United States v. Cristobal Silverio

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4629
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CRISTOBAL SILVERIO, a/k/a Christopher,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Anthony J. Trenga,
District Judge. (1:12-cr-00041-AJT-3)
Submitted: February 26, 2013 Decided: March 11, 2013
Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jonathan A. Simms, SIMMS & HARRIS, PLLC, Fairfax, Virginia, for
Appellant. Neil H. MacBride, United States Attorney, Lisa
Owings, Assistant United States Attorney, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cristobal Silverio pled guilty to possession of a
firearm by a convicted felon and subsequently was convicted at
trial of conspiracy to distribute 500 grams or more of cocaine,
possession with intent to distribute cocaine, and possession of
a firearm in furtherance of a drug trafficking crime. He
received an aggregate sentence of 120 months in prison.
Silverio now appeals, claiming that the district court erred in
denying his motion to sever his trial from that of his
co-defendant, Martin Morales Benavente. We affirm.
“If the joinder of . . . defendants in an indictment
. . . appears to prejudice a defendant or the government, the
court may . . . sever the defendants’ trials.” Fed. R. Crim. P.
14(a). However, “[t]here is a preference in the federal system
for joint trials of defendants who are indicted together.”
Zafiro v. United States, 506 U.S. 534, 537 (1993). “Joinder is
particularly favored in conspiracy cases.” United States v.
Montgomery, 262 F.3d 233, 244 n.5 (4th Cir. 2001).
To prevail on a motion to sever, the defendant bears
the burden of establishing:
(1) a bona fide need for the testimony of his
co-defendant; (2) the likelihood that the co-defendant
would testify at a second trial and waive his Fifth
Amendment privilege; (3) the substance of his
co-defendant’s testimony; and (4) the exculpatory
nature and effect of such testimony.
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United States v. Parodi, 703 F.2d 768, 779 (4th Cir. 1983). We
review the denial of a defendant’s motion to sever his trial
from that of a co-defendant for abuse of discretion. United
States v. Medford, 661 F.3d 746, 753 (4th Cir. 2011).
During the colloquy on Silverio’s motion, counsel was
equivocal as to whether Benavente would testify on Silverio’s
behalf if the motion were granted. Accordingly, Silverio failed
to establish the second requirement under Parodi. Because a
defendant seeking a severance must establish all four of the
Parodi factors, Medford, 661 F.3d at 754, we conclude that the
district court did not abuse its discretion in denying
Silverio’s motion.
We therefore affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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