398 F.2d 757 (D.C. Cir. 1968), 20598, McHale v. United States

Docket Nº:20598, 20600.
Citation:398 F.2d 757
Party Name:Joseph C. McHALE, Appellant, v. UNITED STATES of America, Appellee. Martin J. McHALE, Appellant, v. UNITED STATES of America, Appellee. Robert L. McHALE, Appellant, v. UNITED STATES of America, Appellee.
Case Date:June 11, 1968
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 757

398 F.2d 757 (D.C. Cir. 1968)

Joseph C. McHALE, Appellant,

v.

UNITED STATES of America, Appellee.

Martin J. McHALE, Appellant,

v.

UNITED STATES of America, Appellee.

Robert L. McHALE, Appellant,

v.

UNITED STATES of America, Appellee.

Nos. 20598, 20600.

United States Court of Appeals, District of Columbia Circuit.

June 11, 1968

Argued Jan. 25, 1968.

Mr. Carl L. Taylor, Washington, D.C. (appointed by this court), with whom Mr. Robert C. Maynard, Washington, D.C., was on the brief, for appellant in No. 20, 598.

Mr. G. Nathan Calkins, Washington, D.C. (appointed by this court), for appellant in No. 20, 599.

Mr. Francis C. Browne, Washington, D.C. (appointed by this court), for appellant in No. 20, 600.

Mr. Lawrence P. Cohen, Atty. Department of Justice, of the bar of the Court of Appeals of New York, pro hac vice, by

Page 758

special leave of court, with whom Messrs. David G. Bress, U.S. Atty., and Frank Q. Nebeker, Asst. U.S. Atty., were on the brief, for appellee.

Before BAZELON, Chief Judge, and WRIGHT and TAMM, Circuit judges.

BAZELON, Chief Judge:

Appellants, three brothers, were among several defendants tried jointly and convicted of mail fraud in connection with the operation of a debt consolidation business. The primary contentions of Robert and Joseph McHale are that the trial court should have granted their motions for severance. Joseph McHale also argues that the trial court improperly failed to instruct the jury on his theory of the case. Martin McHale, youngest of the brothers, contends that there was insufficient evidence to demonstrate his participation in the scheme and that the prosecution improperly relied on events subsequent to the last mailing named in the indictment.

I

The seven defendants in this case were all charged with participating in a scheme to defraud the customers of two debt consolidation companies. The Supreme Court has recognized that when several people are tried together there is a danger that adverse evidence against some of the defendants will improperly rub off on the co-defendants. In Blumenthal v. United States, 332 U.S. 539, 559-560, 68 S.Ct. 248, 257, 92 L.Ed. 154 (1947), the Court said 'Perhaps even at best the safeguards provided by clear rulings on admissibility, limitations of the bearing of evidence as against particular individuals, and adequate instructions, are insufficient to ward off the danger entirely. It is therefore extremely important that those safeguards be made as impregnable as possible.'

In United States v. Kelly, 349 F.2d 720 (1965), the Second Circuit held that in some cases an even stronger safeguard-- severance-- might be required. Kelly involved fraudulent stock transactions. The evidence against one of the defendants (Shuck) was far less extensive and far less incriminating than that against the other two. The court concluded that Shuck was inevitably prejudiced by the introduction of evidence against the codefendants '(which) must have stamped them in the eyes of the jurors as unscrupulous swindlers of the first rank.' 349 F.2d at 759.

To obtain severance under Kelly a defendant must at the very least prove that the evidence against his co-defendants is far more damaging than the evidence against him. It may well be that this is too rigid a requirement. It may well be that the dangers in these joint trials are so great that severance should be granted almost as a matter of course. But neither Kelly nor any other case goes that far. And careful consideration of the record convinces us that neither Robert nor Joseph McHale was entitled to severance under Kelly.

Joseph McHale contends also that the trial court improperly neglected to employ a safeguard recommended by the Supreme Court-- adequate instructions. See Blumenthal, supra, 332 U.S. at 559, 68 S.Ct. 248. At trial Joseph submitted a written instruction stating at the outset that 'Joseph McHale's defense is not that there was no scheme among any of the defendants. Rather, his defense is that the evidence shows he was not a party to any scheme, if there was one.' The trial court gave no individual instruction for any defendant. Instead it advised the jury that: 'The theory of the defense...

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