Peterson v. United States

• Decision Date: 23 January 1969
• Docket Number: 19186.,No. 19155,19155
• Citation: 405 F.2d 102
• Parties: Gerald D. PETERSON, Appellant, v. UNITED STATES of America, Appellee. Louis A. DERRINGER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

405 F.2d 102 (1968)

Gerald D. PETERSON, Appellant, v. UNITED STATES of America, Appellee.

Louis A. DERRINGER, Appellant, v. UNITED STATES of America, Appellee.

Nos. 19155, 19186.

United States Court of Appeals Eighth Circuit.

December 31, 1968.

Rehearings Denied January 21, 1969.

Rehearings Denied January 23, 1969.

COPYRIGHT MATERIAL OMITTED

Robert G. Duncan, of Pierce, Duncan, Beitling & Shute, Kansas City, Mo., for appellants, Gerald D. Peterson, pro se.

Calvin K. Hamilton, U. S. Atty., Kansas City, Mo., for appellee.

Before BLACKMUN, GIBSON and HEANEY, Circuit Judges.

Rehearings Denied En Banc January 21, 1969.

HEANEY, Circuit Judge.

The defendants seek to set aside judgments of conviction entered in the United States District Court, Western District of Missouri. We affirm.

The defendants were charged in a single indictment of seven counts:¹

Count I — a conspiracy between Derringer and Peterson to sell both narcotics and depressant or stimulant drugs on January 7, 1967, and January 10, 1967, in violation of 18 U.S.C. § 371.

Count II — a sale of narcotics by Derringer on January 7th in violation of 26 U.S.C. § 4705(a) and 18 U.S.C. § 2.

Count III — a sale of depressant or stimulant drugs by Derringer on January 7th in violation of 26 U.S.C. § 4704(a) and 18 U.S.C. § 2.

Count IV — a sale of depressant or stimulant drugs by both defendants on January 10th in violation of 21 U.S.C. § 331 (q) (2) and 18 U.S.C. § 2.

Count VI — a sale of narcotics by both defendants on January 10th in violation of 26 U.S.C. § 4705(a) and 18 U.S.C. § 2.

The defendants were jointly tried on the indictment. At the close of all the evidence,² they moved for a judgment of acquittal or a new trial on the basis of misjoinder. They claimed that no evidence connected Peterson with the January 7th sales or with a conspiracy before January 10th. The court denied the motions but stated that the conspiracy count would be limited to the January 10th sale as there was no evidence connecting Peterson with the earlier sales.

Each defendant was found guilty and sentenced. Peterson received a ten year sentence on Count VI, a five year sentence on Count I, and a one year sentence on Count IV, all to run concurrently. Derringer received a five year sentence on Counts II and VI, a two year sentence on Counts I and III, and a one year sentence on Count IV, all to run concurrently.

The defendants urge that their convictions should be set aside because: (1) the court erred in refusing to grant a severance and new trials; (2) the indictment and the charge to the jury erroneously permitted a conviction on a finding that the defendants had "caused" the drugs and narcotics to be sold; (3) the sales were exempt under § 4705(c) (4); (4) the defendants were deprived of due process of law and a speedy trial because of unreasonable delay in making the arrest after the alleged violations; (5) the evidence as to Derringer on Count VI was insufficient to support the verdict of guilty; and (6) the evidence as to Counts I, II, III and IV was insufficient to justify submitting them to the jury.

SEVERANCE

The defendants contend, and properly so, that had the conspiracy count been limited to the January 10th sale in the indictment, joinder of Counts II and III, which deal with the January 7th sale, with the other counts would have been improper and the defendants would have been entitled to separate trials.³ Therefore, they argue that they are entitled to new and separate trials as a matter of law.

We disagree. This issue was resolved in Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960).⁴ There, in a five to four decision, the Supreme Court stated:

"The allegations of the indictment having met the explicit provisions of Rule 8(b) as to joinder of defendants, we cannot find clearly erroneous the finding of the trial court and the Court of Appeals that no prejudice resulted from the joint trial. * * *

* * * * * *

"* * * Nor can we fashion a hard-and-fast formula that, when a conspiracy count fails, joinder is error as a matter of law. * * *"

Id. at 513-14, 516, 80 S.Ct. at 947.

This is the rule absent a showing of bad faith on the part of the government in bringing the indictment. United States v. Manfredi, 275 F.2d 588 (2d Cir.), cert. denied, 363 U.S. 828, 80 S.Ct. 1598, 4 L.Ed.2d 1523 (1960). No such allegation has been made here.

