U.S. v. McDaniel

• Decision Date: 07 July 1976
• Docket Number: 74-1864,Nos. 74-1863,s. 74-1863
• Parties: UNITED STATES of America v. Charles L. McDANIEL, a/k/a "Black Danny" (two cases).
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 408

538 F.2d 408

176 U.S.App.D.C. 60

UNITED STATES of America v. Charles L. McDANIEL, a/k/a "Black Danny" (two cases).

Nos. 74-1863, 74-1864.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 12, 1976.

Decided May 18, 1976.

Rehearing Denied July 7, 1976.

William J. Garber, Washington, D. C., with whom Kenneth D. Wood, was on the brief for appellant.

Henry F. Greene, Asst. U. S. Atty., and William C. Brown, Atty., Dept. of Justice, Washington, D. C., with whom Earl J. Silbert, U. S. Atty., Washington, D. C., was on the brief for appellee.

Before TAMM and ROBINSON, Circuit Judges and JUSTICE, ^* United States District Judge for the Eastern District of Texas.

Opinion for the Court filed by Circuit Judge TAMM.

TAMM, Circuit Judge:

I. INTRODUCTION

This case arose from a large scale investigation by the Internal Affairs Division ("IAD") of the Metropolitan Police Department into organized gambling and police corruption, during which several officers who had previously received bribes decided to cooperate with the IAD. In addition, on November 11, 1972, a United States district court judge approved a wire intercept order, allowing police to tap appellant Charles L. McDaniel's telephone, on the basis of a detailed affidavit reciting numerous interviews with police officers, informants, undercover police officers, and former officers now cooperating in the investigation (Tr. 5809, 7955-56). During the course of this wire interception, telephone calls were recorded which generally corroborated the allegations in the affidavit that appellant was the central figure in the gambling/bribery operation. The investigation and wiretap resulted in the indictment of 15 persons, including appellant and several police officers.

On April 17, 1973, appellant and 14 co-defendants were charged in a 30-count indictment, No. 74-1864, consisting of 5 conspiracy counts and 25 separate substantive counts. The first all-inclusive count charged all 15 defendants with having participated in a single conspiracy to promote an illegal lottery known as the "numbers game" through bribery of law enforcement officers in violation of 22 D.C.Code § 1501 (1938) (lottery) and 18 U.S.C. § 201(b) and (c) (1962) (bribery of officers). The next four counts charged lesser included conspiracies to promote a numbers operation through bribery of law enforcement officers involving groups of less than all defendants. Each of the overt acts charged in these lesser included conspiracies was also charged as an overt act in the first all-inclusive conspiracy.

The remaining 25 counts of the indictment charged various defendants with substantive bribery offenses in violation of 18 U.S.C. § 201(b) and (c). Each of these offenses was included as an overt act in the all-inclusive conspiracy count and in one or more of the lesser included conspiracy counts. Appellant was charged in 9 of the 30 counts 6 substantive counts, the first all-inclusive conspiracy count, and 2 of the lesser included conspiracy counts.

In addition, appellant was charged in a two-count indictment, No. 74-1863, with having offered bribes to Matthew Rettew ¹ on February 13, 1973, and March 1, 1973, during the course of the undercover investigation into police corruption. The district court consolidated the two indictments for trial and denied appellant's motions for severance. ²

The case proceeded to trial on October 23, 1973, and continued for almost four months, producing a transcript of some 12,000 pages. At the conclusion of the government's case-in-chief, the trial court determined that the government had failed to make a prima facie case against two of the 15 defendants and granted their motions for acquittal (Tr. 10706). At this point, the court concluded that, under the government's theory of the indictment, there could be no conviction of any defendant under the all-inclusive conspiracy count (Count I) unless all 14 defendants were convicted; consequently, the court dismissed Count I as to all defendants (Tr. 10708, 10725-27, 11019).

The four lesser included conspiracy counts and 25 substantive bribery counts were then submitted to the jury. Appellant was convicted of one conspiracy count, Count IV of the indictment, restricted to the conduct of appellant's gambling operation and alleging bribery of police officers, including Harold Crook and Delmo Pizzati, during the period from January 1, 1971, to the return of the indictment. In addition, appellant was convicted of the two substantive bribery counts involving Officer Rettew. Co-defendant Pizzati was convicted of the same conspiracy charge but was acquitted of two substantive charges. The remaining nine defendants were acquitted on all counts in which they were charged.

