U.S. v. Seidel

• Citation: 620 F.2d 1006
• Decision Date: 08 November 1979
• Docket Number: No. 77-1382,77-1382
• Parties: UNITED STATES of America, Appellee, v. Alan Jeffrey SEIDEL, Appellant. . Reheard
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1006

620 F.2d 1006

UNITED STATES of America, Appellee, v. Alan Jeffrey SEIDEL, Appellant.

No. 77-1382.

United States Court of Appeals, Fourth Circuit.

Reheard Nov. 8, 1979.

Decided Feb. 20, 1980.

Rehearing and Rehearing En Banc Denied March 24, 1980.

Ranson Davis, Howard L. Cardin, Baltimore, Md. (H. Russell Smouse, Baltimore, Md., on brief), for appellant.

Robert P. Trout, Asst. U. S. Atty., Baltimore, Md. (Jervis S. Finney, U. S. Atty. and Marsha A. Ostrer, Asst. U. S. Atty., Baltimore, Md., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, RUSSELL and SPROUSE, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

This appeal, heretofore ruled on by us in an opinion reported in 588 F.2d 71, is now before us upon a grant of a rehearing. A proper consideration of the issues on rehearing requires some restatement of the proceedings in the district court. As indicated in the earlier opinion, the indictment on which the defendants Seidel and Kaplan were tried and convicted charged essentially two broad offenses, broken down in several separate counts. One of such offenses charged the illegal manufacture, installation, and explosion of a pipe bomb. The pipe bomb, after manufacture, was installed in an automobile of one Dobb. When Dobb attempted to start his automobile, this pipe bomb exploded, severely injuring Dobb and largely destroying his vehicle. All events connected with this offense of manufacturing, installing, and exploding a pipe bomb, took place in June 1976. Both the defendant Kaplan and the defendant Seidel were charged with these offenses. The other offense, broken down into several separate counts, involved only Kaplan, ¹ and related to the manufacture and sale of an illegal pipe bomb in August 1976 to a government agent posing as a "hit man."

Seidel moved for severance for trial of the June and August offenses and of defendants. He based his motion on the claim that he was in no way implicated in the August offense and would be prejudiced by a joint trial of the two offenses. The district court denied the motion, stating that it made "sense to try the August incident at the same time, given that the August incident was a direct outgrowth of the June incident." The Court added that it "envision(ed) no problem in instructing the jury so as to avoid any confusion which might be prejudicial to Seidel. The jury will be cautioned that Seidel is not charged with and did not commit any offenses in August and the fact that offenses may have been committed in August can have no bearing on his guilt in the June events." The case accordingly proceeded to trial on the two offenses.

After submission of the case to the jury Kaplan and Seidel were convicted on the counts connected with the June incident and Kaplan alone was convicted on the counts arising out of the August incident. On appeal this panel affirmed Kaplan's conviction on all counts, but reversed Seidel's conviction. ²

The basis for the reversal of Seidel's conviction was a finding of improper joinder of defendants in violation of the provisions of Rule 8(b), Fed.R.Crim.P. After the filing of the panel opinion, the Government submitted a petition for rehearing in which it contended that, even if there had been erroneous joinder of defendants, the misjoinder was harmless within Rule 52(a), Fed.R.Crim.P. The basis for its argument to this effect was the contention that all the evidence admitted by the district court in support of the second offense charged, though involving different defendants, was plainly admissible in support of the charge made against both Seidel and Kaplan in connection with the June incident, and that, if this contention were accepted, Seidel was not prejudiced by a consolidation of the June and August offenses. In granting rehearing, the Court substantially limited the issues to whether error in misjoinder of defendants under Rule 8(b) was harmless under the facts of this case and thus not ground for reversal of Seidel's conviction. The parties were given leave to brief and to argue orally their contentions on this issue. After consideration of oral arguments and written briefs, we vacate so much of the earlier opinion of the Court as reversed the conviction of Seidel and ordered a new trial in his favor, and we now affirm his conviction. We do not disturb the conviction of Kaplan as affirmed in our earlier opinion.