The Supreme Court, in rejecting the idea of retroactive misjoinder, held that if joinder is permitted by Rule 8(b), Fed.R.Crim.P., subsequent motions for severance will be controlled by Rule 14, Fed.R.Crim.P. The Court observed:

"* * * We do emphasize, however, that, in such a situation, the trial judge has a continuing duty at all stages of the trial to grant a severance if prejudice does appear. And where, as here, the charge which originally justified joinder turns out to lack the support of sufficient evidence, a trial judge should be particularly sensitive to the possibility of such prejudice. * * *"

Id. at 516, 80 S.Ct. at 948.

The admonition to be "particularly sensitive" recognized that conspiracy trials abound with potential prejudice:

"A co-defendant in a conspiracy trial occupies an uneasy seat. There generally will be evidence of wrongdoing by somebody. It is difficult for the individual to make his case stand on its own merits in the minds of jurors who are ready to believe that birds of a feather flocked together. * * *"

Krulewitch v. United States, 336 U.S. 440, 454, 69 S.Ct. 716, 93 L.Ed. 790 (1949). It was this fear of the creation of a "subtle bond" between the co-defendants which led the four-man minority in Schaffer to the conclusion that it should be made a hard-and-fast rule that a misjoinder occurs whenever the conspiracy count, upon which it is based, fails for lack of evidence. The majority, however, felt that through the proper exercise of its discretion, the trial court could protect both the defendants' interest in a fair trial and society's interest in efficient judicial administration. The abuse of this discretion being always subject to review by the appeals courts.

We do not believe that the District Court abused its discretion:

(1) Each of the defendants was represented by his own counsel. United States v. Schaffer, 266 F.2d 435 (2d Cir. 1959), aff'd, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed. 2d 921 (1960).

(2) Testimony as to the defendants' participation in the offenses was clear and convincing. It established that two separate sales had taken place and that Peterson had only participated in one of them. There was very little opportunity for the jury to be confused. The principal government witness was an undercover agent who testified that he had participated in both transactions. The defendants took the stand on their own behalf and testified that they had not been involved in either sale. Thus, the only real question was whether the jury would believe the testimony of the undercover agent or the defendants.

(3) Only two defendants were involved. Thus, the danger that the jury would fail to consider personal guilt was minimal. The limited number of defendants distinguishes this case from Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), relied upon by the defendants. There, thirty-two defendants were listed in the indictment and nineteen were brought to trial. Although one conspiracy was charged, the testimony indicated that, in fact, there were eight separate conspiracies. The Supreme Court held that the dangers of jury confusion and of guilt by association under those circumstances were so great that the conviction had to be set aside.

(4) The trial court, in its charge to the jury, made a conscious effort to separate the testimony as to each count. It indicated which of the defendants was charged on each count and stated what had to be proved to establish guilt on each one. No objection was made to the instructions.

The defendants now contend that the instructions were defective in that they failed to state that Derringer's alleged statements and acts prior to January 10th could not be considered as evidence against Peterson. The trial court agreed to give the instruction, but neglected to do so. The defendants give no reason for failing to bring the court's attention to the omission. Their failure to do so obviates the necessity of our considering this contention (Rule 30, Fed.R. Crim.P.) unless we apply the plain error rule (Rule 52(b), Fed.R.Crim.P.).

While the defendants have failed to demonstrate why we should apply the plain error rule, its application would not change our view on the ultimate disposition of this case.

The charge, when read as a whole, made it clear to the jury that two separate sales were alleged and that the evidence as to each sale was to be considered as relating only to that sale. We can say with fair assurance, after reading the entire charge and considering all the evidence, that the verdict was not swayed by the failure to give the requested instruction.

The defendants would also distinguish Schaffer on the ground that, in Schaffer, the defendants insisted on an acquittal and, here, they were willing to accept a new trial. We do not believe that the distinction dictates a contrary result. The rationale of Schaffer makes it clear that the determining factor in refusing or granting severance is not the type of relief sought by the defendants but rather the prejudice resulting from the joinder. Had the Supreme Court, in Schaffer, found prejudice, it could have ordered a new trial even though the motion below was for an acquittal. 28 U.S.C. § 2106.⁵

THE VALIDITY OF THE INDICTMENT AND THE COURT'S CHARGE

The defendants' second contention is that both the indictment and the court's charge to the jury were fatally defective because they authorized a conviction upon proof that the defendants "caused" the narcotics to be sold when, under § 4705(a),⁶ the actual act of selling is declared...