U.S. v. Marionneaux, No. 74-3492

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore WISDOM, SIMPSON and RONEY; RONEY
Citation514 F.2d 1244
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Don MARIONNEAUX, Hugh Marionneaux, Harold Sykes and Ben Trantham, Defendants-Appellants.
Docket NumberNo. 74-3492
Decision Date19 June 1975

Page 1244

514 F.2d 1244
UNITED STATES of America, Plaintiff-Appellee,
v.
Don MARIONNEAUX, Hugh Marionneaux, Harold Sykes and Ben
Trantham, Defendants-Appellants.
No. 74-3492.
United States Court of Appeals,
Fifth Circuit.
June 19, 1975.

Page 1246

James A. McPherson, New Orleans, La., for defendants-appellants.

Donald E. Walter, U. S. Atty., Shreveport, La., Stephen A. Mayo, Asst. U. S. Atty., Baton Rouge, La., James D. Carriere, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before WISDOM, SIMPSON and RONEY, Circuit Judges.

RONEY, Circuit Judge:

Don Marionneaux, Hugh Marionneaux, Harold Sykes and Ben Trantham appeal their convictions under an indictment charging the brothers Marionneaux in Count I and Sykes and Trantham in Count II with separate conspiracies to obstruct justice in violation of 18 U.S.C.A.

Page 1247

§ 371. Defendants assert two meritorious arguments for reversal: first, that a severance should have been granted because the indictment charged separate crimes against separate defendants, improper under Rule 8, F.R.Crim.P; and second, that the district court erroneously instructed the jury, over defendants' objection, that once the existence of a conspiracy is shown, only "slight evidence" is required to connect a particular defendant with the conspiracy. Accordingly, we reverse.

On October 9, 1973, the Federal Grand Jury for the Middle District of Louisiana returned two counts of an indictment against eleven defendants for conspiracies to obstruct justice. Although each conspiracy had as its alleged objective interference with the criminal prosecution of Edward G. Partin, the manner of interference was different in each case and, except for Partin as a common defendant, the conspirators were all different in each count.

Count I charged that two of the four defendants here, Hugh Marionneaux and Don Marionneaux, together with Edward G. Partin, Jerry Thomas, Jeffrey Roy Brasseaux, Joseph Green and Jerry Millican conspired with each other and with unindicted co-conspirator Richard Baker and other unknown parties to violate 18 U.S.C.A. § 1503. Count I defined the objects of the conspiracy to be the obstruction of justice by supplying sustenance and transportation to Richard Baker in order (1) to prevent his appearance, under a subpoena, before the Federal Grand Jury in the Eastern District of Louisiana and (2) to insure his false testimony as a subpoenaed witness in a criminal case pending in the United States District Court for the Southern District of Texas in which Edward Partin was the defendant. Count I further charged defendants with committing one or more of eighteen overt acts to effect the objects of the conspiracy.

Count II of the indictment charged that the other two of the four defendants here, Harold Sykes and Ben Trantham, together with Edward G. Partin, Jack P. F. Gremillion, Jr. and Crockett Carleton conspired with each other and with unindicted co-conspirators, Claude W. Roberson, Mitchell Husser and other unknown parties, to violate 18 U.S.C.A. § 1503. Count II delineated the objects of that conspiracy to be the obstruction of justice by persuading Claude W. Roberson, a subpoenaed witness, not to testify in the Partin criminal case and by rendering sustenance and transportation to Roberson to avoid his appearance as a witness at the Partin trial. Count II further charged defendants with committing one or more of seven overt acts to effect the objects of the conspiracy.

After pretrial severance of the other defendants, a motion to sever Count I of the indictment from Count II was filed by the remaining defendants, Hugh Marionneaux, Don Marionneaux, Harold Sykes, Ben Trantham, Crockett Carleton and Edward Partin. Defendants asserted the conspiracies of Counts I and II to be separate schemes, not subject to joinder in a single indictment under Rule 8(a), F.R.Crim.P. Defendants alleged that Partin was the only defendant common to both counts and that, with or without Partin joined as a defendant, the overlapping evidence of each separate conspiracy would prejudicially influence the jury and subject the other defendants to the risk of conviction upon evidence wholly unrelated to the accusations against them. The district court denied defendants' motion to sever, but effectively severed Partin from the trial by granting a change of venue from the Eastern to the Western District of Louisiana to Sykes, Trantham, the brothers Marionneaux, and Crockett Carleton. Partin did not move for a change of venue. He was not tried with the others.

