Cataneo v. United States

• Decision Date: 28 April 1948
• Docket Number: 5735,No. 5736.,No. 5733,5733,5736.
• Citation: 167 F.2d 820
• Parties: CATANEO v. UNITED STATES. MAGLIANO v. SAME (two cases).
• Court: U.S. Court of Appeals — Fourth Circuit

167 F.2d 820 (1948)

CATANEO v. UNITED STATES.

MAGLIANO v. SAME (two cases).

Nos. 5733, 5735, No. 5736.

Circuit Court of Appeals, Fourth Circuit.

April 28, 1948.

John Henry Lewin, of Baltimore, Md. (J. Crossan Cooper, Jr., of Baltimore, Md., on the brief), for appellant Cataneo.

Paul Berman, of Baltimore, Md. (Robert R. Carman, Sigmund Levin and Theodore B. Berman, all of Baltimore, Md., on the brief), for appellant Magliano.

Bernard J. Flynn, U. S. Atty., of Baltimore, Md., for appellee.

Before PARKER, SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

In the United States District Court for the District of Maryland, John Cataneo, Benjamin Magliano and Vincent Drecchio were indicted, tried before a jury, convicted and sentenced for violation of 50 U.S.C.A. Appendix, § 311, which reads, in part, as follows:

"* * * any person who shall knowingly make, or be a party to the making of, any false statement or certificate as to the fitness or unfitness or liability or nonliability of himself or any other person for service under the provisions of this Act, or rules, regulations, or directions made pursuant thereto, or who otherwise evades registration or service in the land or naval forces or any of the requirements of this Act, or who knowingly counsels, aids, or abets another to evade registration or service in the land or naval forces or any of the requirements of this Act, or of said rules, regulations, or directions, or who in any manner shall knowingly fail or neglect to perform any duty required of him under or in the execution of this Act, or rules or regulations made pursuant to this Act, * * * or conspire to do so, shall, upon conviction in the district court of the United States having jurisdiction thereof, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment * * *."

These defendants were tried on two indictments. One indictment (in two counts) charged Magliano and Drecchio with making and causing to be made false statements in affidavits to Selective Service Form 41-A (Occupational Deferment) submitted by the American Ship Cleaning Company on behalf of Magliano. The other indictment charged Cataneo and Magliano with making and causing to be made false statements in a letter to the Local Draft Board on behalf of Magliano. As a result of this letter and Selective Service Form 42-A, Magliano was placed in a deferred classification. Over strenuous objections, the indictments were consolidated for trial. Drecchio did not appeal but Cataneo and Magliano have appealed to us.

As will subsequently appear, the appeals of Magliano and Cataneo have much in common; in some respects, however, the two appeals differ. We take up first the appeal of Cataneo.

The contention of Cataneo which merits our most serious attention is that prejudicial error was committed when he was joined with Magliano in indictment No. 20741, and when the trial court consolidated for common trial this indictment with indictment No. 20740 against Magliano and Drecchio.

We quote the apposite Rules of Criminal Procedure, 18 U.S.C.A. following section 687:

"Rule 8. Joinder of Offenses and of Defendants

"(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 need not be charged in each count."

"Rule 13. Trial Together of Indictments or Informations

"The court may order two or more indictments or informations or both to be tried together if the offenses, and the defendants if there is more than one, could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution were under such single indictment or information."

"Rule 14. Relief from Prejudicial Joinder

"If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires."

It will be noted that Rule 8(a) permits the joinder of two or more offenses in the same indictment when the offenses "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." Rule 8(b) permits the joinder of two or more defendants in the same indictment "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." Rule 13 throws us back to Rule 8 by permitting the court to "order two or more indictments or informations or both to be tried together if the offenses, and the defendants if there is more than one, could have been joined in a single indictment or information." (Italics ours.) Then under Rule 14, relief from prejudicial joinder may be granted by the court "If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together." (Italics ours.)

For our purposes, the key-word here seems to be "transaction." This is not a technical term, nor is it a word of art. It has been variously defined and applied in numerous cases arising under the old Federal Equity Rules and in Code Pleading in connection with the joinder of causes of action and the permissibility of interposing counterclaims. Oft-quoted is the remark (under Equity Rule 30) of Mr. Justice Sutherland, in Moore v. New York Cotton Exchange, 270 U.S. 593, 610, 46 S.Ct. 367, 371, 70 L.Ed. 750, 45 A.L.R., 1370:

"`Transaction' is a word of flexible meaning. It may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship."

Clark on Code Pleading, page 309, thinks the word should be given a broad meaning "to carry out what all procedural rules are designed to accomplish, namely, convenience and efficiency in trials." See, also, Phillips on Code Pleading, 2d Ed., § 312.

Under the rules before us, an interpretation of the word "transaction" frequently involves the balancing of conflicting interests: (1) speed, efficiency and convenience in the functioning of the federal judicial machinery; against (2) the right of the accused to a fair trial, without any substantial prejudice to that right occasioned by the joinder of offenses and/or defendants.

There is in reality one "transaction" here — the draft deferment of Magliano. All of the criminal activities alleged on the part of Cataneo, Drecchio and Magliano (and, according to the jury's verdict, proved) relate to, and are logically and intimately connected together with, this transaction. Here there is one employer, one draftee, one Local Board. The deferment of Magliano is the goal of all the activities herein alleged, namely — the making of the false affidavits by Drecchio, the writing of the letter containing the false statements by Cataneo, and the procurement and use of these documents by Magliano. A fortiori, may these criminal activities be included together under the categories "two or more acts or transactions connected together or constituting parts of a common scheme or plan" (Rule 8(a) and "same series of acts or transactions constituting an offense or offenses."

No case precisely in point, or even strikingly similar to the instant cases has been cited to us. In the cases stressed by appellants we find nothing directly contrary to the decision we have reached. See, McElroy v. United States, 164 U.S. 76, 17 S.Ct. 31, 41 L.Ed. 355; Caringella v. United States, 7 Cir., 78 F.2d 563; Zedd v. United States, 4 Cir., 11 F.2d 96; Coco v. United States, 8 Cir., 289 F. 33; United States v. Decker, D.C., 51 F.Supp. 20. And see, where consolidation was permitted, the opinion of Circuit Judge Learned Hand in United States v. Gottfried, 2 Cir., 165 F.2d 360; the opinion of Circuit Judge Clark in United States v. Antonelli Fireworks Co., 2 Cir., 155 F.2d 631; and the opinion of District Judge Byers in United States v. Needleman, D.C., 6 F.R.D. 205

When consolidation is permissible under the formal requirements of Rules 8 and 13, Federal Rules of Criminal Procedure, the question of severance or common trial is vested under Rule 14 in the sound discretion of the trial judge and his decision will be reversed on appeal only upon a clear abuse of that discretion. We find no such abuse here, in spite of Cataneo's contention that the confession of Drecchio alone should have compelled a severance. See United States v....