495 F.2d 626 (5th Cir. 1974), 73-2181, United States v. Gentile

Docket Nº:73-2181.
Citation:495 F.2d 626
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Mike GENTILE and George Marquart, Defendants-Appellants.
Case Date:June 07, 1974
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 626

495 F.2d 626 (5th Cir. 1974)

UNITED STATES of America, Plaintiff-Appellee,

v.

Mike GENTILE and George Marquart, Defendants-Appellants.

No. 73-2181.

United States Court of Appeals, Fifth Circuit.

June 7, 1974

Page 627

Stephen K. Johnson, Gainesville, Fla. (Court-appointed), for Gentile.

Carol Wild Scott, Gainesville, Fla. (Court-appointed), for Marquart.

Catherine Wings Slocum, Palmetto, Fla., for defendants-appellants.

Robert l. Crongeyer, Jr., Asst. U.S. Atty., William H. Stafford, Jr., U.S. Atty., Pensacola, Fla., for plaintiff-appellee.

Before GODBOLD, SIMPSON and INGRAHAM, Circuit Judges.

INGRAHAM, Circuit Judge:

Mike Gentile and George Marquart were jointly tried and convicted under a three count indictment for distribution and conspiracy to distribute certain proscribed substances in violation of 21 U.S.C.

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§ 841(a)(1). 1 On appeal Gentile argues that, because this was a multiple defendant trial, the unrelated offense alleged in Count 3 of the indictment charging only Marquart was improperly joined under Rule 8(b) 2 with Counts 1 and 2, that even if there was proper joinder under 8(b) the trial court abused its discretion in denying a severance under Rule 14, 3 and that the trial court improperly refused to compel the prosecution to disclose where a confidential informer, the identity of whom was known, could be located. While Marquart, like Gentile, argues that the prosecution should have been compelled to disclose the location of the informer, he also argues that the court should have granted his motion for new trial. The motion for new trial is based on the prosecution's alleged suppression of an informer's testimony in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and related cases, or alternately on the discovery of new evidence, the informer's testimony. Concluding that the unrelated offense charged in Count 3 was misjoined with the first two counts in a multiple defendant trial, we reverse Gentile's conviction, but finding the other contentions meritless, we affirm as to Marquart.

While the testimony introduced at trial was conflicting in many particulars, the events giving rise to this case, viewed most favorably to the government, can generally be reconstructed as follows. 4 On October 23, 1972, Susan Jensen Parker, a confidential government informer, picked up Marquart while he was hitchhiking in Gainesville, Florida. According to Parker's testimony at trial, a conversation ensued between them in which Marquart stated that he was on his way to the library to make a contact for the purchase of a quantity of cocaine. He asked Parker if she was interested in purchasing any, and she replied that she was not, but she knew some persons that would be interested and would therefore accompany him to complete the transaction. After going to several places in an attempt to locate persons who sell drugs, Marquart and Parker went to 116 N.W. 9th Street, the residence of defendant Gentile and Nanny Crocker, a woman who shared

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the house with Gentile, but the two apparently were not romantically involved. 5 Parker testified that, although she did not smoke marijuana, Marquart, Gentile and Crocker did so 6 while all four of them discussed the possibility of obtaining various illegal drugs. It appears that, while no narcotics were currently available, there was a possibility that drugs could be obtained later in the day, and according to Parker's testimony Gentile and Marquart were to get back together then.

Marquart and Parker left Gentile's place and went to Parker's motel room, where they met with Parker's husband, Deke Jensen, also a confidential informer, and Danny Lane, a government agent. Again, the possibility of obtaining narcotics appears to have been the primary topic of conversation. Thereafter, Marquart, Parker, Jensen and Lane left the motel room by car, supposedly to meet with Gentile. On the way they stopped to get gasoline and noticed Gentile walking by the station. Marquart got out of the car and, accompanied by Gentile, walked around to the back of the station. When they returned, all five persons drove, under the directions of both Gentile and Marquart, 7 to 406 N.E. 1st Avenue. Both Gentile and Marquart got out of the car and, although the testimony is conflicting as to whether only Marquart or both of them went inside, 8 when they returned Marquart had ten tablets of what was thought to be THC, but on analysis turned out to be PCP, which is also a federally proscribed substance.

