U.S. v. Beasley

• Decision Date: 05 September 1975
• Docket Number: No. 74-1338,74-1338
• Citation: 519 F.2d 233
• Parties: 75-2 USTC P 9725 UNITED STATES of America, Plaintiff-Appellee, v. Noble C. BEASLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 233

519 F.2d 233

75-2 USTC P 9725

UNITED STATES of America, Plaintiff-Appellee, v. Noble C. BEASLEY, Defendant-Appellant.

No. 74-1338.

United States Court of Appeals Fifth Circuit.

Sept. 5, 1975.

Jonathan Shapiro, Boston, Mass., for defendant-appellant.

Charles S. White-Spunner, U. S. Atty., Irwin W. Coleman, Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before COLEMAN, MORGAN and CLARK, Circuit Judges.

CLARK, Circuit Judge:

Noble C. Beasley, James H. Finley, Roy S. Matthews and Reginald Wilson, were jointly indicted for conspiracy to distribute heroin in Mobile County, Alabama, from October 1, 1970 until August 31, 1972 in violation of 21 U.S.C. § 846. Beasley and Finley were also charged in separate counts of the same indictment with making and subscribing false income tax returns Beasley for the calendar years 1970 and 1971, and Finley for the year 1971 and for willful evasion of income taxes for the calendar year 1971. ¹ Beasley's three codefendants pleaded guilty during the course of trial. Beasley did not. The jury found him guilty of conspiracy, filing a fraudulent tax return and tax evasion. Based upon this verdict the court sentenced him to consecutive terms totaling 23 years.

Through new counsel in this court, Beasley attacks the court's refusal to sever his trial from that of the other three codefendants; the correctness of the court's charge to the jury; the legal sufficiency of the indictment; the methodology, accuracy, and sufficiency of the government's proof on the tax counts; the court's refusal to require production of exculpatory evidence; the sentences imposed; and the limitation on cross-examination of the government's chief witness.

Several of these assignments demonstrate error by the trial court but none were the subject of objections at trial. Thus, their impact must be tested under the strict standards of plain error. F.R.Crim.P. 52(b). "The rule is invoked only where the error complained of seriously affects the fairness or integrity of the trial and the appellate court must take notice of it to avoid a clear miscarriage of justice." Accord, Moore v. United States, 399 F.2d 318, 319 (5th Cir. 1968), cert. denied, 393 U.S. 1098, 89 S.Ct. 893, 21 L.Ed.2d 789 (1969); Mims v. United States, 375 F.2d 135, 147 (5th Cir. 1967); United States v. Resnick, 488 F.2d 1165 (5th Cir. 1974). Each case must be judged upon its own individual facts in making the determination. E. g., United States v. Barcenas, 498 F.2d 1110, 1113 (5th Cir. 1974). Finding that none of these errors so affected Beasley's substantial rights as to warrant a new trial, we affirm except as to his fraudulent tax return sentence.

I. SEVERANCE

From the outset, Beasley asserted that his trial should be severed from any trial of the other three coindictees since their joinder was improper under Fed.R.Crim.P. 8(b). This rule permits joinder in an indictment only where the defendants' alleged violations of law "have arisen out of the same act or series of acts." The government insists that the indictment satisfies Rule 8(b) since the proof of the conspiracy provides a source for income unreported by Beasley and Finley and joinder of the separate tax counts was necessitated by the fact that it was not known prior to trial whether Beasley or Finley would admit to ownership of two automobiles purchased during the tax year at issue the titles to which were in Finley, but Beasley was paying for them.

The trial court's refusal to sever under Rule 8(b) was correct. Joinder of separate income tax offenses against coconspirators also charged in the indictment on that conspiracy is proper where the underlying crime generated the alleged income tax violations. United States v. Issacs, 493 F.2d 1124, 1158-59 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974); United States v. Roselli, 432 F.2d 879, 899 (9th Cir.), cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828.

Beasley argues in the alternative that he was entitled to a discretionary severance under Fed.R.Crim.P. 14. United States v. Marionneaux,514 F.2d 1244 (5th Cir. 1975). 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 (1969). We find no abuse of discretion.

