Miller v. United States

• Decision Date: 14 May 1969
• Docket Number: 19271.,No. 19230,19230
• Citation: 410 F.2d 1290
• Parties: Jesse Earl MILLER, Appellant, v. UNITED STATES of America, Appellee. Robert HOLLAND, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

410 F.2d 1290 (1969)

Jesse Earl MILLER, Appellant, v. UNITED STATES of America, Appellee.

Robert HOLLAND, Appellant, v. UNITED STATES of America, Appellee.

Nos. 19230, 19271.

United States Court of Appeals Eighth Circuit.

May 14, 1969.

Daniel P. Reardon, Jr., St. Louis, Mo., for appellants.

Bruce C. Houdek, Special Asst. U. S. Atty., Kansas City, Mo., for appellee; Calvin K. Hamilton, U. S. Atty., Kansas City, Mo., was with him on the brief.

Before MATTHES, MEHAFFY and LAY, Circuit Judges.

MATTHES, Circuit Judge.

Appellants are two of twenty defendants who were jointly charged with committing numerous burglaries of United States post offices and other offenses related to the burglaries by indictment filed on March 31, 1967, in the United States District Court, Western District of Missouri. The 37 count indictment alleged that post offices had been burglarized between October 30, 1964, and March 31, 1967, in Missouri, Illinois, Iowa, Indiana, Minnesota, Oklahoma, Kansas, Wisconsin, Arkansas and Tennessee.¹

Count I alleged that all of the defendants, including appellants, and eight co-conspirators not named as defendants entered into a conspiracy which began in October, 1964, in violation of 18 U.S.C. § 371, to commit offenses in violation of 18 U.S.C. § 641, 18 U.S.C. § 2115 and 18 U.S.C. § 1361. Count I alleged and set forth in detail 153 overt acts which had been committed in furtherance of the conspiracy and for the purpose of effecting the unlawful objects thereof. The remaining 36 counts alleged substantive offenses.

In addition to being charged as a conspirator, appellant Miller allegedly committed four of the substantive offenses: Count VI — burglarizing the post office at Camdenton, Mo., on February 16, 1965; Count VII — wilfully damaging government property in that post office; Count XV — burglarizing the Maryville, Mo., Post Office on May 10, 1965; Count XVI — wilfully damaging government property in that post office. The appellants were jointly tried and found guilty as charged. Holland was sentenced to four years imprisonment. Miller received five-year prison terms on each of Counts I and VI, to be served concurrently and five years on each of Counts XV and XVI, to be served concurrently with each other and concurrently with the sentences imposed on Counts I and VI, and ten years on Count VII to be served consecutively to the other sentences, for a total of 15 years. Following denials of motions for a new trial, these appeals were perfected. They were consolidated in this court.

Appellant Miller made no effort in the trial to disprove the illegal acts encompassed in the four substantive counts. Neither does he contend here that he is not guilty of those offenses. Nor do the appellants take issue with the sufficiency of the Government's evidence to warrant submission of the conspiracy count. What the appellants complain of is the course pursued in trying them. They contend in major part that they were prejudiced and did not receive a fair trial because of the failure of the court to sever them and accord them separate trials. Miller also asserts that the court should have severed the counts. These and other alleged trial errors will be considered more exhaustively below.

Inasmuch as there is no direct challenge to the sufficiency of the proof, we engage in only a brief résumé of the evidence which is uncontradicted aside from an abortive attempt to impeach and thus discredit the defendants who testified for the Government. The conspiracy was spawned by defendants Richard Christenson and William Conway. In a relatively short period of time it developed into a full-grown scheme which manifested itself in widespread operations having one common aim. Post offices were unlawfully entered and postage and savings stamps were purloined and disposed of by sale to three of the defendants. In the early stage of the scheme defendants Paustian and Taylor of Manhattan, Kansas, acted as fences and purchased the stolen property from the burglars. Later, Paustian and Taylor arranged for Junior Bradley to succeed them as the principal fence. Various defendants played definite parts and were participants for different periods of time. Christenson testified that he had burglarized 35 post offices; Conway stated that he had been involved in at least 28 burglaries, including 18 with Christenson, in nine or ten states.

The evidence convincingly demonstrates that Miller joined the conspiracy in February, 1965, and knowingly aided the furtherance of it by participating in eight post office break-ins. Apparently Holland became a member in July, 1965, and was involved in two burglaries. The burglaries and the disposition of the stolen property followed a distinct pattern and formed a solid basis for the trial, submission and finding of a single conspiracy.

