Schaffer v. United States, 14980.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: HUTCHESON, , and RIVES and TUTTLE, Circuit
• Citation: 221 F.2d 17
• Parties: Clyde L. SCHAFFER and James H. Devenny, Appellants, v. UNITED STATES of America, Appellee.
• Docket Number: No. 14980.,14980.
• Decision Date: 08 April 1955

221 F.2d 17 (1955)

Clyde L. SCHAFFER and James H. Devenny, Appellants,
v.
UNITED STATES of America, Appellee.

No. 14980.

United States Court of Appeals, Fifth Circuit.

April 8, 1955.

221 F.2d 18

Thomas C. Wicker, Jr., New Orleans, La., Dave Caton, Pensacola, Fla., for appellants.

C. W. Eggart, Jr., Asst. U. S. Atty., Pensacola, Fla., Harrold Carswell, U. S. Atty., Tallahassee, Fla., for appellee.

Before HUTCHESON, Chief Judge, and RIVES and TUTTLE, Circuit Judges.

RIVES, Circuit Judge.

Appellants, Schaffer and Devenny, were charged by indictment with unlawfully receiving, concealing and retaining with intent to convert to their own use and gain certain property of the United States, viz.: 1 SNJ Airplane Propeller and 10 SNJ Airplane Landing Gear Struts, which property had theretofore been stolen, as the said Schaffer and Devenny then and there well knew, the value of said property being more than $100, in violation of Title 18, Section 641, United States Code. The only disputed issue of fact was whether Schaffer and Devenny, at the time they received, retained, and sold the property, knew that it had been stolen.

On two previous trials, the jurors had been unable to agree and mistrials had been declared. On motions filed by Schaffer and Devenny, the judge who had presided at the previous trials had granted a change of venue and had recused himself. Tried to a jury and before a different judge, each defendant was found guilty, and was sentenced to imprisonment for a period of two years.

The Government's principal witnesses were James T. Boatwright, Roy L. Tanksley, and Robert W. Fellman. Fellman was an agent for the Federal Bureau of Investigation who testified as to a confession obtained from Schaffer. Boatwright and Tanksley had confessed to stealing the property in question and while awaiting sentence on their conviction of such charge, turned state's evidence. They were enlisted men in the United States Navy stationed at Whiting Field, an auxiliary base approximately thirty miles from the Main Base of the United States Naval Air Station at Pensacola, Florida. Schaffer and Devenny had worked part time at Aircraft Parts and Supply Company, owned by Walter Williams and located approximately three miles from the Main Base. Williams' conviction of receiving other Government property knowing that it had been stolen by Boatwright and Tanksley was affirmed by this Court in Williams v. United States, 208 F.2d 447.

The contention of each appellant that the court erred in denying his motion for judgment of acquittal is without merit, the issues on such motions being almost identical with the issues on a like motion in Williams v. United States, supra.

Devenny moved that he be given a separate trial and supported such motion by affidavit of his counsel,

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"that the trial of this cause will be the third trial of this matter, the two previous trials having resulted in deadlocked juries. In neither trial of this case has a confession been introduced against defendant, Devenny. In the last trial of this case, a confession made by defendant Schaffer admitting the offense and implicating defendant, Devenny, was admitted in evidence. This was extremely prejudicial to defendant, James H. Devenny. Defendant, James H. Devenny, has made a statement to authorities but did not admit in it that he committed an offense. Devenny\'s statement was not used in either of the previous trials and it will be extremely prejudicial to defendant, James H. Devenny, to force him to trial with defendant, Schaffer, who has made a confession which implicates defendant, Devenny."

Devenny's motion for severance was denied and the defendants were tried jointly. The granting or refusing of a severance is within the trial court's discretion¹ and not subject to review or correction unless that discretion is abused. What constitutes abuse of discretion necessarily depends upon the facts in each particular case. Brady v. United States, 8 Cir., 39 F.2d 312, 313. Under the circumstances of an earlier case, this Circuit held that refusing a severance was not an abuse of discretion, even though the movant's co-defendant had confessed implicating the movant. Raarup v. United States, 5 Cir., 23 F.2d 547. See, also, Johnson v. United States, 6 Cir., 82 F.2d 500; Maxey v. United States, 30 App.D.C. 63; United States v. Fradkin, 2 Cir., 81 F.2d 56; Hall v. United States, 83 U.S.App.D.C. 166, 168 F.2d 161, 4 A.L.R.2d 1193; cf. Dauer v. United States, 10 Cir., 189 F.2d 343, 344.

A careful study of the record in this case, however, leads us to the conclusion that the motion for severance should have been granted. Devenny and Schaffer were together throughout the transaction; both were present on every pertinent occasion. Shaffer's confession implicated Devenny and, while the trial judge eliminated from the confession the statement that "I think that Devenny knew the property was stolen," other parts of the confession clearly prejudiced Devenny in the eyes of the jury. The court, of course, properly instructed the jury to consider the confession as evidence against Schaffer alone, and to disregard it as evidence against Devenny. We believe, however, that the two defendants were so inseparably connected that the jury could hardly have been expected to return a verdict of guilty against one and of not guilty as to the other. There being only two defendants, it would not be very time consuming but entirely practicable to accord them separate trials. Like the Seventh Circuit in the case of United States v. Haupt, 136 F.2d 661, 672, "We doubt if it was within the realm of possibility for this jury to limit its consideration of the damaging effect of such statements merely to the defendant against whom they were admitted." We hold, therefore, that the court erred in denying the appellant Devenny a separate trial.

The appellant Schaffer insists that the court erred in denying his motion for the production of statements signed by him for the Naval authorities on or about June 24, 1952, and for the FBI agent on June 27, 1952, which statements were used in part in the dictation by the FBI agent, in Schaffer's presence, of the statement of July 10, 1952, signed by Schaffer, and which was introduced in evidence. A defendant's signed statement does not come within the purview

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of Rule 16 of the Federal Rules of Criminal Procedure as being a document in the custody of the defendant at the time the Government acquired possession of it. Shores v. United States, 8 Cir., 174 F.2d 838, 843, 844, 11 A.L.R.2d 635. We think the breadth of the demand by defendant Schaffer marks it as a "fishing expedition" designed to probe the strength of the Government's evidence in advance of trial and that the trial court properly denied the motion of the defendant Schaffer for the production of such statements. See United States v. Muraskin, 2 Cir., 99 F.2d 815, 816; United States v. Rosenfeld, 2 Cir., 57 F.2d 74, 76, 77

It is further insisted that the trial court erred in admitting Schaffer's confession in evidence at the conclusion of the testimony of FBI Agent Robert Fellman and without hearing conflicting testimony before determining its admissibility. Prior to the introduction of Schaffer's confession, the United States Attorney, in the absence of the jury, placed the FBI witness on the...