U.S. v. Barney
| Decision Date | 17 January 1978 |
| Docket Number | No. 77-1880,77-1880 |
| Citation | 568 F.2d 134 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Royal BARNEY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Susan F. Mandiberg, Portland, Or., submitted on the briefs, for defendant-appellant.
John S. Ranson, Asst. U. S. Atty., Portland, Or., submitted on the briefs, for plaintiff-appellee.
Appeal from the United States District Court for the District of Oregon.
Before BROWNING, GOODWIN and KENNEDY, Circuit Judges.
The joinder of the charge against appellant and Johnson of knowingly transporting a stolen vehicle in interstate commerce with the charge against Johnson of perjury did not violate Fed.R.Crim.P. 8(b). The perjury count against Johnson alleged that he lied to the grand jury about a receipt found in appellant's possession when appellant was apprehended while driving the stolen truck. This receipt, which bore Johnson's fingerprint, was relevant evidence against appellant on the stolen vehicle charge as well as against Johnson on the perjury count. Thus, Johnson's alleged false testimony related directly to the illegal transaction with which appellant was charged. See United States v. Friedman, 445 F.2d 1076, 1083 (9th Cir. 1971). Indeed, the facts underlying the joined offenses were so intertwined that most of the evidence admissible in proof of one was also admissible in proof of the other. In these circumstances joinder served the purpose of Rule 8(b): It permitted significant gains in trial efficiency without subjecting the defendants to substantial prejudice. United States v. Martin, 567 F.2d 849 (9th Cir. 1977); United States v. Satterfield, 548 F.2d 1341, 1344 (9th Cir. 1977); United States v. Friedman, supra ; United States v. Roselli, 432 F.2d 879, 899 (9th Cir. 1970).
The holding in Metheany v. United States, 365 F.2d 90, 94 (9th Cir. 1966) is consistent with this principle. Joinder was held improper in Metheany because the joined offenses were not connected and were "not provable by the same evidence". United States v. Roselli, 432 F.2d 879, 901 n.4 (9th Cir. 1970); United States v. Martin, 567 F.2d 849 (9th Cir. 1977). Language in footnote 5 of the Metheany opinion suggesting that perjury may never be joined with another charge in a multiple-defendant indictment is dictum rejected in subsequent cases. In United States v. Friedman, 445 F.2d 1036 (9th Cir. 1971), a charge of perjury was held properly joined with other offenses in a multiple-defendant indictment. In United States v. Roselli, 432 F.2d 879 (9th Cir. 1970), the offense of making a false statement in an income tax return was held properly joined with other offenses in a multiple-defendant indictment.
The trial court did not abuse its discretion in denying appellant's motion to sever. Nothing peculiar to this case made joinder unduly prejudicial. Roselli, supra at 901-02; Friedman, supra at 1083.
The government's delay in filing the complaint after the commission of the crime did not deny appellant due process. There is no evidence of actual prejudice and no showing that the government intentionally delayed to harass appellant or gain a tactical advantage. United States v. Marion, 404 U.S. 307, 325-26, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Nor was appellant denied his right to a speedy trial by post-accusation delay. As appellant concedes, he failed to timely assert his right. In any event, he was not incarcerated, and his general allegations of financial and tactical disadvantage are insufficient. United States v. Simmons, 536 F.2d 827, 832 (9th Cir. 1976).
We reject appellant's contention that he was denied due process because the trial court waited until after the jury had been selected to rule upon the motion to reconsider the magistrate's denial of appellant's motion to sever, thus making favorable consideration of the motion to reconsider unlikely. The record indicates that the trial judge had decided before the jury was selected...
To continue reading
Request your trial
-
Rxusa Wholesale v. Dept. of Health and Human Serv., 06-CV-5086 (JS)(AKT).
...Hispanic Counseling Ctr., Inc. v. Incorporated Vill. of Hempstead, 237 F.Supp.2d 284, 290 (E.D.N.Y.2002); see also United States v. Barney, 568 F.2d 134, 136 (9th Cir.1978). Counsel for Plaintiffs agreed on the record during the hearing to reduce the time to one day. Defendants' counsel ask......
-
U.S. v. Ford
...it understandable, but was probative of the trustees' intent in surrendering control to Armstrong's corporation. Cf. United States v. Barney, 568 F.2d 134, 135 (9th Cir.), cert. denied, 435 U.S. 955, 98 S.Ct. 1586, 55 L.Ed.2d 806 (1978) (per curiam) (joinder proper under Rule 8(b) because p......
-
Wilson v. Marshall
...J.)(shortening the time period for objections because "exigencies of the calendar require[d]"it)(quoting United States v. Barney, 568 F.2d 134, 136 (9th Cir. 1978), cert denied, 435 U.S. 955, 98 S.Ct. 1586, 55 L.Ed.2d 806 (1978)(holding that trial court did not err in providing parties less......
-
U.S. v. Grey Bear
...scheme to gain control of gambling enterprises), cert. denied, 454 U.S. 857, 102 S.Ct. 307, 70 L.Ed.2d 152 (1981); United States v. Barney, 568 F.2d 134 (9th Cir.) (defendants both charged with transporting stolen vehicle in interstate commerce, offense in which common plan is implicit; per......