Tillman v. United States, No. 25381.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPER CURIAM
Citation406 F.2d 930
PartiesJohn P. TILLMAN, Robert Barber Moore, Johnny C. Wilson, Larry Fox, Donald P. Stone and Michael W. Simmons, Appellants, v. UNITED STATES of America, Appellee.
Decision Date10 March 1969
Docket NumberNo. 25381.

406 F.2d 930 (1969)

John P. TILLMAN, Robert Barber Moore, Johnny C. Wilson, Larry Fox, Donald P. Stone and Michael W. Simmons, Appellants,
v.
UNITED STATES of America, Appellee.

No. 25381.

United States Court of Appeals Fifth Circuit.

January 9, 1969.

Rehearing and Rehearing Denied March 10, 1969.


406 F.2d 931
COPYRIGHT MATERIAL OMITTED
406 F.2d 932
Howard Moore, Jr., Peter E. Rindskopf, Atlanta, Ga., Dennis J. Roberts, Newark, N. J., for appellants

Charles B. Lewis, Jr., Asst. U. S. Atty., Atlanta, Ga., for appellee.

Before WISDOM and AINSWORTH, Circuit Judges, and JOHNSON, Judge.

Rehearing and Rehearing En Banc Denied March 10, 1969.

AINSWORTH, Circuit Judge:

Appellants Tillman, Stone, Wilson, and Fox appeal from a jury verdict finding them guilty of attempting to interfere with the administration of the Universal Military Training and Service Act, in violation of 50 U.S.C. App. § 462.1 In addition, these four appellants, as well as

406 F.2d 933
appellants Moore and Simmons, were found guilty of wilfully injuring property of the United States, in violation of 18 U.S.C. § 1361,2 and likewise these convictions are appealed.3 After a painstaking consideration of the numerous objections of the appellants, we affirm the convictions

On August 18, 1966, appellants and other picketers arrived at the Armed Forces Entry and Examining Station in Atlanta, Georgia, and commenced picketing the station as a protest against the war in Vietnam. On numerous occasions, they attempted to gain admission to the station, allegedly to protest a water-throwing incident of the previous day, but Army personnel, assigned to guard the entrance, prevented them from entering. In the midst of this somewhat confused confrontation, there were numerous inductees who had been ordered to report to the station for induction that day,4 and the testimony of Government witnesses shows that appellants Tillman, Stone, Wilson, and Fox restrained at least one inductee, one Verbon Grimes, from entering the induction center. The testimony of Sergeant Facemire, largely corroborated by the testimony of others assigned to guard the center, showed that while appellant Wilson grabbed Grimes' AWOL bag and appellant Tillman had Grimes by an arm, appellant Stone held his trousers, and appellant Fox had his arms around Stone's waist in order to help pull Grimes back from the entrance. Grimes himself identified all of the appellants who were alleged to have been involved except Stone, but he stated that he could not see the individual who was holding him by his waist. Tillman, the only appellant to testify during the trial, admitted grabbing Grimes, but he said that he did so in a moment of passion to redress a personal affront and not to restrain him from entering the induction center. In addition, Tillman testified that none of the other appellants was involved in the incident.

In regard to the destruction of Government property, the prosecution alleged that all of the appellants wilfully injured a glass door with an aluminum frame, at the north side entrance to the induction station. While all of the Government witnesses were not able to identify all of the appellants as having pushed on the door when it was damaged, all of the appellants were identified as having taken part in the action by at least one witness. Thus, Sergeant Facemire identified all seven appellants as having taken part, and the testimony of Lieutenant England was similar. Sergeant Fuller specifically identified Simmons, Wilson, and Fox.

I.

The appellants allege that the trial court erred in failing to grant their motions for severance, both as to the joinder of offenses and as to the joinder of defendants. In regard to any allegation of misjoinder of offenses,5 the relevant

406 F.2d 934
rule is Rule 8(a) of the Federal Rules of Criminal Procedure
"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."

