U.S. v. Marionneaux

• Decision Date: 19 June 1975
• Docket Number: No. 74-3492,74-3492
• Citation: 514 F.2d 1244
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Don MARIONNEAUX, Hugh Marionneaux, Harold Sykes and Ben Trantham, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

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.

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 § 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.

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. Subsection (a) enumerates offenses which may be joined in one indictment or information:

(a) Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

Subsection (b) provides for the joinder of two or more defendants in the same indictment or information under certain circumstances:

(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.

The presence of multiple defendants in the instant case invokes the provisions of subsection (b) of Rule 8, F.R.Crim.P., United States v. Bova,supra; Cupo v. United States, 123 U.S.App.D.C. 324, 359 F.2d 990 (1966), cert. denied, 385 U.S. 1013, 87 S.Ct. 723, 17 L.Ed.2d 549 (1967); 8 Moore's Federal Practice § 8.06(1) (2d ed. 1975). Although Counts I and II of the indictment under scrutiny charge offenses of the "same or similar character," which might be joinable under subsection (a), the identity or similarity of the character of offenses is not a permissible basis for the joinder of defendants under subsection (b). To be joined as defendants in the same indictment under Rule 8(b), Sykes, Trantham, and the brothers Marionneaux must be alleged to have participated (1) in the same act or transaction or (2) in the same series of acts or transactions constituting an offense or offenses.

Counts I and II of the indictment charge two separate conspiracies to obstruct justice. The indictment, therefore, does not allege that defendants participated in the "same act or transaction." On appeal, the Government concedes that the conspiracies are separate, but argues that joinder was nevertheless proper because the two conspiracies were "in the same series of acts or transactions constituting an offense or offenses." Such is not the case.

A "series" of acts under Rule 8(b), F.R.Crim.P., is something more than "similar" acts. King v. United States, 355 F.2d 700, 703 (1st Cir. 1966). In the case at bar, there are only three links between the conspiracy charged in Count I and that alleged in Count II: (1) the presence of Edward G. Partin as a defendant; (2) the allegation that Jerry Millican, a Count I defendant, participated in one overt act of Count II; and (3) the fact that both conspiracies were, in part, schemes to prevent witnesses from testifying against Partin. Absent these factors, the conspiracies have different participants and completely different overt actions. The Government admits as much in its brief on appeal, when trying to demonstrate that the jury could keep the two conspiracies separate and consider each on its own evidence:

A review of the facts and record shows that the offenses were clearly distinguishable, each dealing with a particular witness and tracing completely different physical locations, handled by different co-defendants.

Where, as in the case sub judice, there is no substantial identity of facts or participants between the two offenses, there is no "series" of acts under Rule 8(b). Cf. Robinson v. United States, 93 U.S.App.D.C. 347, 210 F.2d 29 (1954). We hold, therefore, that joinder of defendants was impermissible under Rule 8(b), F.R.Crim.P., and that the district court committed reversible error in denying defendants' motion to sever.

We note that defendants' pretrial motion to sever Counts I and II of the indictment was premised on Rule 8(a). Because there has been some misapplication of subsection (a) to cases involving the joinder of multiple defendants, see generally 8 Moore's Federal Practice § 8.06(1) (2d...