial of motior for severance results in “compelling pre-

judice,’ where jury is unable to compare and estimate indepen-

dent evidence against each defendant on each count and thereupon

reach individual verdicts.

See publication Words and Phrases for other

judicial constructions and definitions.

6. Criminal Law 622.2(1)

Severance is not warranted where there is no reasonable basis

to conclude that jury does not have capacity to follow court's cau-

tionary instructions and to make required judgments as to guilt

on each count and each defendant.

7. Criminal Law 721(3), 1171.5

Defense attorney's argument to jury in drug case involving

multiple defendants, that defendant would take stand only if he

was “clean,” was not improper comment on codefendant'’s failure

to take stand, but merely reference to his own client's decision

A-3

to testify; accordingly, attorney's argument was not reversible error

as to codefendant, especially where trial court instructed jurors

as to burden of proof on defendant's right to remain silent. U.S.

C.A. Const.Amend. 5.

8. Criminal Law 1166(6)

Denial of defendants’ motion for severance was not revers-

ible error, though codefendant improperly vouched for credibility

of government witness in his closing pro se argument, where trial

court gave appropriate cautionary instructions, and there was no

basis upon which to conclude that jurors did not understand

court's instructions.

9. Criminal Law 656(7)

Trial court's instruction to jurors, that statements made by

pro se defendant in his closing argument were not to be accepted

as evidence since pro se defendant had chosen not to take stand,

was not improper comment on defendant's or codefendant’s right

to remain silent. U.S.C.A. Const.Amend. 6.

10. Criminal Law 1166(6)

Denial of defendant's motion for severance was not revers-

ible error, where trial court gave appropriate cautionary instruc-

tions, and defendant could point to nothing in record indicating

that jurors were confused about evidence against him, or that they

decided to hold him responsible for offenses committed by

codefendants.

11. Criminal Law 338(1), 1153(1)

Evidentiary rulings are committed to broad discretion of trial

court, and are subject to reversal only for abuse of discretion.

12. Criminal Law 369.2(3)

Allowing state to introduce evidence that defendant had once

threatened to “blow away” fellow participant in drug smuggling

conspiracy was not abuse of discretion, despite defendant's argu-

ment that he had been unfairly prejudiced thereby, where state-

ment was admitted two weeks prior to start of jury's delibera-

tions, did not receive special emphasis at any point in proceedings,

A-4

and was admittedly relevant to defendant's association and rela-

tionship with coconspirators. Fed.Rules Evid.Rule 403, 28 U.S.C.A.

13. Criminal Law 641.10(3)

in

Right to counsel and right to proceed pro se exist in the alter-

native, so that defendant has no right to hybrid representation.

U.S.C.A. Const.Amend. 6.

14. Criminal Law 64 10(3)

Decision to allow defendant hybrid representation rests in

sound discretion of trial court. U.S.C.A. Const.Amend. 6.

15. Criminal Law 641.10(3)

When hybrid representation is denied and defendant elects

to proceed pro se, it is duty of reviewing court to make sure that

choice was made knowingly, intelligently, and voluntarily.

U.S.C.A. Const.Amends. 6.

16. Criminal Law 1166.11(6)

Denial of defendant's motion for hybrid representation was

not reversible error, where hybrid representation would have

resulted in frequent, interminable pauses while defendant spoke

with unofficial counsel, trial court painstakingly advised defen-

dant of his right to attorney or to proceed pro se, and trial judge

adequately assisted defendant after he elected to proceed pro se.

U.S.C.A. Const.Amend. 6.

Appeal from the United States District Court for the Mid-

dle District of Florida.

Before TJOFLAT and VANCE’, Senior District Judge.

ATKINS, Senior District Judge:

Appellants LaChance, Cepeda and Bowles appeal their con-

victions for conspiracy to import controlled substances and related

offenses. They were indicted with fifteen co-defendants in a thir-

* Honorable C. Clyde Atkins, Senior U.S. District Judge for the Southern

District of Florida, sitting by designation.