II. MERITS OF THE CASE

Appellant presents four issues for our consideration. We deal with the issues seriatim, but find them to some extent interrelated and, consequently, have overlapped our treatment of them to some degree.

A. Joinder of Defendants and Offenses

Appellant first contends that the trial court improperly joined defendants and offenses in this case and abused its discretion in denying appellant's motions for severance. We disagree.

Joinder of multiple defendants and offenses is governed by Fed.R.Crim.P. 8. Rule 8(b) permits joinder of defendants "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." In this case, the first conspiracy count charged all defendants, including appellant, with a single, all-inclusive conspiracy. The lesser included conspiracy counts charged smaller conspiracies which, according to the government's allegations, were all steps in the formation of the single overall conspiracy charged in Count I. The smaller counts were alternative charges to Count I, since the defendants could not have been convicted of participation in both the overall conspiracy and a lesser included conspiracy. ³ We find nothing in this case to take it outside the general rule that persons indicted together should be tried together; the decision whether to grant separate trials was thus within the discretion of the trial court and is reviewable only for clear abuse. United States v. Leonard, 161 U.S.App.D.C. 36, 494 F.2d 955 (1974); Brown v. United States, 126 U.S.App.D.C. 134, 375 F.2d 310, 315 (1966); Robinson v. United States, 93 U.S.App.D.C. 347, 210 F.2d 29 (1954); Lucas v. United States, 70 U.S.App.D.C. 92, 104 F.2d 225 (1939). We find no such clear abuse here. ⁴

i Joinder of multiple offenses, governed by Rule 8(a), is proper where they 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." Joinder of related conspiracies is proper where each count is part of the same series of transactions constituting an overall conspiracy, see United States v. Papadakis, 510 F.2d 287, 296 (2d Cir.), cert. denied, 421 U.S. 950, 95 S.Ct. 1682, 44 L.Ed.2d 104 (1975), especially since the phrase "same series of acts or transactions" has been interpreted broadly in the interest of efficient judicial administration. The same rationale applies with respect to joinder of the 25 substantive offenses, as each was also alleged as an overt act in furtherance of the overall conspiracy (and of one or more lesser included conspiracies). Monroe v. United States, 98 U.S.App.D.C. 228, 230, 234 F.2d 49, 57, cert. denied, 352 U.S. 873, 77 S.Ct. 94, 1 L.Ed.2d 76 (1956). Similarly, the two substantive bribery offenses were properly consolidated. Rule 13 permits consolidation of two indictments if the counts could properly be joined in one indictment under Rule 8(b). Because the evidence indicated that these payments also were made for the purpose of protecting appellant's numbers operation (Tr. 7844-47), they too arose from the same series of acts or transactions as the other substantive bribery offenses and the overall conspiracy count.

Having found that the defendants and offenses were properly joined initially under Rule 8, we conclude that the denial of appellant's motions to sever was within the discretion of the trial court under Rule 14. ⁵

B. Sufficiency of the Evidence

Appellant next contends that the evidence was insufficient to support his conspiracy conviction and that the hearsay statements of his co-conspirators were improperly admitted against him in the absence of substantial independent evidence of his participation in the conspiracy. Appellant's Br. at 43. We find no merit in this argument. Contrary to appellant's assertions, the evidence against him was overwhelming, and was not limited to the testimony of Harold Crook and the voiceprint evidence, discussed infra. Appellant had made numerous admissions of his operation of a numbers game to both Crook and Rettew (Tr. 1375) and had repeatedly asked them for police protection for his operation (Tr. 1290, 7845-47). These admissions were in turn corroborated by intercepted telephone conversations in which appellant discussed his operation with several other persons (Tr. 6468-69, 6509-15, 6532-36). In addition, Crook testified that appellant bribed him during 1971 in return for protection of his gambling operation (Tr. 1298-99, 1615-16) and that he arranged a meeting between appellant and Pizzati, who later confirmed that they had reached an "understanding" (Tr. 1619-20). Moreover, Rettew testified that appellant personally delivered monthly payments of $400 (Tr. 7844-50) to him, and this testimony was corroborated by tape recordings of the intercepted telephone calls made by Rettew to appellant in December of 1972 (Tr. 7942-56). The independent evidence of appellant's control position in the conspiracy was thus sufficient to satisfy the requirements set forth in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974), which...