U.S. v. Grey Bear

• Decision Date: 13 December 1988
• Docket Number: Nos. 86-5264,86-5265,s. 86-5264
• Citation: 863 F.2d 572
• Parties: UNITED STATES of America, Appellee, v. Loren Michael GREY BEAR, Tayron Dale Dunn, a/k/a Terry Dunn, Leonard George Fox and John Emmanuel Perez, a/k/a John Perez, Appellants. UNITED STATES of America, Appellee, v. Jesse Dean CAVANAUGH, Paul Henry Cavanaugh, Maynard James Dunn, Timothy Sylvester Longie, Jr., Roger Darrel Charboneau, Dwayne Allen Charboneau, Richard John LaFuente, a/k/a Ricky LaFuente, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 572

863 F.2d 572

UNITED STATES of America, Appellee, v. Loren Michael GREY BEAR, Tayron Dale Dunn, a/k/a Terry Dunn, Leonard George Fox and John Emmanuel Perez, a/k/a

John Perez, Appellants.

UNITED STATES of America, Appellee, v. Jesse Dean CAVANAUGH, Paul Henry Cavanaugh, Maynard James

Dunn, Timothy Sylvester Longie, Jr., Roger Darrel

Charboneau, Dwayne Allen Charboneau, Richard John LaFuente,

a/k/a Ricky LaFuente, Appellants.

Nos. 86-5264, 86-5265.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 12, 1988.

Decided Dec. 13, 1988.

Jonathan T. Garaas, Fargo, N.D., for LaFuente.

Mark Fraase, Fargo, N.D., for Fox.

Warren Sogard, Fargo, N.D., for Perez.

David Thompson, Fargo, N.D., for Loren Grey Bear.

Thomas Zimney, Grand Forks, N.D., for Cavanaugh.

Norman Anderson, Asst. U.S. Atty., Fargo, N.D., for appellee.

Before LAY, Chief Judge, and HEANEY, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL and BEAM, Circuit Judges.

PER CURIAM.

This matter comes before the court en banc after a rehearing en banc on the panel's order granting a new trial based on misjoinder of the defendants under Federal Rule of Criminal Procedure 8(b). The en banc court is divided five-to-five on the issue of whether misjoinder occurred and therefore the district court's order finding joinder proper is affirmed based on the equally divided vote of the court en banc. The portions of the court's earlier opinion designated as III, IIIA and IIIB are ordered vacated. The other issues not determined in the panel opinion, United States v. Grey Bear, 828 F.2d 1286 (8th Cir.1987), are ordered referred back to a panel of this court for disposition. See supplementary order issued this date.

Statement of LAY, Chief Judge, with whom HEANEY, McMILLIAN, ARNOLD, and WOLLMAN, join.

The order affirming the district court by an equally divided en banc court has no precedential value. We write solely because of Judge Gibson's filed statement which represents the views of five judges of this court. We respectfully submit the statement, unless responded to, could cause confusion among lawyers and district judges of this circuit. The opposing statement which affirms the district court confuses rules of misjoinder of counts under Rule 8(a) with rules of misjoinder of parties under Rule 8(b). That statement is not in accord with prior decisions of this court and all other courts of appeals and deviates from principles governing misjoinder of parties under 8(b) as enuniciated by the United States Supreme Court. ¹

The opposing statement authored by Judge Gibson suggests that "our earlier decisions are in substantial tension, if not in direct conflict," and that United States v. Bledsoe, 674 F.2d 647 (8th Cir.), cert. denied, 459 U.S. 1040, 103 S.Ct. 456, 74 L.Ed.2d 608 (1982) created a conflict within the circuit. Until now, there has never been any tension or conflict in our decisions concerning joinder under 8(b). All of our decisions have consistently applied the rules governing joinder of parties under Rule 8(b). Until now we have been in accord with all other courts of appeals, established works on federal procedure, and the Supreme Court of the United States. To say Bledsoe was in direct conflict with our earlier decisions because some of them stated that misjoinder is "usually " or "generally " determined "on the face of the indictment alone" is a rhetorical conundrum to say the least. To urge that we should follow United States v. Andrade, 788 F.2d 521 (8th Cir.), cert. denied sub nom. Riley v. United States, 479 U.S. 963, 107 S.Ct. 462, 93 L.Ed.2d 408 (1986) and not Bledsoe is intellectually and legally confusing. Andrade's language is simply the language of Rule 8(b) itself. Andrade relied upon Bledsoe. A rehearing en banc was denied in Bledsoe by the court en banc. Andrade could not overrule it. But ironically Andrade says what we hold here: "Rule 8(b) requires that there be some common activity involving all the defendants which embraces all the charged offenses * * * ." Id. at 529. The opposition statement gives lip service to this requirement and then disavows it, espousing a totally new and unique theory to test joinder under Rule 8(b):

I am satisfied that we are not limited to the language of the indictment alone, and that the existence of an overall scheme is not an ironclad requirement of Rule 8(b) joinder. Rather, we should consider whether the acts are part of a closely related series and whether there is a logical relationship among them.