SEVERANCE ISSUE

Rule 8(a), Fed.R.Crim.P., specifically provides that two or more offenses may be charged in the same indictment if they are of 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. Under Rule 8(b) two or more defendants may be charged 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. As this court, Judge Lay, stated in Haggard v. United States, 369 F.2d 968, 973, cert. denied, Alley v. United States, 386 U.S. 1023, 87 S.Ct. 1379, 18 L.Ed.2d 461 (1966), "Broad interpretation of Rule 8(b) is undoubtedly encouraged in the interests of more efficient administration of criminal trials. This in no way detracts from the rights of individuals to avoid prejudicial joinder." If it appears that a defendant is prejudiced by a joinder of offenses or of defendants in an indictment or by joinder for trial together, Rule 14 authorizes the court to order separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. The trial court's refusal to order separate trials or grant severance, however, may be overturned only for an abuse of discretion. Wangrow v. United States, 399 F.2d 106, 110 (8th Cir.), cert. denied 393 U.S. 933, 89 S.Ct. 292, 21 L. Ed.2d 270 (1968); Hanger v. United States, 398 F.2d 91, 99 (8th Cir.1968); White v. United States, 395 F.2d 170, 175, 176 (8th Cir.), cert. denied, sub. nom., Kubik v. United States, 393 U.S. 844, 89 S.Ct. 127, 21 L.Ed.2d 115 (1968); Terlikowski v. United States, 379 F.2d 501, 506 (8th Cir.), cert. denied, 389 U.S. 1008, 88 S.Ct. 569, 19 L. Ed.2d 604 (1967); Butler v. United States, 317 F.2d 249, 264, 6 A.L.R.3d 582 (8th Cir.), cert. denied, sub. nom., Benedec v. United States, 375 U.S. 836, 84 S.Ct. 67, 11 L.Ed.2d 65 (1963).

On April 13, 1967, Miller moved the district court, pursuant to Rule 14, Fed. R.Crim.P., to sever him from the other defendants and grant him a separate trial. He also moved the court to grant him three separate trials: one on Count I, another on Counts VI and VII, another on Counts XV and XVI. Judge Hunter, before whom Miller's case was then pending, granted his motion to sever him from the other defendants but denied his request to sever the counts for the reason that there was no present showing of prejudice. Initially, Miller was tried alone and was found guilty by a jury on all five counts. Judge Hunter, however, on June 29, 1967, granted Miller's motion for a new trial for failure to adequately instruct the jury as to the evidence it was free to consider on each of the five counts, and because of possible error in the conspiracy instruction. In the same order Judge Hunter found no error from joinder of the five counts and the single trial. By a contemporaneous order Judge Hunter disqualified himself from hearing the case on retrial because he had read portions of the presentence investigation made after Miller had been found guilty. He thereupon transferred the case to Judge Collinson. On September 21, 1967, Judge Hunter transferred Holland's case to Judge Collinson because of common questions of consolidation, severance and discovery relative to appellant Miller's portion of the case pending before Judge Collinson.

After his case had been transferred, Miller again moved for severance of the counts. In denying the motion Judge Collinson concluded:

"The case has been tried once without a severance and the preceding trial judge specifically found that the joinder was not prejudicial after hearing all the counts tried together. All of the cases hold that the trial court shall grant a severance at any stage of a trial if prejudice does appear. The experienced trial judge who tried this case before did not find this prejudicial and this is very persuasive upon this Court."

Although Miller made no written motion for severance from his co-defendant, his counsel, who also represented Holland, orally moved for severance of the two defendants at the commencement of the trial, and again requested severance of the counts against Miller. Judge Collinson denied the motions, stating:

"Now, the two * * * motions for severance will be denied at this time subject to being renewed under the applicable rules and cases * * * during the course of trial, if the Court thinks there is something prejudicial in the joinder of either of the defendants or of the counts."

At no time thereafter were the motions renewed.

Appellants' basic position is that the evidence shows as a matter of law the existence of separate conspiracies. They assert that "the record indicates that there were in fact two separate and distinct conspiracies proved. One regarding the Camdenton, Missouri Post Office and the other regarding the alleged breakins and entries of post offices thereafter." From this premise they argue that the Camdenton count was divorced from the others and should have been severed. Interwoven in the argument presented is the...