546 F.2d 658 (5th Cir. 1977), 76-1543, United States v. Levine

Docket Nº:76-1543.
Citation:546 F.2d 658
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Sidney LEVINE and MPD Film Productions, Inc., Defendants-Appellants.
Case Date:February 07, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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546 F.2d 658 (5th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,


Sidney LEVINE and MPD Film Productions, Inc., Defendants-Appellants.

No. 76-1543.

United States Court of Appeals, Fifth Circuit

February 7, 1977

Rehearing Denied May 2, 1977.

See 551 F.2d 687.

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Joel Hirschhorn, Miami, Fla., Ralph J. Schwarz, Jr., New York City, Herald Price Fahringer, Buffalo, N. Y., for defendants-appellants.

Robert W. Rust, U. S. Atty., J. Daniel Ennis, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TUTTLE, CLARK and RONEY, Circuit Judges.

CLARK, Circuit Judge:

Defendants, Sidney Levine and MPD Film Productions, Inc. (MPD), appeal from judgments of conviction and sentences entered by the district court for conspiracy and interstate shipment of obscene films. Because the indictment charged separate, distinct, and unrelated offenses by different defendants in contravention of Federal Rule of Criminal Procedure 8(b), we reverse and remand for a new trial. Since the cause must be tried again, we also reach and decide other assignments of error likely to recur.

In Count I of a five-count indictment, returned against Charles Solomon Abrams, Emile Alan Harvard, Sidney Levine, Raphael Jesus Remy, Cinecraft Industries Corp. (Cinecraft), MPD, and Pictograph Corporation (Pictograph), a United States Grand Jury charged all indictees with conspiracy under 18 U.S.C. § 371 (1970) to commit the substantive offenses alleged in the indictment. Counts II and III charged Abrams, Harvard, Remy, and Pictograph with interstate transportation of obscene film by common carrier under 18 U.S.C. § 1462 (1970) and interstate transportation of obscene film for sale and distribution under 18 U.S.C. § 1465 (1970). Counts IV and V charged Harvard, Levine, Remy, Pictograph, and MPD with these same substantive offenses.

Before the jury trial of Abrams, Levine, and MPD commenced, the charges against Cinecraft and Pictograph were dismissed. Remy and Harvard pled guilty to the conspiracy count. The district court entered a judgment of acquittal as to Abrams at the close of the government's case; the jury returned verdicts of guilty on all three counts against Levine and MPD.

Rule 8 of the Federal Rules of Criminal Procedure governs joinder of offenses and of defendants in a single indictment. A claim of misjoinder under the rule is reviewable on appeal as a question of law. United States v. Park,531 F.2d 754, 760 (5th Cir. 1976); accord, United States v. Marionneaux,514 F.2d 1244, 1248 (5th Cir. 1975); Tillman v. United States, 406 F.2d 930, 933 n. 5 (5th Cir.), vacated and remanded in part on other grounds, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969). Joinder of offenses or defendants requires a balancing of the right of an accused to a fair trial and the public's interest in the efficacious administration of justice. United States v. Gentile, 495 F.2d 626, 630 (5th Cir. 1974). We have described rule 8 as an " 'attempt to set the limits of tolerance,' " for this process. United States v. Bova, 493 F.2d 33, 36 (5th Cir. 1974), quoting, King v. United States, 355 F.2d 700, 703 (1st Cir. 1966). Accordingly, misjoinder under the rule is prejudicial per se ; if the limits of the rule are exceeded, a grant of severance is mandatory. United States v. Marionneaux, 514 F.2d at 1248; United States v. Bova, 493 F.2d at 35-36.

Subdivision (a) of rule 8 applies when a single defendant is charged with multiple offenses. Our concern here is with the requirements of subdivision (b), which governs cases involving multiple defendants. United States v. Park, 531 F.2d at 760 n.4; United States v. Marionneaux, 514 F.2d at 1248-49; United States v. Gentile, 495 F.2d at 628 n. 2; United States v. Bova, 493 F.2d at 35. Rule 8(b) provides:

Joinder of Defendants. Two or more defendants may be charged in the same indictment or information 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. Such defendants may

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be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

In United States v. Marionneaux, 514 F.2d at 1248-49, we defined the phrase "the same series of acts or transactions" as requiring a "substantial identity of facts or participants" between two offenses to make rule 8(b) joinder proper.

