argued submitted anchorage alaska: August 6, 1993.
Appeal from the United States District Court for the District of Alaska. D.C. No. CR-91-114-01-JMF. James M. Fitzgerald, District Judge, Presiding
Before: Schroeder, Fletcher and Alarcon, Circuit Judges.
Timothy J. Donnelly appeals from the district court's order sentencing him to 540 months for conspiracy to distribute cocaine, using a firearm during a drug trafficking crime, and two counts of being a felon in possession of a firearm.
Donnelly contends that the district court erred in denying his pretrial motions for severance of the counts of the indictment because the counts were improperly joined and the joinder prejudiced his defense at trial. Donnelly also argues that the district court erred in denying his motion for a mistrial based on the Government's late disclosure of potentially exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). Finally, Donnelly asserts that the district court erred in failing to articulate its reasons for sentencing him to the maximum sentence within the guideline range. We affirm because we have concluded that Donnelly's contentions lack merit. We discuss each contention and the facts pertinent thereto under separate headings.
The Severance Issue Was Not Preserved
Donnelly contends that the district court erred in denying his pretrial motions for severance. The Government asserts that Donnelly has waived his right to appeal from the denial of his motion for severance because he did not renew the motion after all the evidence had been presented. We agree.
Rule 14 of the Federal Rules of Criminal Procedure provides that "if it appears that a defendant . . . is prejudiced by a joinder of offenses . . . in an indictment . . . the court may order an election or separate trials of counts." Fed. R. Crim. P. 14. The right to claim error in the denial of a motion pursuant to Rule 14 to sever counts in an accusatory pleading is waived if it is not renewed at the close of evidence. United States v. Burgess, 791 F.2d 676, 678 (9th Cir. 1986). We have held that failure to renew a request for severance at the close of evidence suggests that the prejudice from joinder asserted on appeal may not have seemed so substantial to the appellant in the context of trial. Williamson v. United States, 310 F.2d 192, 197 (9th Cir. 1962). We have also noted that "'this requirement is not an inflexible one.'" United States v. Felix-Gutierrez, 940 F.2d 1200, 1208 (9th Cir. 1991) (quoting United States v. Kaplan, 554 F.2d 958, 965 (9th Cir.) (per curiam), cert. denied, 434 U.S. 956 (1977)), cert. denied, 113 S. Ct. 2332 (1993). "A denied motion for severance will be preserved for appeal, absent a post-evidence renewal, where the motion accompanies the introduction of evidence deemed prejudicial and a renewal at the close of all evidence would constitute an unnecessary formality." United States v. Free, 841 F.2d 321, 324 (9th Cir.) (internal quotation marks and citation omitted), cert. denied, 486 U.S. 1046 (1988). "The guiding principle is whether the defendant diligently pursued the motion." Felix-Gutierrez, 940 F.2d at 1208. We have held that the mere filing of pretrial severance motions is not sufficient to establish "diligent pursuit" of the objection to joinder. Free, 841 F.2d at 325.
In Felix-Gutierrez, we concluded that the appellant did not waive his right to challenge the denial of his severance motion despite his failure to renew the motion at the close of evidence. Felix-Gutierrez, 940 F.2d at 1208. We were persuaded in that case that the appellant "diligently pursued" his objection to the joinder of counts by filing the motion for severance, an opposition, a reply, a supplemental opposition, a motion for reconsideration, and by orally renewing the severance motion several times during the trial. Id. We held that these efforts were sufficient to render a renewal of the severance motion an unnecessary formality. Id.
In this case, Donnelly filed three pretrial motions for severance but, unlike the appellant in Felix-Gutierrez, did not renew his objection after the start of the trial. Because Donnelly failed to renew his motion for severance at trial, the district court had no reason to believe that the prejudice cited by Donnelly prior to trial was manifested during trial, was as damaging as Donnelly had anticipated, or was not cured during trial. Therefore, Donnelly waived his right to appeal the denial of his motion for severance pursuant to Rule 14.
Joinder of Drug and Firearm Possession Counts Was Proper
Donnelly further contends that even though he labeled each of his objections to the indictment as a motion for a severance under Federal Rule of Criminal Procedure 14, he is entitled to appellate review because he informed the district court that the counts of the indictment were improperly joined under Rule 8(a) of the Federal Rules of Criminal Procedure. Rule 8(a) provides as follows:
Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or ...