U.S. v. Hatcher

• Decision Date: 08 June 1982
• Docket Number: Nos. 80-5094,80-5098,s. 80-5094
• Citation: 680 F.2d 438
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James C. HATCHER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Haralabos MANETAS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 438

680 F.2d 438

UNITED STATES of America, Plaintiff-Appellee, v. James C. HATCHER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Haralabos MANETAS, Defendant-Appellant.

Nos. 80-5094, 80-5098.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 22, 1981.

Decided June 8, 1982.

William Woodard, Deputy Federal Defender, Miriam L. Siefer, Chief Deputy Federal Defender, Detroit, Mich., for defendant-appellant in No. 80-5094.

Leonard R. Gilman, U. S. Atty., Keith J. Norman, Asst. U. S. Atty., Richard A. Rossman, Former U. S. Atty., Thomas Cranmer, Asst. U. S. Atty., Detroit, Mich., for plaintiff-appellee.

Lawrence S. Strauss, Charles S. Brown (court-appointed), Detroit, Mich., for defendant-appellant in No. 80-5098.

Before KENNEDY and JONES, Circuit Judges, and PECK, Senior Circuit Judge.

JOHN W. PECK, Senior Circuit Judge.

This case involves the consolidated appeals from the convictions of two defendants who were jointly indicted and jointly tried for federal narcotics crimes. Each defendant was charged with three counts that related to possession and distribution of heroin during the months of May to June of 1978, and each defendant was subsequently convicted by a jury on all three of these heroin-related counts. Furthermore, the joint indictment charged defendant Hatcher with two counts of distribution of cocaine in May of 1978. The joint indictment also charged Hatcher with one count of possession of cocaine at the time of his arrest in February of 1979.

The three cocaine counts against Hatcher were tried at the joint trial of Hatcher and defendant Manetas, and Hatcher was convicted by the jury on all three cocaine counts. Because the appeals of Manetas and Hatcher raise entirely separate questions they are treated separately below.

I. No. 80-5098, Defendant Manetas

Manetas contends that the trial court committed reversible error when it failed to grant his pretrial motion for severance. By that motion Manetas sought a separate trial on the ground that the three cocaine counts of the joint indictment related only to codefendant Hatcher, and that a joint trial would therefore prejudice Manetas. Manetas' memorandum to the trial court in support of that motion stated that severance was requested pursuant to Fed.R.Crim.Pro. 14. That rule provides that a court may grant appropriate relief when, in the exercise of its discretion, the court finds that joinder of offenses or of defendants will prejudice either a defendant or the government. The government's response to Manetas' motion focused on the question of prejudice under Rule 14, arguing that Manetas had not carried his burden of showing that a joint trial would unduly prejudice Manetas. After a hearing the district court denied the severance motion on the ground that Manetas had failed to carry his burden under Rule 14.

Unfortunately, in moving for a separate trial Manetas failed to emphasize the requirements of Fed.R.Crim.Pro. 8(b) for joinder of multiple defendants in a single indictment. Rule 8(b) 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.

While it is true that Rule 8(b) should be construed in favor of joinder, United States v. Franks, 511 F.2d 25, 28 (6th Cir.), cert. denied, 422 U.S. 1042, 95 S.Ct. 2654, 45 L.Ed.2d 693 (1975), it is also true that failure to meet the requirements of this rule constitutes misjoinder as a matter of law. Questions of prejudice are properly raised under Rule 14 only if the joinder of multiple defendants is proper under Rule 8(b). If multiple defendants are improperly joined under Rule 8(b) because they are charged with offenses that are unrelated, then they are to be considered as prejudiced by that fact and the trial judge has no discretion on the question of severance. Severance in such a case is mandatory. United States v. Kaplan, 588 F.2d 71, 74 (4th Cir. 1978); United States v. Nettles, 570 F.2d 547, 552 (5th Cir. 1978); Ward v. United States, 289 F.2d 877, 878 (D.C.Cir.1961). See also, United States v. Bova, 493 F.2d 33 (5th Cir. 1974). No federal appellate cases to the contrary have been brought to our attention.

The joinder of multiple defendants is proper under Rule 8(b) only if each of the counts of the indictment arises out of the same act or transaction or series of acts or transactions, even if all counts of the indictment include a common defendant. United States v. Kaplan, supra, at 74; United States v. Martin, 567 F.2d 849, 853 (9th Cir. 1977); United States v. Nettles, supra at 551. In the present case the indictment on its face alleges no connection between Manetas and the cocaine-related charges against Hatcher. Neither does the record reveal any evidence of such a connection. As a matter of law the joinder of Manetas and Hatcher was therefore improper under Rule 8(b).

