Finnegan v. United States

• Decision Date: 28 May 1953
• Docket Number: No. 14573.,14573.
• Citation: 204 F.2d 105
• Parties: FINNEGAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

204 F.2d 105 (1953)

FINNEGAN v. UNITED STATES.

No. 14573.

United States Court of Appeals Eighth Circuit.

April 30, 1953.

Rehearing Denied May 28, 1953.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Morris A. Shenker, St. Louis, Mo. (Bernard J. Mellman and Thomas J. Guilfoil, St. Louis, Mo., on the brief), for appellant.

George L. Robertson, U. S. Atty., St. Louis, Mo., and James W. Knapp, Attorney, Department of Justice, Washington, D. C. (Warren Olney, III, Asst. Atty. Gen., and Tom DeWolfe and Robert H. Purl, Attorneys, Department of Justice, Washington, D. C., on the brief), for appellee.

Before GARDNER, Chief Judge, and THOMAS and RIDDICK, Circuit Judges.

GARDNER, Chief Judge.

This is an appeal from a judgment following conviction on Counts I and II of an indictment consisting of five counts. Counts I, II and III charged the defendant with receiving compensation from certain named parties for appearing on behalf of the parties named before an agency or department of the United States Government, the defendant then being the duly appointed, qualified and acting Collector of Internal Revenue for the First Collection District of Missouri, and as such was an officer in the employ of the United States. Counts IV and V charged the defendant with bribery in his office as Collector of Internal Revenue. The indictment was drawn under Sections 281 and 202 of Title 18 United States Code.

On arraignment defendant pleaded not guilty and then filed motion to dismiss the indictment on the ground of misjoinder and he also filed motion to require the Government to elect on which count or counts of the indictment it would proceed. Both these motions were denied. Defendant then filed motion for an indefinite continuance on the ground that the great publicity given the matter of the charges embodied in the indictment by newspapers and magazines had so inflamed the public mind that he could not have a fair trial before a jury selected in the area from which jurors were to be selected. To this motion were attached as exhibits copies of various articles appearing in newspapers and in one magazine. It was not supported by affidavit nor was it argued by counsel for the defendant. This motion was denied and thereupon a jury was selected and the case proceeded to trial. The Government introduced evidence in support of the various counts of the indictment and the defendant in turn introduced evidence in opposition thereto. At the close of the case defendant moved for acquittal, which motion was denied, and the case was sent to the jury on instructions to which the defendant saved certain exceptions. The jury returned verdicts of guilty on Count I and Count II and verdicts of not guilty on Counts III, IV and V. From the judgment and sentence entered pursuant to the verdicts of guilty on Counts I and II defendant prosecutes this appeal.

The grounds on which defendant seeks reversal are substantially as follows: 1. The court erred in denying his preliminary motions: (a) To dismiss for misjoinder. (b) To require the government to elect upon which counts it would proceed, (c) To grant a continuance, and (d) In denying his motion for a Bill of Particulars; 2. The court erred in its rulings during the reception of evidence: (a) In permitting the government to offer evidence of other alleged offenses of the defendant. (b) In permitting the government to interrogate one of its own witnesses as a hostile witness. (c) In permitting in evidence government's Exhibits 27, 38, and 63, being private diaries. (d) In permitting the government to cross-examine defendant upon matters on which he had not been interrogated during his direct examination. (e) In permitting a government witness to testify as to what money had been paid to defendant as expense money for services "as a lawyer" during 1949 and 1950; 3. The court erred in overruling defendant's motion for judgment of acquittal interposed at the close of the government's evidence and renewed at the close of the entire case; 4. The court erred in its charge to the jury in expressing his opinion and commenting on portions of the evidence and on the credibility of certain witnesses, and in including in his charge instructions, copies of which had not previously been submitted to the defendant, and in failing to instruct the jury that testimony of a witness given before the grand jury did not constitute substantive evidence; 5. The court erred in permitting the jury to consider government's Exhibits 14 and 79 which had not been received in evidence.

