Appeals from the United States District Court for the Central District of Illinois. No. 3:07-CR-30115-Jeanne E. Scott, Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge.
Before BAUER and SYKES, Circuit Judges, and GRIESBACH, District Judge.*fn1
Clarence Plato and Bishop Graham were jointly tried and convicted by a jury of distributing crack cocaine in violation of 21 U.S.C. § 841(a)(1). Law- enforcement officers caught the pair on videotape selling crack cocaine to a confidential informant inside a car parked at a restaurant in Springfield, Illinois. Graham raises two issues on appeal. First, he argues that his trial should have been severed from Plato's because Plato's counsel repeatedly argued to the jury that Graham was guilty. He also challenges the district court's decision to let the jury see a slow-motion replay of the surveillance video that captured the sale. Plato's counsel has moved to withdraw from representation and submitted an Anders brief explaining why all possible grounds for appeal are without arguable merit.
We affirm Graham's conviction. His argument for separate trials is waived because he failed to renew his pretrial motion for severance at the close of the evidence. Waiver aside, the argument is meritless; antagonistic defenses do not necessarily require severance. Zafiro v. United States, 506 U.S. 534, 538 (1993). Rather, Graham must show that the joint trial deprived him of a specific trial right, and he cannot do so. Moreover, the district court did not abuse its discretion by replaying-in slow motion-the surveillance video of the drug sale. Finally, we agree with Plato's counsel that there are no non-frivolous appellate arguments available to him. Accordingly, we grant counsel's motion to withdraw and dismiss Plato's appeal.
In July 2007 law-enforcement officers in Springfield, Illinois, began investigating Plato for dealing crack co-caine. Under the direction of federal agents, a confidential informant contacted Plato to arrange a controlled drug buy. In a series of recorded phone calls, Plato agreed to meet the informant on July 13, 2007, at the Spaghetti Warehouse restaurant in Springfield. The informant met Plato in the restaurant's parking lot. The informant was carrying more than $1,700 in marked bills and wore an audio- and video-recording device. Plato and the informant got into a black Dodge Charger. Bishop Graham was seated in the driver's seat.
The parties disagree about what happened next. The trial testimony of the informant, which the jury evidently believed, was that Graham handed him the drugs and he gave Graham the cash in return. No one disputes, however, that the informant emerged from the car moments later with approximately 63 grams of crack cocaine. The entire exchange was captured on video surveillance. The police tailed Graham out of the parking lot and eventually pulled him over for making a left turn without signaling. Plato was no longer in the vehicle; the only other occupant was Graham's companion, a Ms. Chapman. Graham advised the police that his driver's license had been revoked, and he was taken into custody. The police found the $1,700 in marked buy money in Ms. Chapman's purse.
Plato and Graham were indicted jointly on one count of distributing 50 or more grams of crack cocaine in violation of 21 U.S.C. § 841(a)(1). Plato agreed to cooperate with the police and participate in a controlled drug sale. The cooperation agreement eventually fell through, but not before Plato had made incriminating statements about the July 13 sale with Graham. Both defendants pleaded not guilty and were set to be tried together. Graham filed a motion for severance on the ground that the government would likely use Plato's statements to the police, and if Plato did not testify, this would violate Graham's Sixth Amendment right to confront the witnesses against him. See Bruton v. United States, 391 U.S. 123 (1968). The government agreed not to use Plato's incriminating statements at trial but reserved the right to use them at sentencing. In light of the government's stipulation not to introduce Plato's statements at trial, the district court denied the severance motion. A three-day jury trial ensued.
The trial naturally focused on the exchange that took place in the Dodge Charger in the Spaghetti Warehouse parking lot. Both defendants stipulated that Graham was the person in the driver's seat and Plato was the person in the passenger's seat in the surveillance video of the transaction. Despite his presence in the car during the sale, Graham maintained that he was an innocent bystander. He testified that the informant placed the cash in the car's center console, and Plato motioned to him to take it, which he did. Graham said that he believed Plato was paying him for some tires and rims, and that he was unaware of any drug sale and had no idea why the informant was giving Plato such a large sum of money. Graham's attorney argued in closing that Plato arranged the drug sale and Graham had unwittingly provided transportation. Graham also attacked the credibility of the government's informant.
Plato did not testify at trial. His defense was simple and it took direct aim at Graham: Graham had arranged and executed the drug sale, and Plato had nothing to do with it.*fn1 Plato's counsel argued in no uncertain terms that Graham was guilty, and Graham claims on appeal that these statements compromised his right to a fair trial. At the close of the evidence, however, Graham's counsel did not renew his earlier motion to sever.
The judge instructed the jury that each defendant should be considered separately. The judge also told*fn2 jurors that if they wanted to review audio or video exhibits during deliberations, they would be brought back into the courtroom. During deliberations, the jury asked to see a slow-motion replay of a portion of the surveillance video-specifically, from the point at which the informant entered the car through the time he exited. Plato's counsel did not object. Graham's counsel agreed to the tape being replayed but objected to playing it in slow motion. The judge overruled Graham's objection, brought the jury back into the courtroom, and allowed the video to be replayed in slow motion. The jury then resumed deliberations and returned a guilty verdict for both defendants.
After his conviction Plato objected to the government's use at sentencing of the incriminating statements he had made to the police. The court overruled the objection on the ground that Plato had breached his immunity agreement and then permitted the government to use the statements at sentencing. The court sentenced Graham to 292 months and Plato to 262 months. Both defendants appealed. Plato's attorney subsequently moved to withdraw and submitted a brief under Anders v. California, 386 U.S. 738 (1967), explaining ...