A-5

teen count indictment which focused upon the criminal activities

of Albert Fortna!

None of the appellants was charged with substantive offenses.

LaChance and Cepeda were charged in Count II only, for con-

spiracy to import marijuana into the United States. Bowles was

charged in Count II and III only, for the importation conspiracy

and conspiracy to possess marijuana with intent to distribute it,

respectively. They seek reversal on grounds that the evidence was

insufficient to support the verdicts, and that the district court erred

in denying their motions for severance, in admitting certain

evidence, and in refusing to permit hybrid representation during

closing argument. We find no error and affirm.

I, SUFFICIENCY OF THE EVIDENCE

Cepeda and Bowles challenge their convictions for conspiracy

to import marijuana into the United States on the ground that

the evidence was insufficient to support the verdicts.

A. Cepeda's Involvement

[1] Cepeda argues that the record shows only isolated con-

tacts between her and members of the conspiracy, during which

she was merely present and did not participate in the conspiracy.

However, the evidence adduced at trial, when examined in the

light most favorable to the government, Glasser v. United States,

315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), supports a finding

that Cepeda was not a mere bystander, but was in fact a partici-

pant in the conspiracy.

There was testimony from which the jury could find that in

November 1982 Cepeda attended a conspiratorial planning

meeting in Tampa and participated in the discussions at that

meeting; that Cepeda and Rivas, her husband, were jointly respon-

sible for furnishing the 22,000 pounds of marijuana that formed

the subject matter of the illicit agreement; that in May 1981,

Cepeda attended another meeting in Tampa wherein Rivas, Fortna,

LaChance and coconspirator Martinez reviewed the importation

plans; and that the next day Cepeda accompanied Rivas and Mar-

tinez on a flight to San Antonio.

1. Fortna was named in all but one count.

A-6

Further testimony indicated that Cepeda was a contact for

members of the conspiracy. Fortna called a woman named “Sonia”

for information regarding a flight to Aruba and the crew’s aban-

donment of the plane there. Martinez characterized Cepeda as

“the contact in Cc’ombia to purchase the marijuana,” and co-

conspirator Kelly described Cepeda’s family in Colombia as the

source for the marijuana.

Kelly further testified that Cepeda “was financing the opera-

tion,” that she provided $40,000.00 to lease a replacement aircraft,

and that, together with Rivas, she was entitled to half the mari-

juana load. Cepeda attended two meetings in Miami when Kelly

was hired to pilot the replacement aircraft to Colombia.

Testimony also indicated that Cepeda was the contact for

members of the conspiracy for information regarding the seizure

of the plane and the arrest of the crew. Martinez telephoned

Cepeda upon his arrival in Texas on the eve of the plane's

scheduled return from Colombia, and she informed him that the

others were already at the designated landing strip.? The day after

her plane's scheduled return, Cepeda conveyec a message to Mar-

tinez from Colombia that the plane had been seized when it landed

at the wrong location. Cepeda informed Kelly of the loss of the

plane and the arrest of the crew in detail. She indicated that it

would cost her $35,000 for each crew member's release. During

this conversation, she gave Pearson $5,000.00 to lease an aircraft

for a flight to Colombia.

It is well settled that participation in a conspiracy need not

be proved by direct evidence; it may be inferred from the actions

of the accused or by circumstantial evidence of a scheme. United

States v. Carter, 760 F.2d 1568, 1582 (11th Cir.1985), United States

v. Cole, 755 F.2d 748, 755 (11th Cir. 1985). The evidence of

Cepeda’s conduct recited above, although circumstantial, easily

affords a sufficient basis for finding that she deliberately and

knowingly joined and participated in the conspiracy. See Cole,

755 F.2d at 754.

2. The failure of Cepeda to be present at the time that the marijuana was ex-

pected to arrive is not a circumstance that supports a hypothesis of innocence.

