Anderson v. United States, 13800.

• Decision Date: 11 September 1959
• Docket Number: No. 13800.,13800.
• Citation: 270 F.2d 124
• Parties: Lee Otis ANDERSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

270 F.2d 124 (1959)

Lee Otis ANDERSON, Appellant, v. UNITED STATES of America, Appellee.

No. 13800.

United States Court of Appeals Sixth Circuit.

September 11, 1959.

Rodes K. Myers, Bowling Green, Ky., for appellant.

J. Leonard Walker and James C. Jernigan, U. S. Attys., Louisville, Ky., for appellee.

Before MARTIN, Chief Judge, McALLISTER, Circuit Judge, and CECIL, District Judge.^*

CECIL, District Judge.

This is an appeal from a judgment of conviction in the United States District Court for the Western District of Kentucky, at Bowling Green. The appellant, Lee Otis Anderson, was indicted jointly with two brothers, William Garnet Martin and Buell Miller Martin, on a check transaction.

The indictment contained three counts. The two Martins were charged in the first count with stealing a letter containing a United States Treasury check from an authorized depository for mail matter. The second count charged all three of the defendants with forging the signature of William D. Jones, the payee of the check. In the third count the defendants were all charged jointly with passing, uttering and publishing the check with the knowledge that the endorsement of William D. Jones was forged.

When the case came on for trial, the defendant, William Garnet Martin, pleaded guilty to the first and third counts and Buell Miller Martin entered a plea of guilty to the third count. They went to trial on the other counts (Tr. p. 5).

Counsel for the appellant, before the matter of the above pleas was settled, moved for a separate trial from his co-defendants for the reason that one of the Martins had entered a plea of guilty and one had entered a plea of not guilty and the appellant's substantial rights would be prejudiced by a joint trial (Tr. p. 2). The trial judge overruled this motion for the reason that he could protect appellant's rights through instructions to the jury.

It developed at the trial that the two Martins had made individual and separate statements of admissions to Sheriff Truman Mays of Allen County and Postal Inspector James H. Frazier. These statements implicated the appellant, Lee Otis Anderson. Apparently the indictment was framed on the basis of these admissions.

Counsel for the appellant charges that error was committed in refusing to allow a separate trial, in admitting the admissions of the two Martins and in permitting the Assistant United States Attorney to cross-examine Anderson with reference to the statement of Buell Miller Martin.

A trial judge may grant separate trials of counts if it appears that a defendant or the government will be prejudiced by a joinder of offenses or defendants or provide other relief if justice requires. Rule 14, Federal Rules of Criminal Procedure, 18 U.S.C.A.

A broad discretion is allowed the trial judge and in the absence of an abuse of discretion, an order refusing to grant a severance will not be reversed on appeal. Sharp v. United States, 6 Cir., 195 F.2d 997; Ross v. United States, 6 Cir., 197 F.2d 660, 661; Petro v. United States (Sanzo v. United States), 6 Cir., 210 F.2d 49; United States v. Ball, 163 U.S. 662, at page 672, 16 S.Ct. 1192, at page 1195, 41 L.Ed. 300. We consider there was no abuse of discretion by Judge Swinford in denying appellant's motion in this case.

The admissions of the two Martins as related by the witnesses Sheriff Truman Mays and Postal Inspector James H. Frazier, were properly limited for the consideration of the jury by instructions of the trial judge. The jury was adequately advised that those admissions could not be considered as evidence against Anderson.

Statements incriminating against one or more joint defendants but not all of them are not per se prejudicial and may be admitted under proper instructions to the jury. United States v. Ball, supra. In Opper v. United States, 348 U.S. 84, at page 95, 75 S.Ct. 158, at page 165, 99 L.Ed. 101, the Court said, "It was within the sound discretion of the trial judge as to whether the defendants should be tried together or severally and there is nothing in the record to indicate an abuse of such discretion when petitioner's motion for severance was overruled. The trial judge here made clear and repeated admonitions to the jury at appropriate times that Hollifield's incriminatory statements were not to be considered in establishing the guilt of the petitioner. To say that the jury might have been confused amounts to nothing more than an unfounded speculation that the jurors disregarded clear instructions of the court in arriving at their verdict. Our theory of trial relies upon the ability of a jury to follow instructions. There is nothing in this record to call for reversal because of any confusion or injustice arising from the joint trial. The record contains substantial competent evidence upon which the jury could find petitioner guilty." See also Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278.

In determining whether or not these admissions were prejudicial to Anderson, we look to the record to see if there was sufficient evidence to sustain a conviction exclusive of them. The separate statement of the appellant to the Postal Inspector was not inconsistent with innocence and was not different from his testimony at the trial. The case against Anderson must then be considered as though the Sheriff and Inspector had not testified.

We conclude that there is no competent evidence upon which the jury could find that Anderson forged the endorsement of the payee, William D. Jones. The judgment of conviction on the second count must, therefore, be reversed.

On the third count, the evidence is conflicting as to Anderson's part in cashing the check. Jack Kinnarey, proprietor of the Riverside Liquor Store, where the check was cashed,...