USA v. Moussa Baradji

Filing

Opinion issued by court as to Appellant Moussa Baradji. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-10899
JULY 9, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK

D. C. Docket No. 1:09-cr–00241-WSD-ECS-4

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus
MOUSSA BARADJI,
Defendant-Appellant.

________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 9, 2012)
Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.
PER CURIAM:

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Moussa Baradji appeals his conviction for felony copyright infringement, in
violation of 17 U.S.C. § 506(a), 18 U.S.C. §§ 2319(a), (b)(1) and (2). Baradji
argues that his trial was fundamentally unfair because he was tried jointly with
several codefendants for a conspiracy charge that was dismissed at the conclusion
of the evidence, pursuant to a Fed.R.Crim.P. 29 motion for a judgment of
acquittal.
Because Baradji did not argue for a severance below, we review only for
plain error. United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 1776,
123 L.Ed.2d 508 (1993). Under plain error review, Baradji must show (1) an error
that (2) is plain, (3) affects substantial rights, and (4) seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id. at 732, 113 S.Ct. at
1776.
Federal Rule of Criminal Procedure 8(b) provides that multiple defendants
may be charged together in the same indictment 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. Fed.R.Crim.P. 8(b). Federal Rule of
Criminal Procedure 14(a) provides that, if it appears that a defendant is prejudiced
by a joinder of offenses or of defendants in an indictment or a consolidation for
trial, “the court may order separate trials of counts, sever the defendants’ trials, or
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provide whatever other relief justice requires.” Fed.R.Crim.P. 14(a).
“Joint trials play a vital role in the criminal justice system and serve
important interests: they reduce the risk of inconsistent verdicts and the unfairness
inherent in serial trials, lighten the burden on victims and witnesses, increase
efficiency, and conserve scarce judicial resources.” United States v. Lopez, 649
F.3d 1222, 1233-34 (11th Cir. 2011); Zafiro v. United States, 506 U.S. 534, 537,
113 S.Ct. 933, 937, 122 L.Ed.2d 317 (1993). In this circuit, the rule is that
“defendants who are indicted together are usually tried together.” Lopez, 649
F.3d. at 1234. “This rule is even more pronounced in conspiracy cases. . .” Id.
To justify a severance, the defendant bears the “heavy burden of
demonstrating that compelling prejudice would result from a joint trial.” Id. “To
show compelling prejudice, a defendant must establish that a joint trial would
actually prejudice the defendant and that a severance is the only proper remedy for
that prejudice—jury instructions or some other remedy short of severance will not
work.” Id. “Because limiting instructions usually will cure any prejudice
resulting from a joint trial, . . . the Supreme Court has indicated that severances
need be granted only if there is a serious risk that a joint trial would either
‘compromise a specific trial right of one of the defendants’ or ‘prevent the jury
from making a reliable judgment about guilt or innocence’ even if limiting
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instructions are given.” Id. at 1234-35 (quoting Zafiro, 506 U.S. at 539, 113 S.Ct.
at 938).
“Dismissal of some counts charged in the indictment does not automatically
warrant reversal of convictions reached on remaining counts.” United States v.
Prosperi, 201 F.3d 1335, 1345 (11th Cir. 2000). “Rather, a reviewing court must
consider whether the convictions were the result of prejudicial spillover: that is,
was there evidence (1) that would not have been admitted but for the dismissed
charges and (2) that was improperly relied on by the jury in their consideration of
the remaining charges.” Id. In Prosperi, as to the first prong, we noted that the
challenged evidence would have been otherwise admissible, under Federal Rule of
Evidence 404(b), as evidence of the defendant’s intent. Prosperi, 201 F.3d at
1345-46. Rule 404(b) provides that extrinsic evidence of other crimes or bad acts
is inadmissible for the purpose of proving the defendant’s character, but such
evidence may be admitted for other purposes such as for proving motive, intent, or
absence of mistake or accident. Fed.R.Evid. 404(b)(1) and (2).
As to the second prong, we consider: (1) whether the jury meticulously
sifted the evidence admitted for all counts, which can be signaled by a
discriminating acquittal; (2) whether the contested evidence was “inflammatory in
nature;” (3) whether the evidence significantly altered the defendant’s trial
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strategy; and (4) the strength of the evidence against the defendant as to the
remaining counts. Proseperi, 201 F.3d at 1346. Finally, even in the case of
prejudicial spillover, “a court’s cautionary instructions will ordinarily mitigate the
potential spillover effect of evidence of a codefendant’s guilt.” Lopez, 649 F.3d at
1235.
In Schaffer, the Supreme Court addressed the question of whether a
severance should have been ordered under Rule 14(a), where the initial joinder
was proper under Rule 8(b), but the conspiracy count was dismissed before the
case was submitted to the jury. Schaffer v. United States, 362 U.S. 511, 514, 80
S.Ct. 945, 947, 4 L.Ed.2d 921 (1960). The Court declined to “fashion a
hard-and-fast formula that, when a conspiracy count fails, joinder is error as a
matter of law.” Id. at 516, 80 S.Ct. at 948. Instead, the Court emphasized that, in
such a situation, the trial judge has a continuing duty to grant a severance if
prejudice appears. Id. In concluding that a severance was not required, the Court
noted that the defendants failed to show any prejudice, and “even failed to request
a new trial,” relying entirely on their motions for acquittal. Id. The Court also
noted that the trial judge instructed the jury as to the evidence that should be
considered as to each defendant’s guilt on the substantive charges. Id.
Finally, in order to convict a defendant of felony copyright infringement,
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the government must prove that, during a 180-day period, the defendant
reproduced or distributed 1 or more copies of 10 or more copyrighted works with a
retail value of more than $2,500. 17 U.S.C. § 506(a); 18 U.S.C. § 2319(a) and (b).
If these requirements are met, the defendant is subjected to a five-year maximum
sentence. § 2319(b)(1). Otherwise, the maximum penalty is one-year
imprisonment. § 2319(b)(3).
The district court did not plainly err in failing to sua sponte sever Baradji’s
trial from that of his codefendants because he failed to show compelling prejudice
resulting from the joint trial. Specifically, he failed to show that evidence related
to the conspiracy charge created a prejudicial spillover effect on his conviction for
substantive copyright infringement because the challenged evidence would likely
have been admissible at a severed trial under Rule 404(b) as evidence of his intent
and absence of mistake. Because blank CDs and DVDs can be purchased for legal
purposes, the evidence of the February 2009 seizure could have been properly
admitted to show that Baradji intended to purchase those raw materials for illegal
use during the relevant time period for his substantive charge. In any event,
Baradji failed to show that the jury improperly relied on that evidence. The court
instructed the jury to consider the evidence pertaining to each defendant
individually and the fact that the jury subsequently acquitted one defendant
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demonstrates that the jury followed that instruction. Finally, the evidence from
co-defendant Ahn and Baradji’s admissions to Agent McGroaty was strong
enough to support the conviction and counsel against a finding of prejudice.
Accordingly, we affirm.
AFFIRMED.

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