U.S. v. Scott

• Decision Date: 02 June 1975
• Docket Number: Nos. 74--1580,74--1581,s. 74--1580
• Citation: 511 F.2d 15
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jack Raymond SCOTT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 15

511 F.2d 15

UNITED STATES of America, Plaintiff-Appellee, v. Jack Raymond SCOTT, Defendant-Appellant.

Nos. 74--1580, 74--1581.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 11, 1974.

Decided Feb. 19, 1975.

Certiorari Denied June 2, 1975.

See 95 S.Ct. 2403.

Raymond Rosenberg, Des Moines, Iowa, for defendant-appellant.

Alan H. Kirshen, Asst. U.S. Atty., Sioux City, Iowa, for plaintiff-appellee.

Before LAY and BRIGHT, Circuit Judges, and TALBOT SMITH, ^* Senior District Judge.

TALBOT SMITH, Senior District Judge.

Jack Raymond Scott was convicted of participating in a series of bank robberies in small Iowa towns. He argues to us on appeal, in essence, that his trial was unfair. We find no prejudicial error and affirm the judgment of conviction.

The facts are extensive, involving robberies of banks at Breda, Ionia, Randall, and Swaledale, Iowa. Concerning specific issues raised, the facts will be examined in detail, but in general a similar pattern of operation emerged as to all the victim banks. The robberies were directed against smalltown institutions; each robbery took place in the pre-dawn hours of a Monday, and involved similar methods of forcing entry into the banks (pry bars) and into the safes (acetylene torches and 'burning bars'). The banks robbed fall roughly into two groups, those at Breda and Ionia having taken place during the period from June to September, 1969, and those at Randall and Swaledale occurring in October and November, 1970.

The Randall and Swaledale robberies were the subject of the first indictment, containing six counts, brought against defendant Scott and others. ¹ For purposes of clarity this will hereafter be referred to as the Randall indictment.

With respect to this Randall indictment, the defendant moved for severance of defendants, and for a severance of the offenses and for a separate trial on Counts I, III, and V from Counts II, IV, and VI. ² Such relief was sought under Fed.R. Crim.P. 14, authorizing the court to order separate trials on counts, to grant a severance of defendants, or to provide whatever relief justice requires.

Thereafter, and prior to the court's ruling on the motion, a second indictment was returned (hereinafter the Conspiracy indictment). This indictment, in one count, charged a conspiracy among defendants Scott, Bachman and Weeks, together with another six named but unindicted persons 'and others to the Grand Jury unknown,' to commit various crimes of bank robbery over a period of time from June 11, 1969 (the Breda robbery was on June 30) to November 12, 1970 (the Swaledale robbery was on November 2, 1970). This indictment included as overt acts the Randall and Swaledale robberies, which were the subject of the Randall indictment, as well as the earlier robberies of the banks in Breda, Irwin, and Ionia, Iowa. ³

Pursuant to Fed.R.Crim.P. 13, and without objection, the Conspiracy indictment was consolidated for purposes of trial with the Randall indictment, and it was agreed on the first day of trial that defendant's motion for severance would apply as well to the Conspiracy indictment. ⁴ Additionally, at the close of the government's case the defendant stated that he 'would like to renew at this time the motions for severance of the defendants and the motion for the severance of the charges heretofore filed in this matter.' The motions were denied on the following day and, the defendants offering no evidence, the case went to the jury, resulting in the conviction of defendant Scott on all six counts of the Randall indictment and on the single count of the Conspiracy indictment. ⁵ He was sentenced to 15 years on counts I, III and V and 15 years on counts II, IV and VI of the Randall indictment, and to 5 years on the Conspiracy indictment, all sentences to run concurrently with each other. ⁶

Defendant's appeal raises no question as to his guilt or innocence. In fact, at the trial he made no effort to disprove the illegal acts encompassed within the various counts. What he complains of, rather, is the course of the trial. He asserts in particular that the conspiracy alleged in the Conspiracy indictment was not one overall conspiracy, as alleged, but two separate and distinct conspiracies joined together 'for the purpose of evasion or avoidance of the evidentiary rules.' Had the alleged two conspiracies been separately charged, it is argued, 'it would have raised both questions of misjoinder under Rule 8(a) and (b) and prejudicial joinder under Rule 14 which the trial court could have better determined from the beginning,' rather than after the proofs were in, at which time a trial court is 'reluctant' to sever.