If, as the evidence indicated, Cepeda provided the connection between the

smugglers and the Colombian suppliers, her role when the airplane made

its hoped-for round trip to Colombia would understandably be to remain

where the Colombian exporters could make contact and keep the American-

based participants aware of the airplane's progress. That responsibility could

only have been carried out in Miami, Cepeda’s home.

A-7

B. Bowles’ Involvement

[2] Bowles challenges the sufficiency of the evidence sup-

porting his conviction on Count II for conspiracy to import mari-

juana into the United States. He does not challenge his convic-

tion on Count III.

Bowles’ argument that the evidence shows conduct that at

worst is suspicious, and that indicates mere presence or associa-

tion is fatuous. The fact that his acts appeared not to be illegal

when viewed in isolation does not bar his conviction. “An act

innocent in nature and of no danger to the victim or society suf-

fices if it furthers the criminal venture.” United States v. Jones,

642 F.2d 909, 914 (Sth Cir.1981). Moreover, the totality of the

circumstances compels the conclusion that Bowles was a know-

ing participant in the importation conspiracy. United States v. Fer-

nandez, 797 F.2d 943, 949 n. 3 (11th Cir.1986).

Bowles participated in organization activities in Florida,

Aruba, and California that concerned aircraft intended solely for

use in the effectuation of the importation plan. Testimony in-

dicated that Bowles was brought to his first meeting in Florida

by principal conspirators Fortna and LaChance. Present at that

meeting was a Colombian whose express role was to guide the

airplane to the marijuana pickup site in Colombia. Bowles was

identified as a flight navigator. The specific details of the impor-

tation venture were discussed at that meeting. Bowles accom-

panied Kelly* to Aruba to inspect the DC-7 that had been im-

pounded by Aruban authorities, even though he was not qualified

to navigate a DC-7. The trip to Aruba was paid for by the con-

spirators. While in Aruba Bowles learned what was necessary to

obtain access to the impounded airplane. Bowles returned to the

United States with Kelly and Reece. Bowles went to California

only a couple of weeks after his return to Florida and met with

Hernandez, a principal conspirator who had not attended the

Florida meeting. Bowles’ assignment that time was to assist Kelly

and Pearson in checking the airworthiness of a KC-97 tanker that

the conspirators hoped to lease for their venture. Bowles went

to an airport with Hernandez, Kelly and Pearson where the KC-97

was parked and examined the aircraft. Efforts to lease the KC-97

collapsed, and Bowles thereafter accompanied Kelly, Pearson, Her-

nandez and Fortna to another airport, where Kelly and Pearson

3. Bowles was unaware that Kelly was cooperating with law enforcement of-

ficials during this journey and thereafter.

A-8

tested a DC-7. Bowles later attended the meeting with Martinez,

Fortna, Hernandez and Pearson at which Martinez revealed that

Cepeda had provided $40,000 to lease the DC-7.

Bowles’ conduct cannot be regarded as innocent when ex-

amined in context. Bowles was present at places where nonpar-

ticipants in the smuggling venture would have not been invited.

He was not present merely on an isolated occasion; rather, he at-

tended multiple planning meetings, and was not heard to have

protested that he was not a part of the illicit scheme that was the

obvious topic of discussion. See United States v. Kincade, 714 F.2d

1064, 1065 (11th Cir.1983). This evidence affords a sufficient basis

from which the jury could infer that he heard, understood, and

acquiesced in the statements. Carter, 760 F.2d 1568, 1579.

Il. THE DENIAL OF THE MOTION FOR SEVERANCE

The trial of Cepeda, LaChance, and Bowles began with three

others joined as defendants, William Jeske, James Harnage, and

Albert Fortna. A mistrial was declared as to Fortna one week in-

to the trial because a cancer detected in his lawyer's arm prevented

his continued participation in the case. Jeske was subsequently

severed before any evidence incriminating him was adduced. The

trial continued to conclusion with the four remaining defendants.

All three appellants argue that the district court erred in denying

their motions for severance. Each sought severance on diverse

grounds including a spillover effect of testimony relating to Fort-

na’s activities, comments by counsel on the testimony of co-

defendants, comments made by Bowles in his pro se closing argu-

ment, and the court's instructions bearing upon all of these alleged

errors.

