UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RAFAEL RUBALCAVAHERNANDEZ,

Defendant-Appellant.

No. 98-4108

(D.C. No. 96-CR-161-01)

(D. Utah)

ORDER

Filed November 9, 1999

Before KELLY, HOLLOWAY, and BRISCOE, Circuit Judges.

Appellant’s Motion to Correct Opinion is granted. The first sentence under

the heading “The Geneva Convention” on page 5 of the order and judgment is

corrected to read: “Rubalcava-Hernandez's argument that he is entitled to

sentencing under the Geneva Convention merits little discussion.” A corrected

order and judgment is attached.

Entered for the Court,

Patrick Fisher, Clerk of Court

By: 

Keith Nelson

Deputy Clerk
*

 This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

OCT 13 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

 v.

RAFAEL RUBALCAVAHERNANDEZ,

Defendant-Appellant.

No. 98-4108

(D.C. No. 96-CR-161-01)

(D. Utah)

ORDER AND JUDGMENT*

Before KELLY, HOLLOWAY, and BRISCOE, Circuit Judges.

Rafael Rubalcava-Hernandez was indicted for the possession of cocaine,

methamphetamine, and heroin with intent to distribute, in violation of 21 U.S.C.

§ 841 and 18 U.S.C. § 2. After a jury trial, Rubalcava-Hernandez was convicted

of the charges and then sentenced by the district court to 121 months

imprisonment. We affirm.
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I.

In August 1996, local law enforcement officers in Salt Lake City, Utah,

acting on surveillance and information from a confidential informant, obtained a

warrant to search a residence implicated in unlawful drug trafficking. While

executing the warrant, officers knocked on the door twice and announced their

presence in both English and Spanish. No one answered, but the officers heard

shuffling within the residence. Twenty to thirty seconds after their first knock,

the officers employed a battering ram to force the door open and entered the

house. Once inside, the officers heard someone running down stairs in the rear

of the residence. After tracking the sounds, officers discovered RubalcavaHernandez in a basement storage area with a white powdery substance on his

pants and shirt. A subsequent search of the kitchen and basement revealed

approximately 29 kilograms of cocaine, eight kilograms of methamphetamine,

240 grams of heroin, $41,399 in U.S. currency, a firearm, drug paraphernalia

(such as packaging materials, scales, and drug spoons), numerous “pay-owe”

sheets, and an array of Polaroid photographs. Some of the photographs depicted

Rubalcava-Hernandez holding a weapon while posing in front of money and

drugs lying on the kitchen table. Law enforcement officials later discovered

Rubalcava-Hernandez’s fingerprints on several packages containing cocaine.

One week after the search, a federal grand jury indicted Rubalcava-
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Hernandez on three counts of possession of a controlled substance with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. A

superseding indictment was returned in November 1996 charging both

Rubalcava-Hernandez and Elmer Salvador-Rodriguez with the same offenses

listed in the original indictment. In April 1997, Rubalcava-Hernandez sought a

declaratory judgment that the United States was in a state of war with respect to

drugs and that his prosecution was subject to the provisions of the Geneva

Convention Relative to the Treatment of Prisoners of War. The district court

denied the motion on the record following a hearing. In July 1997, RubalcavaHernandez filed a “Motion For Application Of The Geneva Convention.” Record

on Appeal (“ROA”), Vol. I, Doc. 60. The district court held a hearing on the

matter and denied the motion. Rubalcava-Hernandez filed an interlocutory

appeal of the district court’s ruling, which we dismissed as jurisdictionally

defective on February 3, 1998. 

Rubalcava-Hernandez filed three additional motions in February and March

of 1998. Rubalcava-Hernandez sought in these motions to (1) sever his trial from

that of Salvador-Rodriguez; (2) compel disclosure of the government’s

confidential informant; and (3) suppress all evidence and dismiss the charges

against him for discovery abuse. The district court denied RubalcavaHernandez’s motion to sever based on its untimely filing and the absence of
1

 Rubalcava-Hernandez identifies several other points in his “statement of

issues presented on appeal,” but does not develop them in the argument section of

his brief. The failure to adequately brief an issue constitutes a waiver. See Gross

v. Burggraf Constr. Co. , 53 F.3d 1531, 1547 (10 th Cir. 1995) (“[I]t is insufficient

merely to state in one’s brief that one is appealing an adverse ruling below

without advancing reasoned argument as to the grounds for appeal.”) (citation and

(continued...)