While a defendant may waive his rights under Rule 8(b) by failure to make a timely motion for severance, United States v. Parson, 452 F.2d 1007, 1008 (9th Cir. 1971), we are of the opinion that Manetas did not waive his Rule 8(b) rights in this case because his motion for a separate trial focused on Rule 14 rather than on Rule 8(b). Manetas' motion for separate trial and his supporting memorandum, though asking for relief under Rule 14, nonetheless called the court's attention to the fact that the joint indictment recited crimes with no alleged connection to Manetas. Furthermore, the government's brief in response to Manetas' severance motion began by reciting Rule 8(b)'s statement that joinder of multiple defendants in the same indictment is permissible only if the defendants are alleged to have participated in the same act or transaction constituting the offense or offenses.

In Cupo v. United States, 359 F.2d 990 (D.C.Cir.1966), cert. denied, 385 U.S. 1013, 87 S.Ct. 723, 17 L.Ed.2d 549 (1967), the District of Columbia Court of Appeals concluded that a defendant had raised and therefore preserved an issue of misjoinder under Rule 8(b) though the facts in Cupo more strongly suggested a waiver of Rule 8(b) than do the facts of the present case. In Cupo a defendant's pretrial motion for severance alleged that offenses charged against him were distinct from the other defendants joined in the indictment and argued that a joint trial would prejudice him. That defendant not only did not mention Rule 8(b) in his severance motion or at the hearing on the motion, but also he did not even argue the issue of joinder on appeal. Nonetheless, the D.C. Circuit concluded that the issue of misjoinder under Rule 8(b) had been raised by the fact of the defendant's argument at the hearing that a charge against him was "distinguishable" from all the other counts and constituted a separate offense. Id. at 992, n.1. The D.C. Circuit then reversed that defendant's conviction on grounds of misjoinder under Rule 8(b).

In the present case, as in Cupo, the issue of proper joinder in the face of an indictment alleging crimes unrelated to a joint defendant was raised. Furthermore, in the present case defendant Manetas has reasserted his contention that joinder was improper on appeal. Under these circumstances we believe that Manetas' motion for a separate trial was minimally sufficient to raise and to preserve the question of misjoinder under Rule 8(b). See, United States v. Bova, 493 F.2d 33, 37 (5th Cir. 1974) (failure to renew motion for severance after properly raised and improperly denied does not waive right to appeal denial).

On appeal the government argued that Manetas has failed to show that he was prejudiced by his joinder with Hatcher and that it was within the district court's discretion to refuse to sever pursuant to Fed.R.Crim.Pro 14. However, unlike the balancing of judicial efficiency against the potential for prejudice that is required by Rule 14, the joinder requirements of Rule 8(b) leave nothing to the discretion of the court. When misjoinder occurs severance is mandatory and failure to sever is error. We can take cognizance of the government's argument that Manetas in fact suffered no prejudice from the improper joinder only by the application of the harmless error rule of Fed.R.Crim.Pro. 52.

We are of the opinion that Rule 52 must be applied with great caution in instances of misjoinder under Rule 8(b). Because misjoinder occurs under Rule 8(b) when a defendant is joined in an indictment containing charges that are unrelated to that defendant, there is a temptation to find that the trier of fact was able to keep the unrelated charge separate from the question of the particular defendant's guilt, and that the misjoinder was therefore harmless. However, to apply this reasoning liberally would nullify the requirements of Rule 8(b). Consequently, we believe that misjoinder should be found harmless only where the unrelated charge and the evidence supporting that charge is such an inconsequential part of the joint indictment and trial that no possible harm from the misjoinder could reasonably have occurred. E.g., United States v. Martin, supra at 854.

Such a situation could occur when the evidence of the improperly joined offense would nonetheless have been admissible to prove the properly joined offenses. United States v. Seidel, 620 F.2d 1006 (4th Cir. 1980); United States v. Granello, 365 F.2d 990, 995 (2d Cir. 1966), cert. denied, 386 U.S. 1019, 87 S.Ct. 1367, 18 L.Ed.2d 458 (1967). In keeping with the requirement that the evidence must be an inconsequential part of the indictment and trial, if the extent of the proof is significantly greater than that reasonably used to demonstrate other crimes or if the focus of the trial is shifted away from proof of the properly joined offense, then prejudice is shown. United States v. Satterfield, 548 F.2d 1341, 1346 (9th Cir. 1977), cert. denied, 439 U.S. 840, ...