Chubet v. United States
Citation | 414 F.2d 1018 |
Decision Date | 06 August 1969 |
Docket Number | No. 19166,19202.,19166 |
Parties | Bernard J. CHUBET, Jr., Appellant, v. UNITED STATES of America, Appellee. John R. KAUFFMANN, Appellant, v. UNITED STATES of America, Appellee. |
Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Archibald Palmer, New York City, for appellant Chubet.
Lawrence N. Weenick, of Shepherd & Weenick, Clayton, Mo., for appellant Kauffmann.
Frederick O. Griffin, Jr., Asst. U. S. Atty., Kansas City, Mo., for appellee, Calvin K. Hamilton, U. S. Atty., Kansas City, Mo., on the briefs.
Before VAN OOSTERHOUT, Chief Judge, and VOGEL and HEANEY, Circuit Judges.
These are appeals from judgments of conviction in the United States District Court for the Western District of Missouri. The defendants, Bernard J. Chubet, Jr. and John R. Kauffmann, were jointly charged with three others for the illegal possession and sale of amphetamine tablets in violation of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 301 et seq. The defendants were charged in an information consisting of twelve counts. Six of the counts alleging possession were dismissed prior to trial. The defendant, Chubet, was convicted on the two counts he was charged in and was sentenced to one year imprisonment on each count — to be served concurrently. The defendant, Kauffmann, was convicted on all six counts and sentenced to one year imprisonment on each count — to be served concurrently.
Because the defendants urge separate and distinct errors as grounds for reversal, we will consider each conviction separately.
Chubet:
The defendant, Chubet, went to trial charged in the information as follows:
COUNT AMPHETAMINE DATE PLACE I Kauffmann Sale Feb. 10, 1967 Springfield, Mo & Jared III Kauffmann Sale Feb. 21, 1967 Columbia, Mo & Chubet V Kauffmann Sale Feb. 21, 1967 Blue Springs, Mo & Chubet VII Kauffmann, Sale Feb. 23, 1967 Jackson County, Mo Glacken & Geerdes IX Kauffmann, Sale Feb. 23, 1967 Columbia, Mo. Glacken & Geerdes XI Kauffmann, Sale Mar. 2, 1967 Jackson County, Mo. Glacken & Geerdes
Prior to the trial, Chubet moved for a separate trial on the grounds that three separate and distinct crimes were charged, two of which it was not alleged that he had participated in committing. The trial court denied his motion. Chubet contends that this ruling was erroneous and that his conviction must be reversed. We agree.
Rule 8(b), Federal Rules of Criminal Procedure, provides:
In Ward v. United States, 110 U.S. App.D.C. 136, 289 F.2d 877 (1961), Ward and a codefendant were jointly indicted and tried. In Counts I, II and III, Ward alone was charged with the sale of narcotics. In Counts IV, V and VI, Ward and his codefendant were jointly charged with the sale of narcotics. In Count VII, the codefendant alone was charged with the sale of narcotics.
The Court held, in reversing the conviction on the grounds of misjoinder under Rule 8(b) that:
Id. 289 F.2d at 878. 8 Moore, Federal Practice — Cipes, Criminal Rules ¶ 8.06 2.
Here, Kauffmann, the common thread in the indictment, is an insufficient basis for jointly trying the defendants. While Kauffmann and the defendant were common participants in Counts III and V, there was no allegation linking the defendant with Counts I, VII, IX and XI. The information neither alleged that the transactions were connected nor that they were common to a conspiracy.
Kauffmann:
The defendant, Kauffmann, admitted that he made the sales. His primary defense was that he had been entrapped by government agents. He admits that the evidence indicating that he was guilty was "very strong." He argues, however, that the trial judge's comments, while summarizing the evidence during the charge to the jury, were improper and prejudiced the jury against him. He also contends that the trial judge's comments had the effect of placing upon him the burden of proving his innocence.
The defendant objected generally to the court's charge at trial, but did not take exception to the comments which he now, for the first time, asserts were error.
The defendant concedes that the asserted errors are not subject to review under Rule 30, Fed.R. Crim.P., but asks this Court to notice them as plain error under Rule 52(b).
In United States v. Ostendorff, 371 F.2d 729, 731 (4th Cir.), cert. denied, 386 U.S. 982, 87 S.Ct. 1286, 18 L.Ed.2d 229 (1967), the relation between the two rules was explained as follows:
* * *"
In Herzog v. United States, 235 F.2d 664, 666 (9th Cir. 1955), cert. denied, 352 U.S. 844, 77 S.Ct. 54, 1 L.Ed.2d 59 (1956), the paradox between the two rules was resolved as follows:
(Emphasis included and footnote omitted.)
Thus, our task is to determine whether there were any errors by the trial court in the charge of such sufficient gravity as to substantially affect the rights of the defendant and prejudice him in the eyes of the jury to the extent that our failure to note them would perpetuate a miscarriage of justice. See, United States v. Birnbaum, 373 F.2d 250 (2d Cir. 1967), cert. denied, 389 U.S. 837, 88 S.Ct. 53, 19 L.Ed.2d 99. Petschl v. United States, 369 F.2d 769 (8th Cir. 1966).
The court, in its instructions, reviewed the evidence extensively. Consequently, the "very strong" evidence of the defendant's guilt was reflected in the summarization. However, as the defendant contends, the court made a number of misstatements of the evidence during its summarization. These errors, in our opinion, are an...
To continue reading
Request your trial-
U.S. v. Bledsoe
...in this circuit that the propriety of joinder must appear on the face of the indictment. Sanders, 563 F.2d at 382; Chubet v. United States, 414 F.2d 1018, 1020 (8th Cir. 1969); cf. 8 Moore's Federal Practice P 8.06(3), at 39 (2d ed. 1981) (discussing retroactive The prerequisites for joinde......
-
U.S. v. Grey Bear
...As Sanders held that the indictment was sufficient, the issue simply was not resolved there. Bledsoe also relies on Chubet v. United States, 414 F.2d 1018 (8th Cir.1969), in which this court considered only the allegations in an indictment in holding them insufficient to justify joinder. Id......
-
Rush v. Smith
... ... Rita Krapf, Nesby Moore, Vincent Schoemehl, Appellees ... No. 93-3585 ... United States Court of Appeals, ... Eighth Circuit ... Submitted April 13, 1995 ... Decided June 5, ... for a reversal may be disregarded as harmless where the evidence of guilt is strong.' " Chubet v. United States, ... Page 931 ... 414 F.2d 1018, 1021 (8th Cir.1969) (quoting Thomas v ... ...
-
United States v. Cole
...the evidence of his guilt was overwhelming; and that no prejudicial error was committed by the trial court. Cf. Chubet v. United States, 414 F.2d 1018, 1021 (8th Cir. 1969), and Rogers v. United States, 367 F.2d 998, 1003 (8th Cir. 1966) (2-1), cert. denied, 386 U.S. 943, 87 S.Ct. 976, 17 L......