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potential prejudice. The court denied the motion to disclose the confidential

informant based on the “lack of need shown by the defendant.” Id. , Doc. 114. 

The court denied Rubalcava-Hernandez’s motion to suppress and to dismiss for

reasons unspecified in the record. Trial commenced on April 1, 1998. Two days

later, the jury convicted Rubalcava-Hernandez and Salvador-Rodriguez of all

three counts charged in the superseding indictment. In June 1998, the district

court sentenced Rubalcava-Hernandez to 121 months imprisonment. 

II.

Rubalcava-Hernandez raises six issues on appeal. He contends that the

district court erred by (1) failing to apply the Geneva Convention and to classify

him as a prisoner of war; (2) refusing to sever his trial from the trial of SalvadorRodriguez; (3) failing to compel disclosure of the government’s confidential

informant; (4) admitting into evidence crime scene photographs that the

government did not timely disclose; (5) denying his motion to suppress all

evidence seized in a purportedly illegal search of the residence; and (6) refusing

to reduce his sentence for acceptance of responsibility. 1
1

(...continued)

internal quotation marks omitted).

-5-

The Geneva Convention

Rubalcava-Hernandez's argument that he is entitled to sentencing under the

Geneva Convention merits little discussion. The rhetorical “war on drugs” is an

amalgam of various measures designed to reduce the production and consumption

of illegal narcotics. It is not the type of “declared war” or “armed conflict”

between treaty signatories envisioned by the Convention. See Geneva

Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, art. 2,

6 U.S.T. 3316, 75 U.N.T.S. 135 (1950 WL 7478 (TIA) at *1). Furthermore,

Rubalcava-Hernandez is not a “prisoner of war” as defined by the Convention. 

See id. art. 4 (1950 WL 7478 (TIA) at *2-*3). He is not a member of (or

otherwise associated with) the armed forces, a militia, or a resistance movement

in Central America or the United States.

Severance

Rubalcava-Hernandez contends that the district court improperly denied his

motion for severance. He argues in essence that prosecutors failed to link him to

the drug distribution ring and that the evidence inculpating Salvador-Rodriguez

should not have been “paraded” before the jury. A trial court’s denial of a
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motion to sever will not be disturbed on appeal unless there is an affirmative

showing of an abuse of discretion. United States v. Morales , 108 F.3d 1213,

1219 (10 th Cir. 1997).

Establishing an abuse of discretion in this context is no mean feat. To

make such a showing, “the defendant must show actual prejudice resulted” from

the denial of the motion to sever. Id.; see also United States v. Martinez , 76 F.3d

1145, 1152 (10 th Cir. 1996) (“The defendant seeking severance carries the burden

of establishing clear prejudice if tried with another defendant.”). Moreover,

“[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); see also

Martinez , 76 F.3d at 1152 (“As a general rule, persons indicted together are tried

jointly.”). Such trials “promote efficiency and serve the interests of justice by

avoiding the scandal and inequity of inconsistent verdicts.” Zafiro , 506 U.S. at

537 (citation and internal quotation marks omitted). Thus, when two or more

defendants properly have been joined pursuant to Federal Rule of Criminal

Procedure 8(b), “a district court should grant a severance under Rule 14 only if

there is a serious risk that a joint trial would compromise a specific trial right of

one of the defendants, or prevent the jury from making a reliable judgment about

guilt or innocence.” Id. at 539. As a corollary, “[n]either a mere allegation that

[a] defendant would have a better chance of acquittal in a separate trial, nor a
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complaint of the ‘spillover effect’ from the evidence that was overwhelming or

more damaging against the co-defendant than that against the moving party is

sufficient to warrant severance.” Morales , 108 F.3d at 1219 (citation omitted);

accord Martinez , 76 F.3d at 1152.

Judged by these standards, the district court’s denial of RubalcavaHernandez’s motion to sever cannot be deemed an abuse of discretion. First, the

government did in fact present independent evidence linking RubalcavaHernandez to the controlled substances in the residence. That evidence included

testimony that Rubalcava-Hernandez was found in the house with a white

powdery substance on his clothing, surrounded by a substantial amount of illegal

narcotics. It also included photographs of Rubalcava-Hernandez posing in front

of the drugs while carrying a firearm. Second, as Morales and Martinez make

clear, allegations of a “spillover effect” or a diminished chance of acquittal are

generally insufficient to justify severance. While it is true that severance

occasionally may be warranted when “many defendants are tried together in a

complex case and they have markedly different degrees of culpability,” see

Zafiro , 506 U.S. at 539, this case does not fit that description. Third, any risk of

prejudice was reduced by the district court’s jury instructions. The court advised

jurors that they should consider each defendant (and each count) separately, and

that “[a] verdict of guilty as to one of the defendants does not by itself require a
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guilty verdict as to the other defendant.” ROA, Vol. I, Doc. 123, Instruction 14. 

