Kleven v. United States

• Decision Date: 26 February 1957
• Docket Number: No. 15645.,15645.
• Parties: Eddie B. KLEVEN and Maynard W. Maetzold, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

240 F.2d 270 (1957)

Eddie B. KLEVEN and Maynard W. Maetzold, Appellants, v. UNITED STATES of America, Appellee.

No. 15645.

United States Court of Appeals Eighth Circuit.

January 22, 1957.

Rehearing Denied February 26, 1957.

John C. Haugland, Devils Lake, N. D. (Clyde Duffy and Duffy & Haugland, Devils Lake, N. D., were on the brief), for appellants.

Robert Vogel, U. S. Atty., Fargo, N. D. (Ralph B. Maxwell, Asst. U. S. Atty., Fargo, N. D., was with him on the brief), for appellee.

Before GARDNER, Chief Judge, and VAN OOSTERHOUT and WHITTAKER, Circuit Judges.

WHITTAKER, Circuit Judge.

Appellants, Kleven and Maetzold, were severally charged, in separate counts of an indictment, with having violated Section 545, Title 18 U.S.C., in the District of North Dakota, through dealings alleged to have been had by them in and with certain Selkirk seed wheat, known by them to have been unlawfully brought from Canada into the United States. The pertinent provisions of that statute are:

"Whoever fraudulently or knowingly imports or brings into the United States, any merchandise contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported or brought into the United States contrary to law —

"Shall be fined not more than $10,000 or imprisoned not more than five years, or both."

Kleven was charged — in Count I — with having concealed, on December 17, 1954, 60 bushels, and — in Count III — with having purchased, on December 22, 1954, 20 bushels, and — in Count V — with having, on January 22, 1955, facilitated the transportation of 44 bushels, of such wheat, and Maetzold was charged — in Count II — with having purchased, on December 17, 1954, 60 bushels, and — in Count IV — with having purchased, on December 22, 1954, 80 bushels, of such wheat, all with knowledge that the wheat had been unlawfully brought from Canada into the United States, and in violation of the statute.

Appellants moved to dismiss the indictment upon the ground of improper joinder of offenses and defendants. That motion was overruled, and the case was put to trial before a jury.

The jury's verdict found Kleven not guilty on Count I, and found Maetzold not guilty on Count II, but found Kleven guilty on Counts III and V, and found Maetzold guilty on Count IV. The Court, after overruling timely motion for new trial entered judgment upon the verdict, fining appellants $500 each, and they have appealed from that judgment.

The points urged for reversal are (1) that the Court erred in denying their motion to dismiss the indictment for improper joinder of offenses and defendants, (2) that the evidence was not sufficient to support the verdict, (3) that the Court erred in giving a supplemental charge to the jury urging them to reach a verdict, (4) that the Court erred in permitting the jury to disband, after submission of the case to them, without proper admonition, and (5) concealment of possible prejudice by a juror.

Appellants are North Dakota wheat farmers. For years they, as others, had suffered severe crop damage from Black Stem rust. A new variety of wheat, known as Selkirk, and highly resistant to that disease, had been developed in Canada, but, because of the limited supply, the Canadian government, in August, 1954, imposed an embargo on its exportation, and it was, therefore, difficult to obtain in North Dakota.

There was evidence that, following a conference between one Laliberte, a Canadian farmer, and appellants, at Devil's Lake, North Dakota, Laliberte, in Canada, concealed 60 bushels of sacked Selkirk wheat in a truckload of baled flaxstraw, and, on December 17, 1954, brought it through customs at a port-of-entry between Canada and the United States, declaring the entire load to be flaxstraw, and without disclosing the presence of the Selkirk wheat, and proceeded to Kleven's farm near Devil's Lake, where, in the presence of Kleven and Maetzold, Laliberte unloaded the flaxstraw and then transported the 60 bushels of Selkirk wheat to Maetzold's farm where the latter bought it for $10 per bushel. These were the claimed overt acts upon which Counts I and II of the indictment were based, but, as stated, the jury found appellants not guilty on those counts.

There was further evidence that later Laliberte, in Canada, concealed 100 bushels of sacked Selkirk wheat in another truckload of baled flaxstraw, and, on December 21, 1954, brought it through customs at a port-of-entry between Canada and the United States, declaring the entire load to be flaxstraw, and without disclosing the presence of the wheat, and proceeded to Kleven's mother's farm, where, in the presence of Kleven and Maetzold, Laliberte unloaded the flaxstraw, and sold 20 bushels of the Selkirk wheat to Kleven at $10 per bushel (who placed it in his pick-up truck and drove it to his own farm where he placed it in a haymow and covered it with hay and a tarpaulin), and sold the remaining 80 bushels to Maetzold for $10 a bushel who then placed the same in his truck and took it to his farm and placed it in a coulee and covered it with straw). These were the claimed overt acts upon which Counts III and IV of the indictment were based.

There was evidence, too, that subsequently, Laliberte, in like manner, illegally transported from Canada into the United States additional Selkirk wheat which he sold to other wheat farmers in the vicinity of Devil's Lake, and on January 22, 1955, Kleven, by means of his own truck, caused 44 bushels of such wheat to be transported to the farm of a purchaser located in the community. This is the claimed overt act upon which Count V of the indictment was based.

We will now deal with the points relied upon for reversal in the order they are raised.

First, appellants complain that the Court erred in overruling their motion to dismiss the indictment for improper joinder of offenses and defendants. There is no merit in this contention, because Rule 8 of F.R.Cr.P., 18 U.S.C. expressly provides that separate offenses may be charged in separate counts of a single indictment if, as here, they are of similar character or are based on the same act or transaction or upon transactions which are connected or that constitute a common plan; and that rule also provides that several defendants may be charged in separate counts of a single indictment if, as here, the defendants are alleged to have participated in the same series of acts or transactions constituting an offense or offenses. Because of that Rule and these circumstances, there was no improper joinder of offenses and defendants, in this case, and the Court did not err in overruling appellants' motion to dismiss. Moreover, if the indictment had been subject to attack for misjoinder of offenses and defendants — which we think it was not — the proper remedy would have been a motion for a severance under Rule 14 of F.R.Cr.P., rather than a motion to dismiss the indictment. Finnegan v. United States, 8 Cir., 204 F.2d 105, 109.

Second, appellant...