434 F.2d 494 (D.C. Cir. 1970), 22721, United States v. Wilson

Docket Nº:22721, 22722.
Citation:434 F.2d 494
Party Name:UNITED STATES of America v. Charles WILSON, Jr., Appellant. UNITED STATES of America v. Charles ROBINSON, Appellant.
Case Date:June 11, 1970
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 494

434 F.2d 494 (D.C. Cir. 1970)

UNITED STATES of America

v.

Charles WILSON, Jr., Appellant.

UNITED STATES of America

v.

Charles ROBINSON, Appellant.

Nos. 22721, 22722.

United States Court of Appeals, District of Columbia Circuit.

June 11, 1970

Argued Jan. 22, 1970.

Page 495

Mr. Julius Schlezinger, Washington, D.C., with whom Mr. Mario Escudero, Washington, D.C. (both appointed by this court) was on the brief, for appellant in No. 22, 721.

Mr. James M. Johnstone, Washington, D.C., with whom Mr. John M. Greacen, Washington, D.C. (both appointed by this court) was on the brief, for appellant in No. 22, 722.

Mr. Warren R. King, Asst. U.S. Atty., with whom Messrs. Thomas A. Flannery, U.S. Atty., John A. Terry and Victor W. Caputy, Asst. U.S. Attys., were on the brief, for appellee. Messrs. David G. Bress, U.S. Atty., at the time the record was filed, and Roger E. Zuckerman, Asst. U.S. Atty., also entered appearances for appellee.

Before FAHY, Senior Circuit Judge, and ROBINSON and MacKINNON, Circuit judges.

MacKINNON, Circuit Judge:

A Peoples Drug Store in Washington was held up and robbed by three men a few minutes before the 10 P.M. closing time. Wilson, Robinson and Winslow were later indicted and convicted of the offenses involved and they appeal.

Page 496

Shortly after the oral argument in this court, Winslow moved to dismiss his appeal and we granted the motion. The remaining appellants attack the procedure by which the indictment was returned and contend they were prejudiced by a refusal of the trial court to grant them separate trials. Since we fail to find any resulting prejudice we affirm their convictions.

I

The attack upon the indictment is made for the first time on appeal. It consists, in effect, of a charge that the indictment was not that of a grand jury as required by the Fifth Amendment. 1 Under the longtime procedure that was followed in the office of the United States Attorney a 'presentment' was first returned by the grand jury only charging the three defendants with violations of the statutes by name. 2 Thereafter the specific indictment was drafted by the United States Attorney, signed by the grand jury foreman and filed 'in open court' without submitting it to the grand jury for approval.

A challenge by a defendant, based upon alleged defects in the institution of the prosecution or in the indictment, is required under the Federal Rules of Criminal Procedure to be raised by motion before trial. 3 Since the attack upon the indictment was not presented until the appeal to this court, we dispose of it on the ground that it was not timely brought. We also rely upon our decisions in Gaither v. United States, 134 U.S.App.D.C. 154, 174, 413 F.2d 1061, 1081 (1969). In Gaither we finally decided that indictments brought before April 8, 1969 would not be subject to challenge for the procedural defect resulting from the 'presentment' practice. Accordingly, since the indictment in this case was returned, and the appellants were tried and sentenced in 1968, all before our decision in Gaither, appellants have not brought themselves within the class of those eligible to challenge the indictment. It is proper to provide that a decision, such as Gaither, shall not be applied retroactively. Stovall v. Denno, 388 U.S. 293, 296-301, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Johnson v. New Jersey, 384 U.S. 719, 726-727, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Tehan v. United States ex rel. Shott, 382 U.S. 406, 409-410, 86 S.Ct. 459, 15 L.Ed. 453 (1966); Linkletter v. Walker, 381 U.S. 618, 622-629, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).

II

Appellants' second contention is that error was committed by the trial court (a) in not granting a motion for a separate trial made by Robinson in advance of trial, and (b) in not granting a severance because of alleged prejudice to both Wilson and Robinson which each contends developed at a certain stage in the trial.