A. Governing Principles

[3-5] Persons charged together should be tried together.

United States v. Butler, 792, F.2d 1528, 1534 (11th Cir.1986).

However, Rule 14 of the Federal Rules of Civil Procedure pro-

vides that a court may in its discretion order a severance of defen-

dants to avoid prejudice resulting from the joinder. See United

States v. Taylor, 792 F.2d 1019, 1023 (11th Cir.1986). A defen-

dant must demonstrate specific and compelling prejudice to justify

reversal of a denial of severance. United States v. Meester, 762

F.2d 867, 883 (11th Cir.1985). The standard for determining com-

A-9

pelling prejudice is whether the jury could compare and estimate

the independent evidence against each defendant on each count

and thereupon reach individual verdicts. United States v. Pirolli,

742 F.2d 1382, 1386 (11th Cir.1984); United States v. Garrett, 727

F.2d 1003, 1014 (11th Cir.1984); United States v. Phillips, 664 F.2d

971, 1017 (Sth Cir.1981).

[6] In addition, cautionary instructions limit the effect of

evidence which might otherwise be prejudicial. Meester, 762 F.2d

at 884. Where there is no reasonable basis to conclude that the

jury did not have the capacity to follow these instructions and

make the required judgments as to guilt on each count and each

defendant, there is no basis for severance. United States v. Rivera,

775 F.2d 1559, 1564 (11th Cir.1985), Meester, 762 F.2d at 884.

When the record is considered in light of these principals,

we find no error in the district court’s denial of severance.

B. Comments by Cepeda's Counsel During Final Argument

[7] LaChance did not testify at the trial. He argues that the

district court erred in refusing to grant a mistrial as to him on

grounds that counsel for Cepeda, who did testify. commented

upon his right to remain silent during the closing argument.

Counsel for Cepeda told the jury that “you had better be clean

up there when you take the stand because if you're not, Mr. Ken-

nedy (the prosecutor) will have her in his hand.” Transcript at

1658. No objection was made when the comment occurred.

LaChance moved for a mistrial only after the closing charge had

been given by the court and contended that the remark by counsel

for Cepeda constituted a “side slap at those who have not taken

the stand” and an impermissible reference to his client's failure

to testify. Transcript at 1695. No other relief was thereafter

requested.

In United States v. Diecidue, 603 F.2d 535, 553 (Sth Cir.1979),

the court distinguished between an adverse reference to an ac-

cused’s silence by counsel for a testifying co-defendant, which is

improper, and a favorable observation by that lawyer on the will-

ingness of his own client to testify, which, we hold, is permis-

sible. The court found no error where counsel “made no reference

to the silence of other defendants but merely observed that [his

own client] had told his story under oath, subject to cross-

examination and before the scrutiny of the jury.” Compare DeLuna

A-10

v. United States, 308 F.2d 140 (Sth Cir.1962), in which a co-

defendant's attorney's direct comment on the failure of another

accused to testify constituted reversible error.

We see no significant difference between the remarks in

Diecidue and those of Cepeda’s lawyer, and we hoid that the com-

ment was not error. See also United States v. Vera, 701 F.2d 1349,

1362 (11th Cir.1983); United States v. Washington, 550 F.2d 320,

328 (5th Cir.1977); United States v. Hodges, 502 F.2d 586 (Sth

Cir.1974).

We note further that the court in its final instructions in-

structed the jury that the government bore the burden of prov-

ing guilt beyond a reasonable doubt. It also admonished the jury

that “if a defendant elects not to testify, you should not consider

this in any way during your deliberations.’ This language afforded

LaChance the protection to which he was entitled.

C. Comments by Bowles During Final Argument

[8] LaChance and Cepeda argue that the district court erred

in not granting a mistrial as to them on grounds that Bowles, in

his pro se closing argument, improperly vouched for the credibility

of a government witness, argued facts not in evidence, and made

inflammatory comments.