If Counts II and III had been the only counts charged in the indictment, their joinder would have been proper. The same would hold true if Counts IV and V had been the only counts charged. Since the same persons were charged in each pair of counts, substantial identity would exist among the alleged participants. Much of the evidence offered to prove the section 1462 offense would go to establish the section 1465 offense. Consolidating such charges against more than one defendant under rule 8(b) facilitates prosecution by requiring the government to prove its case only once. United States v. Gentile, 495 F.2d at 630. Of course the possibility exists that evidence introduced to prove one count in an indictment will spill over and taint the case on another count. A jury might intertwine the evidence and thereby improperly lessen a defendant's prospects of being acquitted as to a joint count. Submission of proper, limiting instructions to the jury, accompanied by a strict charge as to what testimony it may and may not consider, and the continuing obligation of a trial court to grant a severance under rule 14 of the Federal Rules of Criminal Procedure if prejudice to any defendant appears, are considered to be adequate safeguards against these prospects. Schaffer v. United States, 362 U.S. 511, 515-16, 80 S.Ct. 945, 947-48, 4 L.Ed.2d 921 (1960). Although "some prejudice almost necessarily results . . . when several defendants are jointly charged with a single offense or related offenses," Cupo v. United States, 123 U.S.App.D.C. 324, 359 F.2d 990, 993 (1966), cert. denied, 385 U.S. 1013, 87 S.Ct. 723, 17 L.Ed.2d 549 (1967), the presumptive benefits to the public as the result of the rule 8(b) joinder are thought to outweigh the possibility of prejudice accruing to the several defendants. United States v. Bova, 493 F.2d at 36-37.

Counts II, III, IV, and V could not have been charged in a single indictment, however, because the requisite substantial identity of facts or participants necessary for proper rule 8(b) joinder would no longer be present. The sole connection between the offenses charged in Counts II and III and the offenses charged in Counts IV and V are: (1) their mutual identity and (2) the presence of Harvard, Remy, and Pictograph. Otherwise Counts II and III on the one hand and Counts IV and V on the other arise from different factual matrices, implicating different defendants at different times. United States v. Gentile, 495 F.2d at 630-31; Compare United States v. Strand, 517 F.2d 711, 713-14 (5th Cir.), cert. denied, 423 U.S. 998, 96 S.Ct. 428, 46 L.Ed.2d 373 (1975), with United States v. Marionneaux, 514 F.2d at 1248-49.

When unrelated transactions involving several defendants are joined together, " '(i)t cannot be said . . . that all the defendants (would not be) . . . embarrassed and prejudiced in their defense, or that the attention of the jury may not have been distracted to their injury in passing upon the distinct and independent transactions." United States v. Bova, 493 F.2d 36, quoting McElroy v. United States, 164 U.S. 76, 81, 17 S.Ct. 31, 33, 41 L.Ed. 355 (1896). Especially when, as here, the nexus between the separate groups is the defendants common to each and a mutual identity of the counts charged, the transference of guilt from one group of defendants to the other is inexorable. The result is an inherent prejudice that no form of limiting instructions or cautionary charge could absolve, and joinder of the four counts would be improper. Indeed, the government has not attempted to establish that a bridge sufficient to satisfy rule 8(b) joinder existed between the defendants who went to trial as the result of these four counts.

Rather, the government relies on Count I, containing a ubiquitous conspiracy charge, to provide a common link between these

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otherwise unrelated transactions and to demonstrate the existence of a common scheme or plan among the several defendants. See United States v. Banks, 465 F.2d 1235, 1242-43 (5th Cir.), cert. denied, 409 U.S. 1062, 93 S.Ct. 568, 34 L.Ed.2d 514 (1972). The wording of the count is apt to describe a "wheel conspiracy" in which Harvard at the hub of the wheel might have conspired with Abrams, Levine, and others representing different spokes, in separate transactions to commit the substantive obscenity offenses charged.

For a wheel conspiracy to exist those people who form the wheel's spokes must have been aware of each other and must do something in furtherance of some single, illegal enterprise. Blumenthal v. United States, 332 U.S. 539, 556-57, 68 S.Ct. 248, 256-57, 92 L.Ed. 154 (1947). Otherwise the conspiracy lacks "the rim of the wheel to enclose the spokes." Kotteakos v. United States, 328 U.S. 750, 755, 66 S.Ct. 1239, 1243, 90 L.Ed. 1557 (1946). If there is not some interaction between those conspirators who form the spokes of the wheel as to at least one common illegal object, the "wheel" is incomplete, and two...

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