The denial of a motion to sever is not improper when the risk of prejudice is “of

the type that can be cured with proper instructions,” because “juries are presumed

to follow” directives from the court. Zafiro , 506 U.S. at 540-41.

Disclosure of the Confidential Informant

Rubalcava-Hernandez also challenges the district court’s refusal to identify

the government’s confidential informant. He principally argues that the

informant could have testified that she (or he) did not become aware of

Rubalcava-Hernandez until after the search warrant was executed. RubalcavaHernandez maintains that this testimony would have bolstered his defense by

demonstrating that the police never suspected him of drug trafficking prior to his

arrest. Rubalcava-Hernandez likewise claims that the informant’s testimony

would have illustrated that his presence in the house at the time of the search was

simply an unfortunate coincidence.

We review a district court’s denial of a motion to disclose the identity of a

confidential informant for an abuse of discretion. United States v. Gordon , 173

F.3d 761, 767 (10 th Cir.), cert. denied , 1999 WL 496159 (Oct. 4, 1999). As we

explained in Gordon ,

A defendant seeking to force disclosure of an informant’s identity

has the burden to show the informant’s testimony is relevant or
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essential to the fair determination of defendant’s case. In

determining whether to require disclosure, a court must balance the

public interest in protecting the flow of information against the

individual’s right to prepare his defense. The court conducts this

balancing in light of the crime charged, the possible defenses, and

the significance of the informant’s testimony. Where it is clear that

the informant cannot aid the defense, the government’s interest in

keeping secret [the informant’s] identity must prevail over the

defendant’s asserted right of disclosure.

Id. (citing Roviaro v. United States , 353 U.S. 53, 62 (1957) and United States v.

Sinclair , 109 F.3d 1527, 1538 (10 th Cir. 1997)) (internal quotation marks

omitted); see also United States v. Leahy , 47 F.3d 396, 398 (10 th Cir. 1995)

(stating that the testimony of a confidential informant “must be shown to be

valuable to a defendant; mere speculation is not enough”).

Even if we accept Rubalcava-Hernandez’s arguments at face value, we

cannot conclude that the district court committed reversible error. First and

foremost, the informant’s testimony would have been cumulative. Other

witnesses testified that Rubalcava-Hernandez was not a target of any

investigation and was not known to law enforcement officials prior to the search. 

See , e.g. , ROA, Vol. VI, at 13-14, 20-25, 30-32; Vol. V, at 78, 127-28, 144. 

Furthermore, Rubalcava-Hernandez does not suggest that the informant was

present at the time of the search or otherwise could have provided additional

details about his arrest. We have repeatedly refused to compel disclosure when

an informant “has limited information, was not present during commission of the
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offense, and cannot provide any evidence that is not cumulative or exculpatory.” 

See Gordon , 173 F.3d at 767-68 (collecting cases).

Admission of the Crime Scene Photographs

Rubalcava-Hernandez next contends that he was prejudiced by the

government’s introduction of several photographs of the crime scene. These

photographs, which were taken following Rubalcava-Hernandez’s arrest, showed

the interior of the residence and the items seized during the search. RubalcavaHernandez argues that the district court should have excluded the photographs

because the government did not provide him with copies until the day before

trial. We review a district court’s decision to admit or exclude evidence under an

abuse of discretion standard. United States v. McIntosh , 124 F.3d 1330, 1338

(10th Cir. 1997); see also United States v. Baker , 30 F.3d 1278, 1281 (10 th Cir.

1994) (“Evidentiary rulings are committed to the discretion of the trial court and

are only reviewed for an abuse of that discretion.”) (citation omitted).

Once again, we find no abuse of discretion. We conclude that the

admission of the photographs was not prejudicial. Indeed, Rubalcava-Hernandez

does not even appear in the photographs, which simply depict the crime scene. 