This rule should not be interpreted in a technical or legalistic sense. 8 Moore, Federal Practice ¶ 8.051, p. 8-19 (2d ed. 1968), citing Cataneo v. United States, 4 Cir., 1948, 167 F.2d 820, 822-823. Where, as here, the offenses arose out of a series of connected acts, trial convenience dictates "that the government should not be made to prove the same facts more than once."6 8 Moore, Federal Practice ¶ 8.05 2, p. 8-19 (2d ed. 1968). See Johnson v. United States, 8 Cir., 1966, 356 F.2d 680, 682. Thus, there was no misjoinder of offenses in the present case.

Similarly, there was no misjoinder of defendants. Rule 8(b) of the Federal Rules of Criminal Procedure states:

"Two or more defendants may be charged in the same indictment or information 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. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count."

In conjunction with a Rule 8(a) joinder of offenses, Rule 8(b) has the effect of permitting joinder of defendants where their alleged violations of law have arisen out of the same act or series of acts. 8 Moore, Federal Practice ¶ 8.06 1, p. 8-23 (2d ed. 1968), citing United States v. Granello, 2 Cir., 1966, 365 F.2d 990, 993; Cupo v. United States, 1966, 123 U.S.App.D.C. 324, 359 F.2d 990; King v. United States, 1 Cir., 1966, 355 F.2d 700, 704-705; Ingram v. United States, 4 Cir., 1959, 272 F.2d 567. Again, since it is apparent that the offenses allegedly committed on August 18, 1966, arose out of a connected series of acts at the induction station, there was no error under Rule 8(b) in trying the appellants together.

Having found that there was no misjoinder of offenses or defendants under Rule 8, it is still necessary to determine whether there was sufficient prejudice to require a severance under Rule 14 of the Federal Rules of Criminal Procedure. Smith v. United States, 5 Cir., 1966, 357 F.2d 486, 489; Bayless v. United States, 9 Cir., 1967, 381 F.2d 67, 72; Brown v. United States, 1967, 126 U.S.App.D.C. 134, 375 F.2d 310, 315. See 8 Moore, Federal Practice ¶ 14.02 1 (2d ed. 1968). Rule 14 states, in relevant part, that

"If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires."

The existence of prejudice, in large measure, depends upon the facts and circumstances of each case, Flores v. United States, 5 Cir., 1967, 379 F.2d 905, 909; Blachly v. United States, 5 Cir., 1967, 380 F.2d 665, 675; Peterson v. United States, 5 Cir., 1965, 344 F.2d 419, 422, and it is axiomatic that the granting of a severance is within the discretion of the trial judge. Smith v. United States, 5 Cir., 1967, 385 F.2d 34, 37.7

406 F.2d 935
The burden of demonstrating prejudice is a difficult one, and the ruling of the trial judge will rarely be disturbed on review. 8 Moore, Federal Practice ¶ 14.02 1, p. 14-3 (2d ed. 1968). The defendant must show something more than the fact that "a separate trial might offer him a better chance of acquittal." Id. at ¶ 14.04 1, pp. 14-10 — 14-11, citing Spencer v. Texas, 385 U. S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); Robinson v. United States, 1954, 93 U.S.App.D.C. 347, 210 F.2d 29. See also Johnson v. United States, 8 Cir., 1966, 356 F.2d 680; Butler v. United States, 8 Cir., 1963, 317 F.2d 249; Smith v. United States, 1950, 86 U.S.App.D.C. 195, 180 F.2d 775

Appellants allege that they were prejudiced and their trial rendered unfair because the jury was unable to collate the evidence and connect the names and faces of each defendant with the independent evidence being offered against him. In essence, it is alleged that the convictions rested upon an unlawful cumulation of evidence, and that had there been separate trials, the appellants would not have been convicted. See, e. g., Drew v. United States, 1964, 118 U.S.App.D.C. 11, 331 F.2d 85, 88; Johnson v. United States, 8 Cir., 1966, 356 F.2d 680, 682; Blachly v. United States, 5 Cir., 1967, 380 F.2d 665, 675, n. 20; Peterson v. United States, 5 Cir., 1965, 344 F.2d 419, 422; United States v. Kahn, 7 Cir., 1967, 381 F.2d 824, 839. See generally 8 Moore, Federal Practice ¶ 8.05 2 (2d ed. 1968). The test for prejudice in this context is

