Baker v. United States

• Citation: 393 F.2d 604
• Decision Date: 21 May 1968
• Docket Number: No. 21318-A,21318-A
• Parties: Willis K. BAKER, Jr., and Mervin "Bud" Cornelsen, Appellants, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

393 F.2d 604 (1968)

Willis K. BAKER, Jr., and Mervin "Bud" Cornelsen, Appellants, v. UNITED STATES of America, Appellee.

Nos. 21318-A, 21318-B.

United States Court of Appeals Ninth Circuit.

April 4, 1968.

Rehearing Denied May 21, 1968.

COPYRIGHT MATERIAL OMITTED

Vincent J. Mullins, Gerald J. O'Connor of Sullivan, Roche, Johnson & Farraher, San Francisco, Cal., for appellants.

James E. Shekoyan, Asst. U. S. Atty., William Matthew Byrne, Jr., U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Chief, Criminal Division, Eric A. Nobles, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before MADDEN, Judge of the Court of Claims, and HAMLEY and MERRILL, Circuit Judges.

HAMLEY, Circuit Judge:

Count one of a three-count indictment, filed on April 7, 1966, charged Charles Raymond Rush, Roger Lee Stephenson, Willis Kingsley Baker, Jr., and Mervin "Bud" Cornelsen, under 18 U.S.C. §§ 371 and 641 (1964), with conspiracy to receive, conceal and convert stolen government property to their own use. Count two of the indictment charged Rush with stealing a quantity of government property in violation of 18 U.S.C. § 641. Count three charged Baker with receiving, concealing and converting a quantity of government property in violation of 18 U.S.C. § 641.

Stephenson pleaded guilty to count one, the only count involving him. Rush, Baker and Cornelsen pleaded not guilty to the counts in which they were individually named. These three were jointly tried before a jury. Rush was convicted on counts one and two. Baker was convicted on counts one and three. Cornelsen was convicted on count one. Baker and Cornelsen jointly appeal.

Baker was the owner of an aircraft parts and supply company, known as Aero Enterprises, located at the Fresno Airport, Fresno, California. Cornelsen was one of his employees. Stephenson was a cement mason apprentice in Fresno. In 1963 Stephenson met Rush, who was an employee at the Lemoore Naval Air Station. Rush worked as a stockman in the stowage branch in the aviation warehouse. In that position he had complete access to a wide range of military equipment, including radio and navigational components for aircraft. Stephenson was also acquainted with Baker and Cornelsen.

In the summer of 1965, Stephenson purchased from Rush some altimeters for use in sport parachuting. He found that they were too sensitive to use for jumping and therefore sold them to Baker on August 30, 1965. Stephenson sold various aviation items to Baker from time to time, after having acquired them from Rush. Cornelsen was present while several of these transactions between Stephenson and Baker were consummated. Rush had stolen some of these items from Lemoore Naval Air Station's supply department.

The circumstances under which Baker purchased these items and under which he and Cornelsen dealt with the items after purchase led the jury to find Baker guilty on the receiving, concealing and converting count, and both Baker and Cornelsen guilty on the conspiracy count.

On appeal Baker argues that the district court erred in denying his motion for a separate trial on count three of the indictment charging him alone with receiving and concealing stolen government property. Baker alleges that the joinder of count three with count two, charging Rush with stealing the same property, was an impermissible joinder of defendants under Rule 8(b), Federal Rules of Criminal Procedure.

Rule 8(b) permits the joinder of multiple defendants only where it is alleged that they have "participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." The rule provides, however, that "all of the defendants need not be charged in each count."

Here counts two and three, the substantive counts, and count one, the conspiracy count, considered together, all arise out of the same series of transactions in which all of the defendants allegedly participated. Where this is the case, the joinder, in one indictment, of the conspiracy count and substantive counts is permissible under Rule 8(b). See Schaffer v. United States, 362 U.S. 511, 513, 80 S.Ct. 945, 4 L.Ed.2d 921; Williamson v. United States, 9 Cir., 310 F.2d 192, 197 n. 16; Hill v. United States, 9 Cir., 306 F.2d 245, 247.

Baker also asserts that the trial court should have granted his motion for severance and separate trial of count three under Rule 14, Federal Rules of Criminal Procedure, because of prejudice to himself stemming from the joinder of defendants and offenses.

