Appeal from a judgment of conviction entered in the United States District Court for the Southern District of New York, Mary Johnson Lowe, Judge, for conspiracy to distribute and possess cocaine and for possession of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B), and 846, and 18 U.S.C. § 2. Affirmed.
Before: KEARSE, PRATT, and ALTIMARI, Circuit Judges.
German Severino appeals from a judgment entered in the United States District Court for the Southern District of New York after a jury trial before Mary Johnson Lowe, judge, convicting him on one count of conspiring to possess and distribute cocaine, in violation of 21 U.S.C. § 846 (1982), and on one count of possessing 310.59 grams of cocaine with intent to distribute it, in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(B) (1982), and 18 U.S.C. § 2 (1982). On appeal, Severino contends that the district court abused its discretion (1) in rejecting his attempt, pursuant to his agreement with the government, to plead guilty to a less serious charge and forcing him to stand trial on the indictment against him, and (2) in requiring him to exercise his peremptory challenges in the presence of the prospective jurors, thereby denying him a fair trial. We find no basis for reversal and accordingly affirm the judgment of conviction.
Severino was indicted and convicted on two counts of narcotics violations: one count of conspiring with his cousin Roberti de Jesus Severino ("Roberti") and others to distribute and possess with intent to distribute cocaine, and one count of possession of approximately 310 grams of cocaine with intent to distribute it. Much of the evidence supporting the conviction was also presented to the court in a pretrial suppression hearing on the issue of whether there was probable cause for Severino's arrest.
At the suppression hearing, the government presented evidence that on July 18, 1985, in an apartment on 158th Street in Manhattan, Roberti and another coconspirator arranged to sell a quantity of cocaine to an undercover agent of the New York Drug Enforcement Task Force. The agent testified that on that date, Severino drove Roberti from 158th Street to 175th Street, where Roberti informed the agent that the agent would receive a sample and that the sale would take place on 125th Street. When the agent protested at having to travel all around Manhattan for 300 grams of cocaine, Severino responded, in English, that 125th Street was only 10 minutes away and that all the agent had to do was "go upstairs and check out the sample of coke and then go down to 125th Streets and then everybody would be on their way." Severino, Roberti, and the agent then entered an apartment in a nearby building; while Severino and the agent sat on a couch in the living room, Roberti and the man who had let them into the apartment went into another room and closed the door; when they returned, Roberti displayed a plastic bag containing a small quantity of cocaine. The agent inspected the cocaine and agreed to buy.
Severino, Roberti, and the agent then left the apartment. Severino drove Roberti, with the agent following, to 125th Street, where Roberti went into a building and returned with a brown paper bag. Severino backed up and double-parked beside the agent's car. Roberti got into the car beside Severino and, when the agent leaned in, showed the agent the contents of the bag, which was stipulated at trial to contain approximately 310 grams of 85% pure cocaine hydrochloride. Upon a prearranged signal from the agent, other law enforcement officers promptly arrested Roberti and Severino. When arrested, Severino had in his possession .24 grams of cocaine.
B. The Commencement of Trial and the Proposed Guilty Plea
Jury selection for Severino's trial commenced on November 18, 1985. On the first round of the process, Severino exercised two of his peremptory challenges to prospective jurors. After the court clerk had announced these challenges, defense counsel, in a sidebar conference, "object[ed] to being asked to exercise [his] challenges in so public a way." The court overruled this objection, stating, "This is the way I select a jury. They have a right to know who is challenging whom." Severino made no further challenges to prospective jurors but moved for a mistrial, arguing that the court's requirement that each side's peremptory challenges be exercised publicly had the effect for forcing defense counsel to choose between accepting an unsatisfactory jury and risking the jury's speculations as to why the defendant was exercising peremptory challenges. The court denied the motion.
On the following day, when the presentation of evidence was due to begin, Severino sought to enter plea of guilty to a one-count information charging him with possessing .24 grams of cocaine with intent to distribute it. Under the agreement, the indictment charges against Severino would be dismissed at the time of his sentencing, and the government would also refrain from prosecuting Severino, an alien, for unlawful entry into the United States in July 1985. According to the Assistant United States Attorney ("AUSA"), the plea bargain required Severino not only to plead guilty to possession of .24 grams of cocaine with intent to distribute, but also to allocute "to essentially a conscious avoidance of the underlying facts" of the count of the indictment that charged him with possession of 310 grams of cocaine.
After advising and questioning Severino, through an interpreter, to ascertain that his plea of guilty was knowing and voluntary, Judge Lowe advised Severino that she would question him about the charges in the information, and warned that if he did not answer truthfully he "would be subject to an additional charge of making a false statement to a judicial officer." In response to the court's questioning about the charges, Severino stated that on July 18, 1985, he had had a quarter of a gram of cocaine in his possession that he intended to use and to give to two friends for them to use. When asked what else he had done on that date, he told the court that "Roberti Severino asked me for a ride to 125th Street and a minute before I was arrested I suspected that he was dealing in drugs. It was too late for me to get out of the problem." In response to further questioning by the AUSA, Severino stated that on July 18, he had been unaware that Roberti sold cocaine, that he had not seen the sample of cocaine displayed by Roberti in the 175th Street apartment, that he had not told the undercover agent that it would only take 10 minutes to drive to 125th Street, but had merely stated that to Roberti in response to Roberti's question; and that he did not speak English. Indeed, Severino stated that he did not speak even a little English, although he drove a taxi cab in Manhattan. After further questioning, Judge Lowe stated that based on "the totality of his responses," she did not believe Severino was being truthful. She determined not to ask him any further questions, stating that she did "not wish to subject him to additional charges." Judge Lowe rejected the proffered guilty plea, deciding to "leave it up to the jury to decide where the truth is."
Trial then commenced on the two charges in the indictment, and Severino was convicted on both counts. He was sentenced to a term of imprisonment of one year and one day on the conspiracy count, to be followed by one day's ...