The district court's diligent instruction of the jury throughout

Bowles’ pro se summation abrogated any prejudice which may

have affected the co-defendants’ verdicts. The court informed the

jury that it had granted Bowles’ request to present his own clos-

ing argument. Transcript at 1542-1543. The court emphasized that

Bowles had been cautioned not to use the opportunity to testify

A-11

on his own behalf,* and underscored this point by instructing them

that the final arguments do not constitute evidence. Transcript

at 1544. At each juncture at which Bowles made an improper com-

ment, the court interrupted him to give the jury the appropriate

cautionary instruction.’ The court's persistence, and the lack of

any basis upon which to conclude that the jury could not com-

prehend the court's instructions, precludes a finding of compelling

prejudice warranting reversal of the district court's denial of

severances for LaChance and Cepeda.

1. The Court's Instruction About Bowles’ Opportunity to

Testify

[9] LaChance further argues that the court's reference to

Bowles’ failure to testify in an instruction given to the jurv during

his closing argument impermissibly commentec upon LaChance’s

right not to testify. However, it is clear that this admonition refer-

red to Bowles alone.

4. The court provided Bowles with a copy of the proposed jury charge, and

postponed formal discharge of Bowles’ counsel until the next day so that

he could discuss his summation with his attorney. The court admonished

Bowles not to testify during closing argument, and warned him that if he

violated this directive twice, the jury would be instructed that the comments

were not evidence and that Bowles had foregone his opportunity to testify.

Transcript at 1520.

5. Bowles challenged the credibility of government witness Martinez. Using

the first person singular, he told the jury that he did not meet Martinez in

Cepeda’s presence. Once more the prosecutor objected, prompting another

instruction not to consider the comment as evidence. Transcript at 1594-95.

Bowles continued to argue facts not testified to by witnesses under oath.

When the prosecutor objected again, the court stated that the jury assured-

ly understood that the comments could not be considered as evidence.

Transcript at 1596. Bowles continued his argument, saying that government

witness Kelly was truthful when he “said that all agents from law enforce-

ment was liars, and the FBI was the greatest of them all.” Transcript at 1597.

Bowles continued discussing proof related to a different count. He told the

jury about “gangsters” who carried “guns and things like that,” making par-

ticular reference to prosecution witness Gilbert Knerr, whom he called “a

known gangster and a dope addict.” Transcript at 1598. The court held a

sidebar conference. As a result, Bowles clarified this argument, telling the

jury that he was referring only to Fortna and Knerr, and not to any of the

co-defendants on trial. Transcript at 1602. He proceeded to the end without

futher interruption, telling the jury curiously, “I'm not looking for justice.

I'm looking for you to find me not guiliy.” Transcript at 1604.

A-12

Following two comments made by Bowles,® the court

addressed the jury as follows:

I have told Mr. Bowles earlier—and this is a difficult situa-

tion. This is not usual, ladies and gentlemen, and now I'll

tell you that he had an opportunity to testify under oath

where he could have been cross-examined by the prosecu-

tion. He chose not to do that, and therefore, anything he

says is not evidence in the case. It’s not sworn testimony.

Transcript at 1593.

This comment merely placed Bowles’ argument in perspec-

tive by noting that its substance was not to be taken as evidence.

It did not comment upon Bowles’ right to remain silent or, by

implication, LaChance’s right to do so. Cf. Diecidue, 603 F.2d at

S33.

D. The Denial of Bowles’ Motion for Severance

[10] Bowles argues that his case should have been severed

upon severance of that of Fortna, so that the prejudice resulting

from his being tried jointly with Harnage would have been

avoided. Bowles’ argument rests on the premise that evidence

adduced at the joint trial that related only to counts against

Harnage reduced his chances of acquittal and thereby prejudiced

his case.’

