U.S. v. Leach

• Decision Date: 17 March 1980
• Docket Number: No. 79-5051,79-5051
• Citation: 613 F.2d 1295
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harrison Odell LEACH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1295

613 F.2d 1295

UNITED STATES of America, Plaintiff-Appellee, v. Harrison Odell LEACH, Defendant-Appellant.

No. 79-5051.

United States Court of Appeals Fifth Circuit.

March 17, 1980.

William K. Jennings, Fort Walton Beach, Fla., for defendant-appellant.

Emory O. Williams, Jr., Thomas R. Santurri, Asst. U. S. Attys., Pensacola, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before GODBOLD, HILL and POLITZ, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Harrison Leach was convicted by a jury of one count of violating 18 U.S.C.A. § 371 by conspiring to commit offenses against the United States, specifically mail fraud in violation of 18 U.S.C.A. §§ 1341 and 1342, and of seven counts of mail fraud in violation of these same statutes. On appeal he asserts that the trial court erred in (1) denying his motion for dismissal of count one and for severance pursuant to Rule 8(b) or Rule 14 of the Federal Rules of Criminal Procedure; (2) unduly restricting defense counsel's cross-examination of a government witness; and (3) allowing into evidence exhibits and statements of co-conspirators. We reject appellant's arguments and affirm his convictions.

A twenty-seven count indictment was returned against Harrison Leach, Rosemary Leach (his wife), Clarence Marler, Ronnie Steele, and Wilfred Reed. Count one charged all with a single conspiracy; counts two through six charged Harrison and Rosemary Leach, Marler, and Steele with interstate transportation to promote arson; counts seven through seventeen charged Harrison and Rosemary Leach, Marler, and Steele with mail fraud; counts eighteen through twenty-five charged Marler, Steele and Reed with mail fraud; and counts twenty-six and twenty-seven charged Marler and Steele with mail fraud.

Prior to trial and several times during the trial appellant moved for, Inter alia, dismissal of count one and severance. He also made pre-trial motions to suppress statements made by co-defendants. Before trial began, Rosemary Leach was severed for health reasons. Trial on the twenty-seven count indictment commenced with Harrison Leach, Marler, Steele and Reed as co-defendants. At the close of the government's evidence, the trial judge determined that the evidence against appellant was insufficient to justify a conviction as to counts two through six (interstate transportation to promote arson), and fourteen through seventeen (certain mail fraud counts). He made similar determinations regarding other counts and other defendants and instructed During defendant Reed's testimony, the trial court determined that his defense was antagonistic to the defenses of Marler and Steele and granted Marler and Steele's motion for mistrial, severed their cases, and ordered that they be rescheduled for trial.

the jury that only the conspiracy count and certain substantive counts remained for their consideration.

Count seven was inadvertently omitted from the jury's consideration and after the trial the court dismissed that count. The jury found defendants Leach and Reed guilty of all counts submitted to them.

JOINDER

Appellant's arguments that the trial court erred in not granting his motions to dismiss count one and to sever on the basis of Rule 8(b) Federal Rule of Criminal Procedure (joinder of defendants) are intertwined. Appellant asserts that count one in fact charged three conspiracies, not a single conspiracy, and that the joinder of defendants was improper under Rule 8(b) because neither the "conspiracies" nor the substantive counts alleged that the defendants "participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses" as Rule 8(b) requires. According to appellant, the conspiracy count (including the overt acts alleged) and the substantive counts allege that: (1) Marler and Steele conspired to defraud Nationwide Insurance Company in 1974 in connection with a fire at one house; (2) Marler, Steele and Reed conspired to defraud the Insurance Company of North America in 1975 and the early part of 1976 in connection with a fire at a different house; and (3) Marler, Steele, Harrison Leach and Rosemary Leach conspired to defraud Travelers Insurance Company in 1976 in connection with another fire at a third house. Appellant emphasizes the different properties, times, insurance companies, and groups of alleged conspirators. He also asserts that there was no evidence in the case that he had any knowledge whatever of defendant Reed, Brief of Appellant, at 46.

