U.S. v. Franks

Decision Date12 February 1975
Docket NumberNos. 73--2157,s. 73--2157
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Herman FRANKS, Defendant-Appellant (two cases). UNITED STATES of America, Plaintiff-Appellee, v. Max BRITTON, Defendant-Appellant (two cases). UNITED STATES of America, Plaintiff-Appellee, v. Boyce MITCHELL, Defendant-Appellant. to 73--2160 and 74--1138.
CourtU.S. Court of Appeals — Sixth Circuit

Robert W. Andrews, Erich W. Merrill, Malone & Merrill, Albert Harvey, Boyce Mitchell, Howard T. Paul, Thomas A. Buford, Memphis, Tenn., for defendants-appellants.

Thomas F. Turley, U.S. Atty., Larry E. Parrish, Memphis, Tenn., for plaintiff-appellee.

Before PECK, LIVELY and ENGEL, Circuit Judges.

JOHN W. PECK, Circuit Judge.

Defendants-appellants Franks and Britton were convicted, after a sixteen-day (16-day) jury trial in district court, of causing others on or about June 2, 1971, to commit physical violence to Jett Hair Care Center ('Jett Hair') and Tri- State Beauty Supply ('Tri-State'), two Memphis, Tennessee, businesses whose operation affected commerce, in furtherance of a plan and purpose to obstruct commerce in violation of the Hobbs Act, 18 U.S.C. § 1951(a) (1970), 1 and of 18 U.S.C. § 2 (1970). 2 Franks and Britton also were convicted of aiding and abetting the malicious damaging and attempt to destroy on or about June 2, 1971, by means of an explosive, Jett Hair and Tri-State in violation of 18 U.S.C. § 844(i) (1970) 3 and of 18 U.S.C. § 2 (1970). Defendant-appellant Mitchell, tried together with Franks and Britton, was convicted of knowingly causing on or about June 1, 1971, certain explosives (blasting caps) to be transported in interstate commerce without being licensed to do so in violation of 18 U.S.C. § 842(a)(3)(A) (1970). 4

Together, appellants have asserted no fewer than twenty-five claims on appeal. We have found, however, no reversible error.

Franks, Britton and Mitchell claim that they were misjoined in the indictments and that, in any event, the district judge should have granted their pre-trial motions for separate trials. Franks and Britton add that the district court erred in consolidating the purported Hobbs Act violation, charged in a separate indictment, with the indictment charging them and Mitchell with explosives violations. Counts 1 and 2 of Indictment 72--48 charged Franks and Britton with aiding and abetting, on or about June 2, 1971, the malicious damaging and attempt to destroy by explosives Jett Hair and Tri-State. Count 3 of Indictment 72--48 charged Mitchell with causing on or about June 1, 1971, the interstate transportation of blasting caps from Mississippi to Tennessee. Indictment 72--49 charged Franks and Britton with, on or about June 2, 1971, causing others to commit physical violence to Jett Hair and Tri-State in violation of the Hobbs Act.

Because more than one defendant is involved, Federal Rule of Criminal Procedure 8(b) governs the permissibility of joinder. United States v. Bova, 493 F.2d 33, 35 (5th Cir. 1974); Cupo v. United States, 123 U.S.App.D.C. 324, 359 F.2d 990, 992 (1966), cert. denied, 385 U.S. 1013, 87 S.Ct. 723, 17 L.Ed.2d 549 (1967). Rule 8(b) permits the joining in an indictment of defendants 'alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.' Of course, Rule 8(b) can, and should, be 'broadly construed in favor of initial joinder,' because of the protection Rule 14 affords against unnecessarily prejudicial joinder. United States v. Isaacs, 493 F.2d 1124, 1158 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974); United States v. Friedman, 445 F.2d 1076, 1082--1083 (9th Cir.), cert. denied sub nom., Jacobs v. United States, 404 U.S. 958, 92 S.Ct. 326, 30 L.Ed.2d 275 (1971); Haggard v. United States, 369 F.2d 968, 973 (8th Cir. 1966), cert. denied, 386 U.S. 1023, 87 S.Ct. 1379, 18 L.Ed.2d 461 (1967). As other courts have recognized,

'In determining whether offenses are based on 'acts or transactions connected together,' the predominant consideration is whether joinder would serve the goals of trial economy and convenience; the primary purpose of this kind of joinder is to insure that a given transaction need only be proved once.' Baker v. United States, 131 U.S.App.D.C. 7, 401 F.2d 958, 971 (1968).

Accord, Cataneo v. United States, 167 F.2d 820, 823 (4th Cir. 1948).