Baker first argues that he was prejudiced because a confession of one of the defendants was introduced in evidence against him. But the only defendants who were tried with Baker were Cornelsen and Rush, and neither of them made a confession. Although Stephenson's confession was introduced into evidence, it was introduced by Baker in an attempt to impeach Stephenson's testimony. Thus, the introduction of the confession was not hearsay and the joinder of defendants created no prejudice in this regard.

Baker also asserts, in effect, that prejudice is probable in a case where two offenses are joined because a defendant may wish, as a practical matter, to testify on one count and remain silent on the other. However, Baker makes no contention that this was his wish in this case, and that the joinder thwarted such tactics.

Baker suggests several other reasons why, in his view, actual or potential prejudice resulted from failure to grant him a separate trial on count three of the indictment. We have examined each of these and conclude that no substantial actual or probable prejudice has been demonstrated. While Rule 14 permits the trial court to order severance of either offenses or defendants if it appears that a defendant may be prejudiced by joinder, the failure of the court to order severance is not a basis for reversal absent a clear abuse of discretion. Mendez v. United States, 9 Cir., 349 F.2d 650, 652. We find no abuse of discretion in this regard.

Baker contends that the trial court abused its discretion in denying his repeated motions for a speedy trial.

The first three-count indictment was filed on January 19, 1966. On February 18, 1966, Baker and Cornelsen moved to dismiss count one of that indictment (conspiracy). At the same time Baker moved for a separate and speedy trial as to him on count three (receiving and concealing) in the event count one was dismissed. On February 28, 1966, both motions were granted and, whereas a joint trial had been set for May 11, 1966, a separate trial for Baker on count three was then set for April 5, 1966.

On March 10, 1966, the Government filed a superseding indictment containing the same three counts, but with some revision of count one. The Government then moved to vacate the April 5, 1966 trial setting on count three of the first indictment, stating that, in view of the superseding indictment, the Government would not prosecute under the first indictment. The district court thereupon vacated the April 5, 1966 trial setting, and ordered a joint trial of all three defendants on all counts of the superseding indictment for May 11, 1966.

On April 4, 1966, Baker moved for an early and separate trial of count three of the superseding indictment. On April 7, 1966, before the above motion was argued, the Government filed a second three-count superseding indictment. Again there were revisions in count one of the indictment. On April 11, 1966, Stephenson entered a plea of guilty on count one (conspiracy), and May 23, 1966 was fixed as the date of his presentence report. As noted above, Baker, Cornelsen and Rush pleaded not guilty on all counts affecting them.

Baker's motion for severance was argued and denied on April 11, 1966. Counsel for Rush moved that the trial date be postponed from May 11, 1966 to the first or second week of June. But Baker and Cornelsen preferred to hold the May 11, 1966 trial date and the Government indicated satisfaction with that date. The court therefore retained the May 11, 1966 trial setting.

On May 11, 1966, Baker and Cornelsen appeared in court ready for trial. They were met by a motion for a continuance filed by the Government that morning, without prior service on opposing counsel. The trial court, however, apparently had been given advance notice of the motion for a continuance since, prior to May 11, 1966, the jury panel had been instructed not to appear on that day. The motion was made on the ground that the Government had been unable to serve a subpoena on one of its witnesses. Baker and Cornelsen strenuously resisted the motion for continuance, but the order was granted and the trial was continued to May 24, 1966. The case went to trial on that day.

The continuance from May 11 to May 24, 1966, was for such a short period of time that it could not, in our view, constitute a denial of appellants' Sixth Amendment right to a speedy trial. We similarly conclude with regard to the delay from April 5, 1966, once set as the trial date for Baker, to the May 24, 1966 trial date.

Baker and Cornelsen also appear to argue, in effect, that the trial court abused its discretion in granting the continuance. However, no prejudice is alleged to have resulted from this continuance whether deemed to be from April 5, or May 11, 1966. We hold that the trial court did not err in setting the trial for May 24, 1966, rather than an earlier date.

Baker and Cornelsen contend that the court erred in denying their motions for acquittal, made at the close of the Government's case and renewed at the close of all the evidence. The motions were made on the ground that the evidence was insufficient to support the verdicts of guilty. On appeal, one argument which appellants make in support of this contention is that the evidence failed to establish beyond a reasonable doubt that Baker and Cornelsen knew the property in question had been stolen.

The brief on appeal, filed by the office of the United States Attorney,...