On November 11, 1972, Lane was notified that Marquart had made arrangements for a sale of LSD. Lane testified that he and Marquart went to the house where Gentile and Crocker lived and there purchased the LSD. Significantly, only Marquart went inside to obtain the drug, and Lane testified that he did not know from whom the purchase was actually made or whether Gentile was even at home at the time of the purchase. Gentile testified that, not only was he not at the residence when the sale occurred, he had nothing to do with the narcotics, and Marquart testified that he purchased the LSD from Crocker. There is not evidence that Crocker conducted the transaction on Gentile's behalf. Subsequently, Marquart allegedly made an additional sale of LSD on November 14.

Based on these three transactions, the defendants were charged in a four count indictment. Specifically, Count 1 charged Gentile and Marquart with conspiring to distribute a controlled substance, the overt acts being the sale of PCP on October 23, 1972. Count 2 charged both defendants with the actual distribution of the PCP, Count 3 charged only Marquart with the distribution of LSD on November 11, 1972, and Count 4 charged Marquart with the distribution of LSD on November 14. Prior to trial Gentile moved for severance of Counts 3 and 4 on the basis of

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misjoinder under 8(b), or for severance of defendants or offenses under Rule 14, and the trial court granted the motion as to Count 4 but not 3. Proceeding to trial on the first three counts, the jury found the defendants guilty as charged.

We turn first to Gentile's argument that the trial court improperly refused to either sever Count 3 from the trial below, or sever the defendants for trial. Because the offense in the third count of the indictment, in which only Marquart was charged, is so unrelated to the offenses charged in Counts 1 and 2, in which both defendants were charged, he argues that joinder of his and Marquart's trials under all three counts seriously prejudiced him. While recognizing that all defendants jointly tried need not be named in each and every count of the indictment, Gentile urges that the jury might have determined his guilt based merely on his association with Marquart or evidence that was admitted at trial against Marquart under Count 3.

Rule 8(b) outlines the standard governing permissible joinder of multiple defendants, providing that various defendants may be tried simultaneously '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.' F.R.Crim.P. 8(b). The purpose of the rule is, in the interest of convenience and expediency, to encourage joint trials while at the same time limiting as much as possible the admission at trial of prejudicial evidence against a defendant. Moore, Federal Practice, P8.06(2), at 8-36 (1965).

Since the substantive offense covered by Count 2 of the indictment is plainly not the 'same act or transaction' as that alleged in Count 3, our initial concern is whether these two offenses constitute a series of events within the meaning of the rule. Whether or not separate offenses are part of a 'series of acts or transactions' under 8(b) depends in turn on the relatedness of the facts underlying each offense. King v. United States,355 F.2d 700 (1st Cir., 1966); Haggard v. United States, 369 F.2d 968 (8th Cir., 1966); C. Wright, Federal Practice and Procedure, § 144, at 232 (1969). While criminal acts of several defendants may be similar in nature, these acts cannot be properly joined in a multiple defendant trial if different facts and circumstances must be established to support the alleged violations. But when the facts underlying each offense are so closely connected that proof of such facts is necessary to establish each offense, joinder of defendants and offenses is proper. For example, if one person is charged with theft of goods in interstate commerce and a second person is charged with receiving goods that were stolen in interstate commerce, the two offenders may be joined for trial because the facts that must be established to support a violation of each offense are basically the same. They form a series of acts or transactions. See Kitchell v. United States, 354 F.2d 715 (1st Cir., 1965), cert. den., 384 U.S. 1011, 86 S.Ct. 1970, 16 L.Ed.2d 1032 (1966); Moore, Federal Practice, P8.06(2), 8-32 (1965). In this situation joinder of both offenses for trial fulfills the purpose underlying the rule because it avoids duplication of time and effort of both the prosecution and the courts and minimizes the prejudice to the defendants. The government has to prove and the court must listen to the evidence supporting the offenses only once, and the defendants are not prejudiced because essentially the same proof must be established with regard to each defendant whether or not they are jointly or severally tried. Moore, Federal Practice, P8.06(1) (1965).

This analysis illustrates that the criminal activity charged against Marquart in Count 3 of the indictment was not part of a 'series of acts or transactions' under 8(b). The proof required to establish the sale of PCP on October 23, as alleged in Count 2, is entirely different from the proof required to establish the sale of LSD on November 11, as alleged in Count 3. The two...

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