Had Indictment 72--48 explicitly alleged that the blasting caps which Mitchell allegedly caused to be transported were intended to be used, or even used, in the Memphis explosions, it could hardly be urged that they were not the 'same transactions.' See United States v. Morgan, 394 F.2d 973 (6th Cir.), cert. denied, 393 U.S. 942, 89 S.Ct. 310, 21 L.Ed.2d 279 (1968) (joinder of defendant charged with receiving and concealing stolen government bonds with defendants charged with 'some aspects of the theft, transportation or sale of the bonds'); United States v. Bryant, 490 F.2d 1372 (5th Cir.), cert. denied sub nom., Impson v. United States, 419 U.S. 832, 95 S.Ct. 57, 42 L.Ed.2d 58 (1974) (joinder of defendant charged with transporting and receiving stolen automobile with defendant charged with receiving such automobile); Kitchell v. United States, 354 F.2d 715 (1st Cir.), cert. denied, 384 U.S. 1011, 86 S.Ct. 1970, 16 L.Ed.2d 1032 (1966) (joinder of defendants charged with transporting stolen cigarettes with defendant charged with receipt of such cigarettes); Caringella v. United States, 78 F.2d 563 (7th Cir. 1935) (joinder of defendants charged with theft with defendant charged with receiving and possessing stolen goods). Though explicitly alleging the connection is preferred practice, Orfield, Joinder in Federal Criminal Procedure, 26 F.R.D. 23, 72--73 (1960), the lack of such an allegation is immaterial where, as here, a connection sufficient for proper joinder is implicit. See United States v. Bally Mfg. Co., 345 F.Supp. 410, 430 (E.D.La.1972) (finding 'participat(ion) in a series of acts' from 'a fair reading' of the indictment); United States v. Florio, 315 F.Supp. 795, 797 (E.D.N.Y.1970) ('participation' found 'in light of' allegations); United States v. Welsh, 15 F.R.D. 189, 190 (D.D.C.1954) (indictment 'deemed' or 'construed' as alleging 'same series of acts or transactions'). See also United States v. Lugo, 269 F.Supp. 757 (E.D.Wis.1967) (indictment 'not susceptible to a reasonable construction' of connected transaction). The alleged interstate transportation predated the explosions by one day, and the alleged transportation was to Tennessee where the explosions occurred. Even if the absence of such explicit allegation invalidated the joinder, the later development of a 'connection' sufficient for Rule 8(b) would permit the district court to consolidate separate indictments, and presumably separated counts, for trial. See King v. United States, 355 F.2d 700, 703 (1st Cir. 1966); Griffin v. United States, 272 F.2d 801 (5th Cir. 1959), modified,273 F.2d 958 (5th Cir. 1960); United States v. Florio, 315 F.Supp. 795, 797 (E.D.N.Y.1970); United States v. Havrick, 153 F.Supp. 696, 698 (D.N.D. 1957).

If Counts 1, 2 and 3 were properly joined in Indictment 72--48, then the charges contained in Indictment 72--49, stemming from the same explosions as the charges contained in Counts 1 and 2 of Indictment 72--48, were properly tried together with the charges contained in Indictment 72--48 because they, being virtually identical to the charges of Counts 1 and 2 of Indictment 72--48, 'could have been joined in a single indictment' with the charges of Indictment 72--48. Fed.R.Crim.P. 13.

Even if Franks, Britton and Mitchell were joined contrary to Rule 8(b), such misjoinder most likely would be harmless error because evidence of the explosions would be admissible against Mitchell in establishing his knowledge that the transportation of the blasting caps would be interstate and because evidence of the interstate transportation of the blasting caps would be admissible against Franks and Britton in establishing the plan or scheme of the bombings. United States v. Weiss, 491 F.2d 460, 466--467 (2d Cir.), cert. denied, --- U.S. ---, 95 S.Ct. 58, 42 L.Ed.2d 59 (1974); United States v. Roselli, 432 F.2d 879, 901 (9th Cir. 1970), cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971); Baker v. United States, 401 F.2d 958, 972--973 (D.C.Cir.1968).

Even assuming that the charges of the indictments were properly joined and that the indictments otherwise would be properly consolidated for trial, Rule 14 still authorizes a separate trial to avoid the undue prejudice of a joint trial. A district court's denial of a severance, however, is reversible only for an abuse of discretion. United States v. Demetre, 461 F.2d 971 (6th Cir. 1972); United States v. Martinez, 428 F.2d 86 (6th Cir.), cert. denied, 400 U.S. 881, 91 S.Ct. 125, 27 L.Ed.2d 119 (1970), 402 U.S. 951 (1971); United States v. Morgan, 394 F.2d 973 (6th Cir.), cert. denied, 393 U.S. 942, 89 S.Ct. 310 (1968).

Franks and Britton primarily claim undue prejudice in that the government was allowed to attempt to prove that Mitchell conspired to kill a government witness. We find, however, no prejudice in that a jury could be expected to segregate such evidence and apply it only to Mitchell. United States v. Bell, 457 F.2d 1231, 1240 (5th Cir. 1972). See United States v. Gimelstob, 475 F.2d 157, 160 (3rd Cir.), cert. denied, 414 U.S. 828, 94 S.Ct. 49, 38 L.Ed.2d 62 (1973); In re Gottesman, 332 F.2d 975 (2d Cir. 1964).

Mitchell's claim of prejudice in a joint trial is somewhat more substantial. He claims that because the statute he was convicted of is rather simple, requiring only that he (1) knowingly, (2) transported or caused to be transported explosive devices in interstate commerce, (3) without being licensed to do so, evidence that the...

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