The government asserts that in any event Beasley was effectively granted a severance through the acceptance of guilty pleas from all three of his codefendants before his case went to the jury. This is a non sequitur. Indeed, the strong probability of prejudice to Beasley emanating from the guilty pleas of all three of his codefendants casts a substantial shadow on the fairness of the trial proceedings. Wilson and Matthews, coindictees on the conspiracy count both entered guilty pleas on the third day of trial. Beasley immediately requested but was denied both a mistrial and a continuance. Three trial days later Finley, Beasley's coindictee on the conspiracy count and indicted on separate counts of tax evasion and filing a false tax return, entered a plea of guilty on the tax evasion count in exchange for the prosecution's dismissal of the other two counts. At this point, Beasley renewed his motion for a mistrial, or in the alternative for a continuance. Again the trial court refused both. Beasley thus the sole defendant remaining when the case went to the jury, now contends that, although the codefendants' pleas were taken outside the jury's presence, the court's failure to explain their absence during the remainder of trial probably led to a jury assumption that the others had pleaded guilty. He fears that the jury erroneously took this assumption of their guilt into account when weighing his guilt.

This was a lengthy trial. As the evidence before the jury mounted, defendants began to disappear without explanation. It is possible that some jurors may have attributed their absences to dismissal, severance, mistrial, illness or some condition short of confessed guilt. However, they were told nothing of the reasons why Beasley's case alone remained for their consideration, nor were they advised of what they were to make of the fact that the others were gone in judging Beasley's case. It is thus equally possible that the jury surmised that pleas of guilty caused the disappearance of Matthews, Wilson and Finley. If this is what they thought, did it affect their weighing of Beasley's guilt?

" Most experienced trial judges think the best, safest and fairest procedure to all is a simple and honest statement to the jury as to why codefendants are no longer such." ² United States v. Jones, 425 F.2d 1048, 1054 (9th Cir. 1970), cert. denied, 400 U.S. 823, 91 S.Ct. 44, 27 L.Ed.2d 51 (1970). Indeed, in the absence of some stated reason for a codefendants departure, a jury might speculate that a guilty plea has been entered which implicates all the defendants. United States v. Crosby, 294 F.2d 928, 948 (2nd Cir. 1961), cert. denied, 368 U.S. 984, 82 S.Ct. 599, 7 L.Ed.2d 523 (1962); Osborne v. United States, 371 F.2d 913, 924 (9th Cir. 1967), cert. denied, 387 U.S. 946, 87 S.Ct. 2082, 18 L.Ed.2d 1335 (1967). A statement advising the jury that a codefendant has pleaded guilty coupled with an instruction that such plea cannot be considered as evidence of the guilt of the remaining defendant will prevent improper inferences that the codefendants' absence has something to say for the remaining defendant's guilt. See United States v. Earley, 482 F.2d 53, 59 (10th Cir.), cert. denied, 414 U.S. 1111, 94 S.Ct. 841, 38 L.Ed.2d 738 (1973). In every case, they surely assist the jury in keeping the "condition of the record" straight. United States v. Soares, 456 F.2d 431 (10th Cir. 1973).

The factors warranting the issuance of an insulating instruction on the trial of the case at bar are several. First, one of the counts in the indictment named the four defendants as the only identified persons charged with a conspiracy to distribute heroin. The crime of conspiracy by its very nature may lend itself to an improper jury finding of guilt by association with those found to be participants in the conspiracy rather than the required finding of guilt based upon proof beyond a reasonable doubt that the defendant participated in the conspiracy. This danger of transferred guilt is acute in this case where the evidence against the sole remaining defendant repeatedly refers to his relationship with persons who have suddenly and unexplainedly disappeared from the trial. "The potential prejudice of such an occurrence is obvious . . ." Hudson v. North Carolina, 362 U.S. 697, 702, 80 S.Ct. 1314, 1317, 4 L.Ed.2d 1500 (1960). See United States v. Kimbrew, 380 F.2d 538, 540 (6th Cir. 1967); United States v. Dardi, 330 F.2d 316, 332-333 (2nd Cir.), cert. denied, 379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50 (1965). ³ Furthermore the Supreme Court, in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), has taught that in a conspiracy case involving numerous defendants with various degrees of involvement in the confederation, the possibilities of injustice to particular individuals becomes so great that extraordinary precaution is required in the giving of instructions which will ensure that an individual defendant does not lose his identity in the mass.

Secondly, the possibility of confusion, if not prejudice, existed as to the tax counts. Even though Beasley was charged separately, Finley too was charged with the crimes of tax evasion and filing of a false return for the same year. The evidence submitted by the prosecution at trial to show expenditures by Beasley actually included some items (most notably the two automobiles) which were titled to Finley. Thus, through the proof, each was implicated in the separate tax case of the other i. e., if the jury felt that Finley had pleaded guilty to the tax evasion...