Opposing statement infra, at 580. The statement thus confuses the liberal test under 8(a) relating to joinder of counts with the more restrictive test of 8(b) relating to joinder of parties. There is no authority for this new theory. In fact, no case or opinion has ever conceived it. Yet five judges of this court now proclaim it to be their understanding of the law.

Thus, the opposing statement reasons that proper joinder under Fed.R.Crim.P. 8(b) exists as long as a defendant participates in one act of a logically related series of transactions, without the necessity of a common scheme connecting the series. Such reasoning renders Fed.R.Crim.P. 8(b) meaningless and causes individual, unrelated defendants to face a joint trial of isolated conduct as long as the overall substantive counts are similar or logically related. This theory of joinder of 8(b) has long been rejected. The requirement of a common scheme and commonality of proof connecting all of the defendants has long been the sine qua non of proper joinder of different defendants under 8(b). It is unfortunate that a gross miscarriage of justice has resulted in a mass trial, because five members of this court misapply established principles of joinder under 8(b) in order to avoid a new trial. The convenience of the government and the court may be served but the denial of a fair trial to the defendants is the exchange.

The issue of prejudice resulting from the joinder is relevant here first because there should be no question under existing case law that there clearly was a misjoinder of defendants under 8(b). Second, there should exist little doubt that prejudice subsumed that misjoinder.

The indictment alleged the joinder of eleven ² defendants charged with one count of first degree murder and one count of assault to do great bodily harm. Even though there was no conspiracy or common scheme alleged, all defendants were named in both counts and therefore as to those two counts the defendants were properly joined under Fed.R.Crim.P. 8(b). However, the mere fact of joinder of all defendants under counts one and two does not provide sufficient commonality of plan or scheme to provide proper joinder for other unrelated counts. The government's case on the murder and assault charges was extremely weak and consisted primarily of conflicting testimony given by individual witnesses who were inebriated at the time the events occurred. Some of the defendants charged with murder were guilty of little more than being present at the time Peltier was beaten. As demonstrated in our earlier opinion, there was clearly insufficient evidence of murder or assault as to all but two of those charged. On the petition for rehearing the government did not challenge that finding. Under the circumstances it is readily apparent why the government disavowed that any conspiracy or common scheme to commit murder or assault was involved. ³ Yet, joined with counts one and two are the separate and unrelated deeds of four of the defendants with subsequent, separate acts of perjury and of witness intimidation. The government has never claimed in the district court or in this court that each of the defendants charged in counts one and two ever took part in, knew of or acquiesced in the separate acts of perjury and intimidation. There was never alleged any joint scheme or conspiracy among all of the defendants to connect the separate counts. As stated, when trial commenced, the government informed the district court and the jury it would not attempt to prove a conspiracy among any of the defendants. ⁴

Rule 8(b) reads:

(b) Joinder of Defendants. 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.

No plainer, clearer proof of misjoinder of defendants can be stated than that which is evidenced by comparing the various counts of the indictment and Rule 8(b) itself.

Rule 8(b) by its own terms does not require each defendant to have participated in all of the counts, but it does specifically require each defendant to have participated in the "same series of acts or transactions." This clearly means that there must be some common conspiracy or scheme connecting all acts of the series in order to provide proper joinder. ⁵ Yet, under the analysis of the judges finding proper joinder, there need be no connection between the defendants as long as the acts alleged to be in the series are logically or closely related. Again this is a basic misconception confusing joinder of similar counts under Rule 8(a) and does not confront the problem of joinder of different defendants under Rule 8(b).

No clearer case of prejudice from such misjoinder can exist than the joint trial of defendants Perez and LaFuente, ⁶ charged with murder, along with three other defendants charged with perjury and intimidation of witnesses relating to the same homicide. Neither Perez nor LaFuente was alleged or shown to be involved in, or even to have known about the alleged perjury and witness intimidation by the other three defendants. Perez and LaFuente denied their complicity in the murder and offered credible evidence, that if believed, would have allowed the...