United States v. Fairchild, 106-70

• Decision Date: 25 January 1971
• Docket Number: 107-70.,No. 106-70,106-70
• Citation: 435 F.2d 972
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony William FAIRCHILD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William E. LAMBERT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

435 F.2d 972 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Anthony William FAIRCHILD, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. William E. LAMBERT, Defendant-Appellant.

Nos. 106-70, 107-70.

United States Court of Appeals, Tenth Circuit.

December 29, 1970.

Rehearings Denied January 25, 1971.

John E. Green, Asst. U. S. Atty. (William R. Burkett, U. S. Atty., on the brief), for plaintiff-appellee.

Judd L. Black, Oklahoma City, Okl., for defendant-appellant Anthony William Fairchild.

Norman A. Smith, Oklahoma City, Okl. (Richard A. Procter, Oklahoma City, Okl., on the brief), for defendant-appellant William E. Lambert.

Before LEWIS, Chief Judge, McWILLIAMS, Circuit Judge, and BRATTON, District Judge.

McWILLIAMS, Circuit Judge.

Fairchild and Lambert were jointly charged in a three count indictment with the unlawful receipt and possession of stolen mail matter and conspiracy. More specifically, in Count 1 of the indictment Fairchild and Lambert were charged with unlawfully receiving, concealing and having in their possession on or about May 26, 1969, the contents of a certain bag for mail which had theretofore been stolen, such contents being 1800 shares of Standard Oil Company of Indiana common stock and 7 described U. S. Smelting, Mining and Refining debenture bonds, knowing that such stocks and bonds had been stolen, all in violation of 18 U.S.C. §§ 2 and 1708. Included in Count 1 was the allegation that Fairchild and Lambert each aided and abetted the other in his receipt and possession of the described stocks and bonds. By Count 2 Fairchild and Lambert were similarly charged with unlawfully receiving and possessing on or about June 5, 1969, certain other described stocks which had been stolen from a mail receptacle or authorized depository for mail, and which they knew had been so stolen. Count 3 charged the two defendants during the period of time from May 12, 1969, to June 5, 1969, with conspiring to commit certain described criminal offenses against the United States.

Fairchild was convicted by a jury on all three counts and the sentences thereafter imposed are to be served concurrently. Lambert was acquitted on Count 1, but convicted on Counts 2 and 3 and the sentences imposed on him are also to be served concurrently.

Fairchild contends that because of some fifteen alleged errors on the part of the trial court he was deprived of a fair and impartial trial and that his conviction should therefor be set aside in the interest of doing justice. Lambert argues that the trial court erred in some six different particulars, four of which are included in Fairchild's list of alleged errors. Many of the matters urged upon us were not in any way, shape or form presented to the trial court. Ordinarily matters not urged to the trial court will not be considered by us on appeal. Fed. R.Crim.P. 51. Troutman v. United States, 100 F.2d 628 (10th Cir.). Recognizing that under Fed.R.Crim.P. 52(b) we may nonetheless notice plain errors or defects affecting a defendant's substantial rights even though they were not brought to the attention of the trial court, in the instant case we elect not to notice those matters not presented to the trial court for the reason that none constitutes plain error affecting any substantial right of either Fairchild or Lambert. Certain matters presented to the trial court, however, do merit discussion.

Several weeks prior to trial Fairchild and Lambert, who will sometimes be referred to collectively as the defendants, filed a motion for a continuance of the trial date. The primary reason for so asking was the belief that because of so-called massive, prejudicial pretrial publicity the defendants could not receive a fair trial, and a secondary reason was the fact that counsel desired additional time to prepare for trial. This motion was granted, and the trial was set over one week. Defendants now argue, however, that it was error for the trial court to grant them only a one-week continuance.

A motion for continuance is addressed to the sound discretion of the trial court, and even the denial of such a motion will not constitute prejudicial error unless there be an abuse of that discretion. Leino v. United States, 338 F.2d 154 (10th Cir.). In the instant case there was no such abuse of discretion. There was no showing of massive, prejudicial pretrial publicity such as to bring it within the ambit of Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600. As a matter of fact, as was the situation in Welch v. United States, 371 F.2d 287 (10th Cir.), cert. denied 385 U.S. 957, 87 S.Ct. 395, 17 L.Ed.2d 303, none of the jurors who served had ever heard of the case or read about it, and of all the jurors examined on voir dire, only two had ever heard of the case and they were peremptorily challenged.

The showing that counsel needed more time to prepare for trial was also insufficient. Counsel for each of the defendants had been in the case for many weeks prior to trial and the record of the trial itself indicates that counsel were indeed quite ready. There was no error in only granting defendants a one-week continuance.

Lambert filed a motion for severance, which was denied, and such is now claimed to constitute a ground for reversing his conviction. The grounds contained in this motion were: the "insurmountable difficulty" in distinguishing Lambert's actions from those of Fairchild's; that evidence "may be" introduced against Fairchild which would not be admissible against Lambert; and that evidence "may be" introduced by Fairchild which would not be admissible against Lambert if he were granted a separate trial.

A motion for a severance is also addressed to the sound discretion of the trial court. United States v. Rodgers, 419 F.2d 1315 (10th Cir.). Fed.R.Crim.P. 8(b) permits the joinder of two defendants in the same indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. The allegations of the indictment in the instant case meet that requirement, and the prosecution's evidence produced upon trial amply...