Bowles must demonstrate he suffered compelling prejudice

as a result of the joint trial. See Priolli, 742 at 1386; Garrett, 727

F.2d at 1014; and Phillips, 664 F.2d at 1017. Specifically, he must

show compelling prejudice caused by the alleged evidentiary

6. Bowles informed the jury that he had been a pilot for 40 years, and that

he had a disability. Following a cautionary instruction in which the court

told the jury that the statement did not constitute evidence, Bowles continued

by telling the jury that he did not care to be out in the streets “getting killed

by gangsters and liars like has been on this stand today.’ The court admonish-

ed the jury that the argument was improper, and warned Bowles about the

impropriety of his conduct. Transcript at 1592-93.

7. Bowles also incorporates by reference the arguments of LaChance and Cepeda

for severance. Our reasons for affirming the denial of their severance mo-

tions applies with equal force here. See supra, slip opinion pp. 2862-2864,

pp. - ;

A-13

spillover, which effectively precluded the jury’s ability to make

the necessary individualized determination. Johnson, 713 F.2d at

640. Bowles cannot point to anything in the record indicating that

the jury was confused about the evidence against him, or that

the jury decided to hold him responsible for offenses committed

by co-defendants. Nor can we find a basis in the record to con-

clude that the jury was unable to, or failed to, comply with the

court's unequivocal instructions during and at the close of trial,

that the jury was to consider each defendant and each count

separately.

Ill. THE THREAT MADE BY LACHANCE

LaChance argues that the district court erred in admitting

evidence of a statement uttered by LaChance in which he

threatened that “he was going to blow away or kill” a co-

conspirator. LaChance argues, as evidence of his involvement in

the conspiracy, that the statement constituted cumulative evidence,

and that therefore its probative value is outweighed by prejudice

inherent in a remark which paints him as a “cold blooded killer.”

[11] Rule 403 of the Federal Rules of Evidence provides for

the exclusion of relevant evidence if its probative value is substan-

tially outweighed by the danger of unfair prejudice. Fed.R.Evid.

403. (Emphasis added). Evidentiary rulings under Rule 403 are

committed to the broad discretion of the court, and are subject

to reversal only upon a showing of abuse of discretion. Meester,

762 F.2d at 875.

[12] LaChance does not argue with the relevance of the state-

ment. It was probative of his knowledge of the plan, his super-

visory role in court, and his association and relationship with

his co-conspirators. Absent a finding of unfair prejudice, the state-

ment would therefore be admissible. United States v. King, 713

F.2d 627, 631 (11th Cir.1983).

We do not find any indication of prejudice in the record. The

statement did not receive special emphasis at any point in the pro-

ceedings. It was admitted two weeks prior to the start of the jury’s

deliberations, and was not expressly referred to again until, in-

terestingly, counsel for the LaChance referred to it in closing argu-

ment. The record does not indicate circumstances in which the

jury would be substantially influenced by the remark so as to cause

A-14

unfair prejudice to LaChance. Meester, 762F.2d at 876. We con-

clude that the district court did not abuse its discretion in admit-

ting this evidence.

IV. THE HYBRID REPRESENTATION CLAIM AND

COMMENT BY THE COURT

Bowles argues that the district court's refusal to permit him

to retain his attorney in an advisory capacity during closing argu-

ment constituted reversible error under the Fifth and Sixth Amend-

ments and contributed to his amateurish performance.

[13-15] It is the law of this circuit that the right to counsel

and the right to proceed pro se exist in the alternative and the

decision to permit a defendant to proceed in a hybrid fashion rests

in the sound discretion of the trial court. United States v. Mills,

704, F.2d 1553, 1557 (11th Cir.1983); United States v. Daniels,

572 F.2d 535, 540 (Sth Cir.1978). Where hybrid representation

is denied, and the defendant elects to proceed pro se, it is the duty

of the reviewing court to make sure that the choice was made

knowingly, intelligently, and voluntarily. United States v. Shea,

508 F.2d 82, 86 (Sth Cir.1975). In Mills, the defendant argued that

the district court abused its discretion in failing to allow hybrid

representation during the trial where the discovery phase and all

pretrial hearings had been conducted with hybrid representation.