Appellant argues that Supreme Court opinions, especially Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), and Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 (1947), dealing with conspiracy and opinions of this circuit involving Rule 8(b), especially United States v. Marionneaux, 514 F.2d 1244 (5th Cir. 1975), Cert. denied, Partin v. United States, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977), United States v. Levine, 546 F.2d 658 (5th Cir. 1977), and United States v. Nettles, 570 F.2d 547 (5th Cir. 1978), support his position. While appellant has cited language in these opinions that might appear to lend weight to his argument and has pointed to factual similarities between this case and cases where this court has found joinder improper under Rule 8(b), we find that a closer examination of the cases, especially those from this circuit, indicates that his claim cannot prevail.

Kotteakos involved an indictment that charged defendants with a single conspiracy. On appeal the government admitted that the evidence proved not one but several conspiracies and the Court held that the variance was a permeating error that affected the substantial rights of the defendants "when the only nexus among them lies in the fact that one man participated in all," Id. 328 U.S. at 773, 66 S.Ct. at 1252. In Blumenthal five defendants were convicted of conspiring to sell whiskey at prices above the ceiling set by federal statute and regulation. The Court distinguished the facts from those in Kotteakos, stating:

The scheme was in fact the same scheme; the salesmen knew or must have known that others unknown to them were sharing in so large a project; and it hardly can be sufficient to relieve them that they did not know, when they joined the scheme, who those people were or exactly the parts they were playing in carrying out the common design and object of all. By their separate agreements, if such they were, they became parties to the larger common plan, joined together by their knowledge of its essential features Id. at 558, 68 S.Ct. at 257. Appellant focuses on dicta in United States v. Elliott, 571 F.2d 880, 991 (5th Cir.), Cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978), to support his assertion that the rationale of Blumenthal does not apply where remote members "are not truly interdependent or where the various activities sought to be tied together cannot reasonably be said to constitute a unified scheme," Id. at 901.

and broad scope, though not of its exact limits, and by their common single goal.

Several possible tests for determining that a single conspiracy exists emerge from this brief review of an extremely complicated area of law that the alleged conspirators: knew or should have known of the scope of the conspiracy; shared a common single goal; benefitted from each others' activities or participation; or, that the activities constituted a single unified scheme.

The indictment in the instant case charged that five persons conspired to commit offenses against the United States specifically, mail fraud and interstate travel with the intent to promote arson more specifically, that they conspired to devise a scheme to defraud various insurance companies in connection with fires that destroyed certain residences and used the mails to attempt to execute this scheme, and that they conspired to travel in interstate commerce with the intent to promote arson. Appellant argues that the enumeration of overt acts and substantive counts belies this assertion that all conspired together.

Of course the fact that Leach may have been the last to join the conspiracy has no bearing on this issue for it is not necessary that a defendant enter into the unlawful agreement at its inception. One can properly be convicted of conspiracy although he was not a participant at the time the original scheme was concocted. United States v. Jones, 480 F.2d 954 (5th Cir.), Cert. denied, 414 U.S. 1071, 94 S.Ct. 582, 38 L.Ed.2d 476 (1973). In deciding a Rule 8(b) motion, allegations of an indictment will be accepted as true in the absence of an argument of prosecutorial bad faith. United States v. Levine, 546 F.2d 658 (5th Cir. 1977). Further, in deciding this appeal we may look both at the face of the indictment and at evidence adduced at trial to determine whether joinder was proper. ¹

Appellant highlights the differences in time, place, participants, and victims in the allegations in the overt acts and in the substantive counts, differences which, according to him, show three nonjoinable conspiracies and three distinct sets of nonjoinable substantive offenses. We find, however, that the indictment charged a single conspiracy and evidence presented at trial viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), showed: Marler and Steele both contributed to the purchase of all three houses; the same realtor handled all three purchases; each residence was overvalued for insurance purposes in part because the insured claimed construction or renovation work that was never done; the three houses were never occupied by their new owners (Marler, Reed, and the Leaches), and were totally destroyed by fire following explosions; in each instance various written records were absent, either because claimed...