We begin a discussion of the issue before us on rehearing by assuming again that the joinder of the two offenses, in only one of which the defendant Seidel was involved, was improper under Rule 8(b). The Government's basic argument, however, is that, assuming, though not admitting, improper joinder, such misjoinder does not mandate automatic reversal of the conviction of a defendant such as Seidel, even though he was joined at trial with another defendant under a separate charge, if it can be fairly said that he suffered no prejudice to his right to a fair trial by such joint trial. It asserts that the harmless error rule declared in Rule 52(a), Fed.R.Crim.P., arms this Court with the power to treat misjoinder under such circumstances as harmless, thereby avoiding an unnecessary reversal of the conviction. The exercise of such power would actually serve, the Government argues, the design and purpose of Rule 8(b), which the Supreme Court has recently declared to be " 'to promote economy and efficiency (in judicial administration) and to avoid a multiplicity of trials, where these objectives can be achieved without substantial prejudice to the right of the defendants to a fair trial,' " ³ or, as another Court has said, was intended to advance the " 'goal of maximum trial convenience consistent with minimum prejudice.' " ⁴ To require a per se automatic retrial in a situation where the joint trial, though in violation of the literal language of Rule 8(b), was not tainted by any prejudice to the complaining defendant would, the Government says, scarcely promote judicial efficiency, avoid multiplicity of trials, or contribute to the "goal of maximum trial convenience consistent with minimum prejudice," all of which, as we have seen, are intended to be achieved by the Rule. ⁵ And it cites a large body of authorities in support of this contention that, even assuming that there was misjoinder under Rule 8(b), reversal of the joint trial of the misjoined offenses is unnecessary within the purpose of Rule 8(b) if the complaining defendant was not prejudiced by the joint trial. ⁶ The cases reach this result by invoking the rule of harmless error as represented in Rule 52(a), Fed.R.Crim.P. ⁷

The principle thus relied upon by the Government has found application in those cases where the absence of prejudice arises out of the fact that evidence of the joined offense would have been admissible in any event in proof of the other offense. In those cases the misjoinder of defendants, if erroneous, has been found in the cited cases to be within the harmless error rule as stated by Rule 52(a). ⁸ A typical instance of this situation where the misjoinder was found not to impose any prejudice on the complaining defendant and accordingly was to be treated as harmless requiring no reversal of the joint trial is illustrated by Drew v. United States, (D.C. Cir. 1964) 118 U.S.App.D.C. 11, 16, 331 F.2d 85. In that case the Court, using language uniquely appropriate to this case, said that

if the facts surrounding the two or more crimes on trial show that there is a reasonable probability that the same person committed both crimes due to the concurrence of unusual or distinctive facts relating to the manner in which the crimes were committed, the evidence of one would be admissible in the trial of the other to prove identity. In such cases the prejudice that might result from the jury's hearing the evidence of the other crime in a joint trial would be no different from that possible in separate trials.9

A similar conclusion that reversal because of a violation of Rule 8(b) is not compelled if the complaining defendant was not prejudiced, because substantially the same facts would have been adduced if separate trials had been had, was expressed in United States v. Daniels, 141 U.S.App.D.C. at 227, 437 F.2d at 661:

We do not think Daniels could have been prejudiced by the trial alongside Wiseman, even if the joinder were improper. Fundamentally, there was no prejudice because, aside from the fact that the jury was instructed to consider only evidence introduced against each appellant separately, any trial of Daniels would have required the introduction of most of the evidence in regard to Wiseman that was offered by both the prosecution and by Daniels in his own defense. Appellant Daniels' own brief finds it difficult to discuss his case without referring to the facts about Wiseman. His brief states, "The allegations against appellant arise out of an incident in which Wiseman, but not appellant, was involved. Consequently it becomes necessary to set out herein the facts relating to Wiseman, so that the evidence pertaining to appellant may be viewed in its proper perspective." Both the prosecution and the defense would have found precisely the same difficulty in a separate trial of appellant Daniels.

Likewise in United States v. Weiss, 491 F.2d at 467, the Court, in sustaining on the same ground a conviction against a charge of misjoinder of offenses against multiple defendants, said:

While joinder of two or more offenses against the same defendant have (sic) been permitted pursuant to Rule 8(a) in the decisions cited by the government, this hardly supports joinder of different defendants upon separate charges under Rule 8(b), which is more restrictive. However, we need not decide this difficult question in the present case since, even assuming Mrs. Weiss was improperly joined, she has failed to show any prejudice to herself as a result of the joinder. If Count 19 had been tried separately, the government would have been...