United States v. Gilbert Mariscal, Jr.

A jury convicted Gilbert Mariscal, Jr., of conspiracy to distribute cocaine and use of a telephone to facilitate the distribution of cocaine, all in violation of 21 U.S.C. §§ 841 (a)(1), 843(b) & 846. He was tried along with seven codefendants and claims the district court erred in denying his motion for severance. We affirm.

I

Part of the government’s case against Mariscal consisted of the testimony of Andres Serrano, who said that Rodimiro Rojas-Oquita, a codefendant of Mariscal’s, had told him Mariscal owed Rojas-Oquita money from cocaine transactions. Mariscal claims that the government waited until a day before trial to inform him that Serrano would testify against him. He says his counsel then contacted counsel for Rojas-Oquita to determine if Rojas-Oquita planned to take the stand at their joint trial. Mariscal contends that Rojas-Oquita’s testimony would have given him an opportunity to contradict Serrano’s version of the conversations incriminating Mariscal. Rojas-Oquita was not sure whether he would testify, and the trial began.

As the trial progressed, Mariscal learned that Rojas-Oquita would not be testifying. He then moved, in mid-trial and for the first time, for…