Defendant's motion to dismiss the indictment because of misjoinder of offenses and his motion to require the government to elect upon which counts of the indictment it would proceed may be considered together. The motion to dismiss for misjoinder need only be given passing notice. Defendant was not in any event entitled to a dismissal of the indictment because of misjoinder. Dowling v. United States, 5 Cir., 49 F.2d 1014; Culjak v. United States, 9 Cir., 53 F.2d 554, 82 A.L.R. 480. It is the contention of the government that the joinder of the five offenses in one indictment was proper under Rule 8(a) of the Federal Rules of Criminal Procedure, 18 U.S.C. This rule reads in part as follows: "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." The motion made before the trial began was not renewed at the close of the government's testimony nor at the close of the case. It is now urged that the testimony as to the several distinct offenses charged was such as to hamper and confound the defendant in his defense. A mere inspection or examination of the indictment would not, we think, disclose that such might reasonably be expected to result. If, however, the defendant felt that the testimony was such as to prejudice him in this regard, he should have renewed his motion either at the close of the government's evidence or at the close of the entire case. We have held that it may properly be interposed at the close of all the evidence. Bedell v. United States, 8 Cir., 78 F.2d 358. Having failed so to do, we think the contention cannot now be urged. It is however, contended that the counts could not properly be joined in one indictment because each charged a separate and distinct offense, unrelated to each other. However, distinct offenses may properly be joined if they are of the "same or similar character". Egan v. United States, 52 App.D.C. 384, 287 F. 958, 963. In the Egan case four counts were joined in one indictment alleging violation of the same federal statutes involved in the instant case. Defendant moved to require the government to elect as to the offenses on which it would proceed. The trial court denied the motion and on appeal the Court of Appeals for the District of Columbia among other things said, "The crimes defined in sections 113 and 117 belong to the same class, and may be separately charged in a single indictment. In such a case a general verdict of guilty on all the counts will be sustained in error, if any count is good and sufficient to support the judgment." All five of the offenses charged in this indictment were for violations of statutes designed to protect the government. The charge in each of the counts was the acceptance of money either for representing an interest adverse to the government or as a bribe to perform some act adverse to the interest of the government, the defendant being a trusted public official. All the offenses in effect charged a government official with taking the part of private interests in matters in which the government was a party. All of the counts involved directly or indirectly, the use of official position for the benefit of private interest for a pecuniary consideration.

It must be borne in mind that defendant was acquitted on counts III, IV, and V. But it is now contended that he was prejudiced by the admission of evidence on the counts on which he was acquitted. As has already been pointed out, he did not during the trial suggest by motion or otherwise that his trial on the five offenses would confound him in his defense. In these circumstances, we think there was no abuse of discretion by the trial court in overruling his motions. Apparently the jury had no difficulty in considering separately each of the offenses charged. Indeed, it was quite discriminating because it acquitted defendant on three of the counts. And no prejudice can be said to have resulted on the denial of defendant's motion to require the government to elect. Finally, it may be said that the fundamental principle underlying the practice of requiring the prosecution to choose between offenses or counts is the prevention of prejudice and embarrassment to the accused, and if the charges are of the same general character and are manifestly joined in one indictment in good faith, the government should not be required to elect upon which count or counts it will proceed to trial. We conclude that there was no abuse of discretion in denying defendant's motion to require the government to elect and no prejudice is shown to have resulted therefrom.

When this case was called for trial, defendant interposed a motion for continuance, and the denial of this motion is urged as error. The motion was unverified and requested an indefinite continuance based upon the charge that newspaper articles and one magazine article and the proceedings of the Congressional Committee and grand jury had given such widespread publicity to the charges contained in the indictment that he could not have a fair and impartial trial before a jury to be selected in the area within the influence of such publicity. There is no direct...