"`* * * whether under all the circumstances of the particular case, as a practical matter, it is within the capacity of the jurors to follow the court\'s admonitory instructions and accordingly to collate and appraise the independent evidence against each defendant solely upon that defendant\'s own acts, statements and conduct. In sum, can the jury keep separate the evidence that is relevant to each defendant and render a fair and impartial verdict as to him? If so, though the task be difficult, severance should not be granted.\'"

Peterson v. United States, 344 F.2d at 422. See also Blachly v. United States, 380 F.2d at 675, n. 20; United States v. Kahn, 381 F.2d at 839. See 8 Moore, Federal Practice ¶ 14.04 1 (2d ed. 1968). Weighing this possibility of prejudice "against the interests of economy and expedition in judicial administration," we do not find an abuse of discretion in the denial of a severance. Smith v. United States, 5 Cir., 1966, 357 F.2d 486, 489. See Drew v. United States, 1964, 118 U.S.App.D.C. 11, 331 F.2d 85; Williams v. United States, 9 Cir., 1959, 265 F.2d 214; Johnson v. United States, 8 Cir., 1966, 356 F.2d 680, 682; Flores v. United States, 5 Cir.,...

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202 practice notes
  • Gooding v. Wilson 8212 26, No. 70
    • United States
    • United States Supreme Court
    • March 23, 1972
    ...out of the same incident, and those convictions were affirmed by the Court of Appeals for the Fifth Circuit. Tillman v. United States, 406 F.2d 930 (1969). The facts giving rise to the prosecutions are stated in the opinion of the Supreme Court of Georgia as follows: 'The defendant was one ......
  • U.S. v. Partin, Nos. 75-3615
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 19, 1977
    ...coconspirators is committed to the sound discretion of the district court, under the test we set forth in Tillman v. United States, 406 F.2d 930, 935 (5th Cir. 1969), citing Peterson v. United States, 344 F.2d 419, 422 (5th Cir. (C)an the jury keep separate the evidence that is relevant to ......
  • U.S. v. Cole, No. 82-5455
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • March 19, 1985
    ...a fair and impartial verdict as to him? If so, though the task be difficult, severance should not be granted. Tillman v. United States, 406 F.2d 930, 935 (5th Cir.), vacated in part, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969), quoted in United States v. McLaurin, 557 F.2d 1064, 1075......
  • U.S. v. Kopituk, No. 80-5025
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • November 4, 1982
    ...States v. Salomon, 609 F.2d 1172, 1175 (5th Cir. 1980); United States v. Marionneaux, supra, 514 F.2d at 1248; Tillman v. United States, 406 F.2d 930, 933 n.5 (5th Cir.), vacated on other grounds, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 Having determined that joinder in this case was pr......
  • Request a trial to view additional results
202 cases
  • Gooding v. Wilson 8212 26, No. 70
    • United States
    • United States Supreme Court
    • March 23, 1972
    ...out of the same incident, and those convictions were affirmed by the Court of Appeals for the Fifth Circuit. Tillman v. United States, 406 F.2d 930 (1969). The facts giving rise to the prosecutions are stated in the opinion of the Supreme Court of Georgia as follows: 'The defendant was one ......
  • U.S. v. Partin, Nos. 75-3615
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 19, 1977
    ...coconspirators is committed to the sound discretion of the district court, under the test we set forth in Tillman v. United States, 406 F.2d 930, 935 (5th Cir. 1969), citing Peterson v. United States, 344 F.2d 419, 422 (5th Cir. (C)an the jury keep separate the evidence that is relevant to ......
  • U.S. v. Cole, No. 82-5455
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • March 19, 1985
    ...a fair and impartial verdict as to him? If so, though the task be difficult, severance should not be granted. Tillman v. United States, 406 F.2d 930, 935 (5th Cir.), vacated in part, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969), quoted in United States v. McLaurin, 557 F.2d 1064, 1075......
  • U.S. v. Kopituk, No. 80-5025
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • November 4, 1982
    ...States v. Salomon, 609 F.2d 1172, 1175 (5th Cir. 1980); United States v. Marionneaux, supra, 514 F.2d at 1248; Tillman v. United States, 406 F.2d 930, 933 n.5 (5th Cir.), vacated on other grounds, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 Having determined that joinder in this case was pr......
  • Request a trial to view additional results

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