We find no merit in the asserted errors in the severance issue. The claim for severance under Fed.R.Crim.P. 8 clearly fails because of the commonality of the proofs involved, both as to offenses and defendants. ⁷ Broad interpretation of Rule 8, having as its foundational precept the prompt and efficient administration of criminal trials, in no way 'detracts from the rights of individuals to avoid prejudicial joinder.' ⁸ Should it develop at any stage of the trial that prejudice appears from joinder, Fed.R.Crim.P. 14 authorizes the court to order separate trials of counts, grant a severance of defendants 'or provide whatever other relief justice (may) require(s).' ⁹ The ruling of the trial court in this respect we overturn only for an abuse of discretion. Miller v. United States, supra, note 8, at 1293, and cases there cited. Here, even assuming that the defendant's motion at the close of the government's case ¹⁰ raised the issue here presented and argued as to multiple conspiracies, a matter of substantial doubt, ¹¹ we find no abuse of discretion in the court's rulings, nor do we find plain error under Fed.R.Crim.P. 52(b).

The defendant argues to us that his contention 'is similar to the legal argument made' in Miller v. United States, supra note 8, at 1294, which he quotes as follows:

Appellants' basic position is that the evidence shows as a matter of law the existence of separate conspiracies. They assert that '(t)he record indicates that there were in fact two separate and distinct conspiracies proved. One regarding the Camdenton, Missouri Post Office and the other regarding the alleged breakins and entries of post offices thereafter.' From this premise they argue that the Camdenton count was divorced from the others and should have been severed. Interwoven in the argument presented is the failure to sever the conspiracy count from the substantive counts. We disagree.

The prosecution of a continuing criminal enterprise raises questions of the utmost complexity with respect to the identification of the conspiracies involved, whether single or multiple. The problem is the more compelling because of the interwining of Fed.R.Crim.P. 8, as to proper joinder, with Fed.R.Crim.P. 14, requiring a severance at times, and Fed.R.Crim.P. 52(a), dealing with substantial prejudice, particularly applicable to problems of alleged variance. The differentiation between the overall continuing conspiracy, with various parties entering and leaving the criminal association at various times, and separate conspiracies, with certain parties common to all, defies any easily applicable litmus. ¹² The 'common pictorial distinction' ¹³ between the 'spoke conspiracy' ¹⁴ and the 'chain conspiracy' ¹⁵ helpful in the simpler cases, tends to become blurred as the ends of the chains themselves may generate spokes, or the spokes themselves proliferate chains. Rather than pushing the pictorial distinction to extremes, the courts find it more useful, in arriving at a reasonable and just decision as to any particular conspiratorial issue, to consider a calculus: a) the possibility of subsequent prosecution for the same offense; ¹⁶ b) the defendant's possession of reasonably specific information as to the charges against him; ¹⁷ and c) the 'dangers of transference of guilt from one (defendant) to another across the line separating conspiracies.' ¹⁸

It is this latter consideration that disposes of the issue before us. Whether the facts present a single overall conspiracy, as the government claims, or two separate conspiracies, as defendant argues, is immaterial in this case and we do not reach decision thereon. The fact of the matter is that if, as defendant argues, there were in truth two conspiracies, defendant Scott was a participant in each. One conspiracy, defendant asserts, if any existed, was that involving the Breda and Ionia banks. Yet with respect to the Breda robbery, for example, there was ample evidence from which the jury could find Scott's participation. ¹⁹ An entirely separate conspiracy defendant argues, was that involving the Randall and Swaledale robberies. Yet here again defendant Scott was clearly one of the robbers in the Swaledale robbery, for example, according to the testimony of the unindicted co-conspirator McWilliams who described the operation in detail. ²⁰

The difficulty and the danger faced in the multiple conspiracy cases, where the defendant is part of one conspiracy but not of another, is the likelihood of prejudice affecting substantial rights arising from a 'prejudicial spillover effect' ²¹ from one conspiracy to another. However, if the defendant is a member of both conspiracies the danger of prejudice from this source is minimal, if not non-existent. We find no prejudice from this source on the facts before us. ²²

Defendant urges error in the receipt of evidence. The government called to the stand one Reginald Wright, a prisoner at the State Penitentiary in Fort Madison, Iowa. He testified that he had known the defendant in the early part of 1972 and that defendant had told him that he (Scott) 'was the best safe cutter in the country.' The statement was clearly an admission and so receivable. Bass v. United States, 326 F.2d 884 (8th Cir.), cert. denied, 377 U.S. 905, 84 S.Ct. 1164, 12 L.Ed.2d 176 (196...