Roth v. United States, No. 7687.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: PICKETT, LEWIS, and BREITENSTEIN, Circuit
• Citation: 339 F.2d 863
• Parties: Thomas M. ROTH, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: No. 7687.
• Decision Date: 23 December 1964

339 F.2d 863 (1964)

Thomas M. ROTH, Appellant,
v.
UNITED STATES of America, Appellee.

No. 7687.

United States Court of Appeals Tenth Circuit.

December 23, 1964.

339 F.2d 864

Alex Stephen Keller, Denver, Colo. (Frederick Epstein, Denver, Colo., on the brief), for appellant.

David Shedroff, Asst. U. S. Atty. (Lawrence M. Henry, U. S. Atty., and James P. McGruder, Asst. U. S. Atty., on the brief), for appellee.

Before PICKETT, LEWIS, and BREITENSTEIN, Circuit Judges.

BREITENSTEIN, Circuit Judge.

This is a direct appeal from a sentence imposed after a jury verdict of

339 F.2d 865

guilty. The indictment names 8 defendants and has 13 counts, each of which charges the uttering of false documents and the making of false statements to influence the action of the Federal Housing Administration in violation of 18 U.S.C. § 1010. Each count also charges the violation of 18 U.S.C. § 2, the general aiding and abetting statute. Appellant Roth and Margery Kincheloe were named as defendants in every count. One Venable was named in Counts I, II, and III. The remaining 5 defendants were each named in two of the remaining counts. Kincheloe was the secretary and appellant the manager of companies which dealt in aluminum siding and other supplies. Each count of the indictment covered a transaction with different home owners. The defendants other than Kincheloe and Roth were salesmen for the building supply companies

Kincheloe and Roth moved for a separate trial. The court separated the counts and tried Kincheloe, Roth, and Venable on Counts I, II, and III. Kincheloe was freed on a motion for judgment of acquittal. Roth and Venable were found guilty by the jury. Venable is not a party to this appeal.

The offenses were properly joined in the indictment under Rule 8, F.R.Crim.P., because they were of the same or similar character and grew out of a common plan of operation. The grant of a separate trial under Rule 14, F.R.Crim.P., is within the discretion of the trial court.¹ The action of the trial court separating the counts pertaining to Roth, Kincheloe, and Venable was not an abuse of discretion. The procedure followed was fair and expeditious.

Counsel objects to the receipt in evidence of statements made by Venable, the salesman, to the home owners, and of documents used by Venable. The falsity of these statements and documents is not questioned. Roth, who was Venable's superior, is said to be an aider and abettor. The record shows that Roth visited each home owner named in the first three counts after the negotiations were instituted by Venable and that Roth personally made kick-backs promised by Venable. These actions on his part aided and abetted the offenses committed by Venable.

This was not a mass conspiracy trial such as was condemned in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557; nor was it a trial of multiple defendants on unrelated transactions such as occurred in Ward v. United States, 110 U.S.App. D.C. 136, 289 F.2d 877. The aiding and abetting provisions of 18 U.S.C. § 2 state "a rule of criminal responsibility for acts which one assists another in performing."² To be an aider and abettor requires that a defendant ...