He argued that the court's delayed ruling on his request to pro-

ceed with a hybrid defense encouraged him to rely on the

likelihood of a hybrid defense, and that his election to proceed

pro se deprived him of the insights he might have had had he

conducted his own discovery or his attorney had been beside him

at counsel table. The court held that, regardless of the tactical

advantages of hybrid representation, the district court's refusal

to permit it did not constitute reversible error where the court

made substantial accommodations to assist the defendant in pro

se defense.

[16] The record clearly reflects painstaking effort on the part

of the court to inform Bowles of the pitfalls of self-representation,

and to discourage him from doing so. The court explicitly advised

both attorney and client as to the ramifications to this decision.

Upon his announcement that his client wished to proceed pro se

and retain advisory counsel, the court informed Bowies’ attorney

that his client’s decision was tantamount to a waiver of his right

to counsel and that the court would not permit Bowles to pro-

ceed pro se as long as he was represented by counsel. The court

addressed Bowles personally after his attorney informed the court

that Bowles would discharge him if hybrid representation was

A-15

not allowed and thereatter advised Bowles on more than one oc-

casion as to the permissible limits of closing argument and the

prohibition against arguing facts not in evidence. The court ex-

pressly informed Bowles that his lawyer would be discharged and

unable to advise him. Transcript at 1444-1446. At the request of

Bowles’ counsel, the court permitted Bowles and his attorney to

confer overnight and did not require Bowles to announce his final

decision until the following morning. Bowles subsequently an-

nounced his decision to proceed pro se the next day.

Clearly, Bowles’ decision to proceed pro se was made with

full knowledge of the foolhardiness that accompanied it. The fact

that the denial of hybrid representation may have contributed to,

by creating the opportunity for, Bowles’ amateurish performance

and the court's need to give cautionary instructions does not in-

dicate abuse of discretion in denying the request here, as the district

judge adequately assisted Bowles in his pro se effort. It is apparent

that having counsel available would have required the trial judge

to subject the jury to frequent interminable pauses in the sum-

mation while Bowles spoke with unofficial counsel to receive the

same advice that the court gave without protracted delays in the

summation. Moreover, it has been held that where a defendant

is properly permitted to appear pro se, his lack of legal expertise

is not a basis for reversal. United States v. Weninger, 624 F.2d 163

(10th Cir.1980).

Bowles’ final point is that the district court directly com-

mented on his right to silence during his closing argument and

therefore committed reversible error by giving the cautionary in-

struction also complained of by LaChance.®

The court simply told the jury that having elected to exer-

cise his right not to take the stand, Bowles could not take advan-

tage of his opportunity to make his own closing argument to in-

troduce evidence not subject to cross-examination. Any linger-

ing possibility that the jury might regard the court’s comment

as adversely reflecting upon Bowles’ silence was dissipated com-

pletely by the clear admonition in the court's closing instruction

that “if a defendant elects not to testify, you should not consider

that in any way during your deliberations.” Transcript at 1680.

Accordingly, we find no basis for reversing Bowles’ conviction

on this ground.

WE AFFIRM.

8. See supra, slip opinion p. 2865, p.

APPENDIX B

B-1

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 86-3070

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSEPH LEE LaCHANCE

SONIA LUZ MEZA-deCEPEDA,

Defendants-Appellants.

Appeal from the United States District Court

for the Middle District of Florida

ON PETITION(S) FOR REHEARING

(July 15, 1987)

BEFORE: TJOFLAT and VANCE, Circuit Judges, and

ATKINS*, Senior District Judge.

PER CURIAM:

The petitions for rehearing filed byf appellants Sonia

Luz Meza-deCepeda and Joseph Lee LaChance, are denied.

ENTERED FOR THE COURT:

Tjoflat

United States Circuit Judge

*Hon. C. Clyde Atkins, Senior U. S. District REHG-4

Judge for the Southern District of Florida, (Rev. 9/85)

sitting by designation.