Rubalcava-Hernandez does not dispute that the government delivered police

reports to him nearly two years before trial. These reports described the crime
2

 Rubalcava-Hernandez also asserts that the photographs of the crime scene

“mysteriously disappeared” after the first day of trial. Rubalcava-Hernandez

cannot cite to any evidence in the record to support this claim, and does not

suggest that the government was responsible for the alleged disappearance. The

government suggests (also without citations to the record) that RubalcavaHernandez’s sister removed the photographs from the courthouse during trial. In

any case, the record before this court is wholly insufficient to establish that

Rubalcava-Hernandez was prejudiced by this purported turn of events.

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scene in detail and outlined where each item of evidence was discovered during

the search. Rubalcava-Hernandez’s claims of prejudice thus fall woefully short. 2

The Search of the Residence

Rubalcava-Hernandez maintains that the district court erred by denying his

motion to suppress. He apparently contends that the search of the residence was

invalid under the Fourth Amendment because the officers executing the warrant

had no basis for believing that a human being inside the house had refused them

entry. See Appellant’s Brief at 40-41 (asserting that the shuffling noises officers

heard before coming in to the house “could have been a dog, a bird in a cage, or

the newspaper rustling under the wind” and that none of these objects had the

capacity to refuse the officers’ request for entry). The reasonableness of a search

and seizure under the Fourth Amendment is a question of law subject to de novo

review. United States v. Jenkins , 175 F.3d 1208, 1212 (10 th Cir.), cert. denied

1999 WL 623883 (Oct. 4, 1999). We review findings of fact in connection with
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the denial of a motion to suppress for clear error. Id.

Rubalcava-Hernandez’s objection to the district court’s ruling is without

merit. There is no bright-line rule that officers who have knocked and

announced their presence cannot enter a dwelling to execute a warrant until

someone inside the home expressly refuses to let them in. An implicit or

constructive refusal may be adequate, and even then a “flexible requirement of

reasonableness” governs. Wilson v. Arkansas , 514 U.S. 927, 934 (1995); see

also id. (holding that in some circumstances it may be reasonable for officers to

enter a residence without announcing their presence at all); Richards v.

Wisconsin , 520 U.S. 385, 394 (1997) (stating that “no-knock” entry may be

permissible when the police “have a reasonable suspicion that knocking and

announcing their presence . . . would be dangerous or futile, or that it would

inhibit the effective investigation of the crime”). Here, officers waited 20 to 30

seconds after knocking and announcing their presence before forcing their way

into the house. The district court’s conclusion that no Fourth Amendment

violation occurred was hardly unreasonable. Cf. Jenkins , 175 F.3d at 1211, 1215

(upholding the validity of a search after officers knocked and announced their

presence, received no response, waited 14 to 20 seconds, and then forced open an

interior door with a battering ram).
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Acceptance of Responsibility

Rubalcava-Hernandez lastly contends that the district court should have

reduced his sentence based on his acceptance of responsibility. We review a

district court’s refusal to depart downward under United States Sentencing

Guideline (“U.S.S.G.”) § 3E1.1 for clear error. See United States v. Mitchell ,

113 F.3d 1528, 1533-34 (10 th Cir. 1997) (citing United States v. Gacnik , 50 F.3d

848, 853 (10 th Cir. 1995)), cert. denied , 118 S. Ct. 726 (1998). Because the

sentencing judge “is in a unique position to evaluate the defendant’s acceptance

of responsibility,” his or her determination “is entitled to great deference on

review.” U.S.S.G. § 3E1.1, comment. (n.5).

The district court did not err by refusing to depart downward. RubalcavaHernandez never accepted responsibility for the drug distribution activities that

led to his conviction. “To receive a sentence reduction for acceptance of

responsibility, the defendant must show ‘recognition and affirmative acceptance

of personal responsibility for his criminal conduct.’” Mitchell , 113 F.3d at 1534

(quoting United States v. McAlpine , 32 F.3d 484, 489 (10 th Cir. 1994)). At most,

Rubalcava-Hernandez admitted that he was a “houseboy” at the residence and

that he had his picture taken in front of the drugs. Only in “rare situations” can a
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defendant “clearly demonstrate an acceptance of responsibility for his criminal

conduct even though he exercises his constitutional right to a trial.” U.S.S.G.

§ 3E1.1, comment. (n.2). Rubalcava-Hernandez made no such a showing in this

case. Accordingly, we AFFIRM Rubalcava-Hernandez’s conviction and

sentence.

Entered for the Court

Mary Beck Briscoe

Circuit Judge