Page 497

The material facts relevant to the severance questions follow. On November 30, 1967, a Peoples Drug Store at 2066 Rhode Island Avenue, N.E. was held up and robbed by three armed men. The employees and a customer were forced to lie down on the floor and the robbers took money, drugs (some narcotics) and a few blank travellers checks. The robbers (according to testimony of one of the defendants) attempted to flee in what later developed was a stolen automobile, the car was chased at dangerous speeds by the police who responded to radio messages, and the occupants were apprehended near the automobile when it skidded and crashed. Government testimony identified the three defendants as the occupants of the car although some were chased a short distance before they were arrested. Robinson was apprehended and arrested in close proximity to the car.

Wilson and Robinson both took the witness stand in their own defense. 4 Wilson testified he was abducted outside the entrance to the drug store by 'two men' 5 who forced him into the back seat of the automobile while they fled. Robinson testified he just happened to be walking by the scene of the crash, slipped to the ground trying to avoid being hit by the car as it skidded and was apprehended as he lay on the ground beside the car. In testifying in their own behalf both Wilson and Robinson described their activities prior to their arrest in considerable detail. We omit mention of their testimony as to these activities except as they are related to Louie's Billiard Parlor around which testimony appellants now base their claim of prejudicial joinder.

Wilson testified that on the night in question he had left his home about 7 P.M., gone to Louie's where he expected to meet a friend (who never showed up), he had been there many times previously, he arrived there about 7:30 P.M., the pool hall had six or eight pool tables, a few people were in there, he did not recall talking to anyone while he was in there, he did not know or recognize any of the people who were around there at the time, he played pool by himself until about 9:25 or 9:30 (also variously stated as 9:30 or 9:35 and about 9:29), then left to catch a bus, caught it and later got off to go to the Peoples Drug Store and when he started to enter such store he was met by the two robbers. They told him to accompany them in their getaway car. 'So I just did what they said.' He was not sure that he saw any weapons or guns. 'I felt something in my back. * * * It probably was (a weapon or gun).'

Robinson testified that he had been in Louie's Billiard Parlor for twenty minutes that evening, he had been there before; he played pool that evening by himself for fifteen minutes, he did not see Wilson there; did not remember seeing him there, he could not 'rightly tell' the time he was there, he called his sister 'around 9:30 (from Louie's), so it had to be around nine or ten, ' he 'left the pool hall anywhere between a quarter to ten or twenty five minutes to ten-- somewhere in between there, maybe a quarter to ten, ' started walking up Rhode Island Avenue and when he reached First Street and Rhode Island Avenue a car turned the corner and in order to try to avoid being hit, he slipped and fell on the ground and in this position he was arrested for robbery of the drug store. The car he referred to was the one that Government testimony described as being driven by Winslow and also as carrying Wilson and Robinson.

In closing argument the attorney for the United States commented on the Louie's Billiard Hall testimony of Wilson and Robinson as follows:

Then, members of the jury, there is a coincidence that just comes to my mind. When explaining his activities

Page 498

that night, Wilson says that he winds up, that he was at a pool room, Louie's on T Street, and he left there around 9:30 or thereabouts, and the coincidence, members of the jury, at that same pool room is Robinson. And Robinson is one of the individuals who is also arrested at that particular time, arrested by Officer Cook. What does counsel for Robinson say, members of the jury. He says, lo and behold, it was a desperate act upon the part of Cook. He had to arrest a third person and, therefore, he arrested this individual.

With the record in this state, appellant Robinson asserts that the trial court committed reversible error in failing to grant his pretrial motion for severance. Both appellants also contend error was committed by the trial court in failing to declare a mistrial and grant separate trials during the progress of the trial when it allegedly became apparent that each was being prejudiced by the testimony of the other with respect to their presence at Louie's on the evening in question.

A. The Pretrial Motion

We consider Robinson's pretrial motion first. The three alleged participants in these offenses were jointly indicted for the crimes of robbery (D.C.Code 22-2901), assault with a dangerous weapon (D.C. Code 22-502), assault on a member of the police force (D.C.Code 22-505(a)), unauthorized use of a vehicle (D.C.Code 22-2204) and carrying a dangerous weapon (D.C.Code 22-3204).

It is obvious from a mere reading of Rule 8 of the Federal Rules of Criminal Procedure 6 that given the facts here stated, and which the jury later found to be true in every respect, that it is proper to join both the offenses and the defendants in a joint indictment. The offenses are based on two or more connected acts, constituting part of a common scheme and plan and the appellants are alleged to have participated in the same series of acts constituting the offenses. Such being the case the defendants may be joined in one or more counts together or separately and all the defendants need not be charged in each count. The joinder is also...

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