Following a five day trial, the jury found all but Crockett Carleton guilty. Defendants' motions for judgment of acquittal or for new trials were denied. Each was sentenced to imprisonment for three years.

Page 1248

Misjoinder

Rule 8, F.R.Crim.P., governs the joinder of offenses and the joinder of defendants in the same indictment. Improper joinder under Rule 8 is inherently prejudicial and the granting of a motion for severance, where there has been misjoinder, is mandatory and not discretionary with the district court. United States v. Bova, 493 F.2d 33 (5th Cir. 1974). Thus, misjoinder under Rule 8 is a matter of law, completely reviewable on appeal. Rule 8 is thus unlike Rule 14 where, although properly joined, defendants may obtain separate trials on a showing of prejudice. Rulings under Rule 14 are reviewable only for abuse of discretion. 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).

Rule 8, F.R.Crim.P., is divided into two subsections....

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81 practice notes
  • U.S. v. Partin, Nos. 75-3615
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 19, 1977
    ...and found Carleton not guilty. On appeal, we reversed the four convictions and remanded for a new trial. United States v. Marionneaux, 514 F.2d 1244 (5th Cir. On January 20, 1975 Gremillion changed his plea to guilty on Count II. Judge Scott, finding a factual basis existed for the plea, ac......
  • U.S. v. Kopituk, No. 80-5025
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • November 4, 1982
    ...v. Levine, 546 F.2d 658, 661 (5th Cir. 1977); United States v. Park, 531 F.2d 754, 760 n.4 (5th Cir. 1976); United States v. Marionneaux, 514 F.2d 1244, 1248 (5th Cir. 1975); United States v. Gentile, 495 F.2d 626, 628 n.2 (5th Cir. 1974); United States v. Bova, 493 F.2d 33, 35 (5th Cir. 19......
  • U.S. v. Butera, No. 81-5203
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 10, 1982
    ...by DeNoma. Where multiple defendants are involved, joinder is governed by Rule 8(b), rather than 8(a). United States v. Marionneaux, 514 F.2d 1244, 1248 (5th Cir. 1975), cert. denied sub. nom. Partin v. United States, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). Rule 8(b) Two or more ......
  • U.S. v. Bright, No. 78-5472
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 11, 1980
    ...Rule 8 is considered to be inherently prejudicial and thus is reviewable on appeal as a matter of law. United States v. Marionneaux, 514 F.2d 1244 (5th Cir. 1975), 97 S.Ct. 298, 54 L.Ed.2d 189. The parties have not directed us to any fifth circuit cases involving misjoinder in a RICO case. ......
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81 cases
  • U.S. v. Partin, Nos. 75-3615
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 19, 1977
    ...and found Carleton not guilty. On appeal, we reversed the four convictions and remanded for a new trial. United States v. Marionneaux, 514 F.2d 1244 (5th Cir. On January 20, 1975 Gremillion changed his plea to guilty on Count II. Judge Scott, finding a factual basis existed for the plea, ac......
  • U.S. v. Kopituk, No. 80-5025
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • November 4, 1982
    ...v. Levine, 546 F.2d 658, 661 (5th Cir. 1977); United States v. Park, 531 F.2d 754, 760 n.4 (5th Cir. 1976); United States v. Marionneaux, 514 F.2d 1244, 1248 (5th Cir. 1975); United States v. Gentile, 495 F.2d 626, 628 n.2 (5th Cir. 1974); United States v. Bova, 493 F.2d 33, 35 (5th Cir. 19......
  • U.S. v. Butera, No. 81-5203
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • June 10, 1982
    ...by DeNoma. Where multiple defendants are involved, joinder is governed by Rule 8(b), rather than 8(a). United States v. Marionneaux, 514 F.2d 1244, 1248 (5th Cir. 1975), cert. denied sub. nom. Partin v. United States, 434 U.S. 903, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977). Rule 8(b) Two or more ......
  • U.S. v. Bright, No. 78-5472
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 11, 1980
    ...Rule 8 is considered to be inherently prejudicial and thus is reviewable on appeal as a matter of law. United States v. Marionneaux, 514 F.2d 1244 (5th Cir. 1975), 97 S.Ct. 298, 54 L.Ed.2d 189. The parties have not directed us to any fifth circuit cases involving misjoinder in a RICO case. ......
  • Request a trial to view additional results

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