548 F.2d 1341 (9th Cir. 1977), 75-1873, United States v. Satterfield

Docket Nº:75-1873.
Citation:548 F.2d 1341
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert Joseph SATTERFIELD, Defendant-Appellant.
Case Date:February 16, 1977
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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548 F.2d 1341 (9th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert Joseph SATTERFIELD, Defendant-Appellant.

No. 75-1873.

United States Court of Appeals, Ninth Circuit

February 16, 1977

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Diane Spies, argued, Connall & Spies, Portland, Or., for defendant-appellant.

Jack C. Wong, argued, Asst. U. S. Atty., Portland, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

OPINION

Before BROWNING and KENNEDY, Circuit Judges, and SWEIGERT, [*] District Judge.

ANTHONY M. KENNEDY, Circuit Judge:

In this case we reverse a robbery conviction, for the appellant was improperly joined with a codefendant for trial.

On October 9, 1974 a ten-count indictment was returned against appellant Satterfield and one Harvey Willard Merriweather. The charges pertained to five Oregon bank robberies committed in the greater Portland area during the summer of 1974. 1 Merriweather and Satterfield were joined in a single indictment charging that Merriweather alone had perpetrated the first, second, and fifth robberies, and that Merriweather and appellant Satterfield together had committed the third and the fourth.

It was never alleged that Satterfield was involved in the first, second, and fifth robberies, whether as a participant in a common plan or in any other manner. The Government conceded as much at trial. The indictment, moreover, did not charge the defendants with conspiracy. A jury found both defendants guilty as charged. We affirm Merriweather's conviction by separate unpublished memorandum. We reverse the judgment against Satterfield and remand for further proceedings.

At various stages of the proceedings below, Satterfield timely moved for a separate trial on the ground that under Fed.R.Crim.P. 8(b), he had been improperly joined in the indictment. He contends that the trial court erred in refusing to grant his motions. We agree.

Fed.R.Crim.P. 8 provides:

(a) Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

(b) 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 be charged in one or more counts together or separately and all of the defendants

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need not be charged in each count.

Rule 8(a) applies only to joinder of offenses against a single defendant. Where more than one defendant is named in an indictment, the provisions of rule 8(b) control. United States v. Roselli, 432 F.2d 879, 898 (9th Cir. 1970); C. Wright & A. Miller, 1 Federal Practice and Procedure §§ 143 & 144 (1969 & Supp.1976); 8 Moore's Federal Practice P 8.06 (2d ed. 1965 & Supp.1976).

Nevertheless, in evaluating an allegation of misjoinder of persons under rule 8(b), the controlling standards for such joinder are best understood by contrasting them with the standards for joinder of offenses in a single defendant trial under rule 8(a). While rule 8(a) permits joinder against one defendant of offenses "of the same or similar character," even where those offenses arise out of wholly separate, unconnected transactions, United States v. Roselli, 432 F.2d at 898; 1 C. Wright & A. Miller, supra, § 144, rule 8(b) treats joinder of multiple defendants differently. In United States v. Roselli, we described the operation of the rule as follows:

Under Rule 8(b), the sole basis for joinder of charges against multiple defendants is that the defendants "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." It is irrelevant that Rule 8(a) permits charges "of the same or similar character" to be joined against a single defendant, even though they do not arise out of the same or connected transactions. Charges against multiple defendants may not be joined merely because they are similar in character, and even dissimilar charges may be joined against multiple defendants if they arise out of the same series of transactions constituting an offense or offenses.

432 F.2d at 898. (citations omitted).

From the foregoing, it follows that Satterfield was properly joined in the indictment and for trial only if all of the offenses charged in the indictment arose out of the same series of transactions. Joinder under rule 8(b) cannot be based on a finding that the offenses charged were merely of the same or a similar character. In considering what constitutes a "series of transactions" we have stated that the term "transaction" is a word of flexible meaning. United States v. Friedman, 445 F.2d 1076, 1083 (9th Cir. 1971). Whether or not multiple offenses joined in an indictment constitute a "series of acts or transactions" turns on the degree to which they are related. In the cases under rule 8(b), that relation is most often established by showing that substantially the same facts must be adduced to prove each of the joined offenses. United States v. Gentile, 495 F.2d 626 (5th Cir. 1974); United States v. Roselli, 432 F.2d at 899. We have thus stated that rule 8(b)' § " 'goal of maximum trial convenience consistent with minimum prejudice' is best served by permitting initial joinder of charges against multiple defendants whenever the common activity constitutes a substantial portion of the proof of the joint charges." United States v. Roselli, 432 F.2d at 899. Other logical relationships might also be sufficient to establish that a group of offenses constitutes a "series of acts or transactions," but a mere showing that the events occurred at about the same time, or that the acts violated the same statutes, is not enough. See United States v. Friedman, 445 F.2d at 1083.

Notwithstanding our express policy that rule 8(b) should be construed broadly in favor of initial joinder, id. at 1082, we are convinced that in the instant case Satterfield was improperly joined with the codefendant, Merriweather.

Most of the testimony at the trial related to the first, second, and fifth robberies, which were committed by Merriweather alone. The evidence against Merriweather was strong. Descriptions of a vehicle leaving the scene of the fifth robbery matched his car. A search of the car pursuant to a warrant revealed $5,000 in currency, and a mask and clothing similar to that worn at one or more of the robberies by a person later identified as Merriweather. Eye witness testimony and bank surveillance

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films from closed circuit television cameras were also introduced at trial to identify Merriweather as the perpetrator of the first, second, and fifth robberies. The evidence adduced at trial relative to the first, second, and fifth robberies pertained solely to acts undertaken by Merriweather alone....

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