U.S. v. Swift

• Decision Date: 16 January 1987
• Docket Number: 86-1083,Nos. 86-1079,s. 86-1079
• Parties: 22 Fed. R. Evid. Serv. 571 UNITED STATES of America, Plaintiff-Appellee, v. Joe Dean SWIFT (86-1079), James C. Hettmansperger (86-1083), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 320

809 F.2d 320

22 Fed. R. Evid. Serv. 571

UNITED STATES of America, Plaintiff-Appellee, v. Joe Dean SWIFT (86-1079), James C. Hettmansperger (86-1083),

Defendants-Appellants.

Nos. 86-1079, 86-1083.

United States Court of Appeals, Sixth Circuit.

Argued Nov. 6, 1986.

Decided Jan. 16, 1987.

Goerge S. Buth, Curtis R. Witte (argued), Grand Rapids, Mich., for Hettmansperger.

Anthony J. Valentine (argued), Bruggink & Valentine, Grand Rapids, Mich., for Swift.

John A. Smietanka, U.S. Atty., Grand Rapids, Mich., John C. Bruha, Donald A. Davis (argued), for plaintiff-appellee.

Before LIVELY, Chief Judge, and MARTIN and BOGGS, Circuit Judges.

BOYCE F. MARTIN, Jr., Circuit Judge.

Joe Swift and James Hettmansperger challenge their convictions arising from a drug conspiracy and tax evasion jury trial. Joe Swift was convicted of conspiring to distribute marihuana, of possession of marihuana with the intent to distribute and of interstate travel in aid of racketeering. James Hettmansperger was convicted of conspiring to distribute marihuana and of false declarations to a grand jury. Hettmansperger argues that the district court abused its discretion in joining him in the indictment against the other defendants, and both Hettmansperger and Swift argue that the district court abused its discretion in denying their motion for severance. Also, Swift asserts that the district court erred in allowing the jury to view bags containing marihuana and Hettmansperger argues that the district court erred by holding that his false statements were material to the grand jury. We find their arguments unpersuasive and affirm the district court.

In April of 1985 a grand jury returned a 17-count indictment against Swift, Hettmansperger and seven other defendants. The charges involved drug violations, racketeering, tax evasion and false declarations to a grand jury. Swift was indicted for conspiring to distribute marihuana, for possession of more than 1,000 pounds of marihuana with intent to distribute and of interstate travel in aid of racketeering. Hettmansperger was indicted for conspiring to distribute marihuana and for perjury before the grand jury.

Swift filed a pretrial motion to sever the tax related and perjury counts from the drug related ones. Hettmansperger filed a pretrial motion for severance of the two counts against him and for a separate trial for each. The district court ruled that the joinder under Rule 8(b) of the Federal Rules of Criminal Procedure was proper, but, in order to avoid confusion, severed the drug related counts from the tax related ones. During trial Swift joined in a motion for severance under Rule 14 on grounds of prejudice from financial evidence that was being introduced against other defendants. The district court denied this motion and the motion was not subsequently renewed.

During the course of trial, the government presented evidence contradicting Hettmansperger's grand jury testimony and establishing his involvement in the conspiracy. It also introduced evidence and testimony demonstrating Swift's participation in the drug conspiracy. In presenting its case, the government tried to introduce as evidence two bales of marihuana packaged in Purina Dog Chow bags, but the district court refused admission because of problems with authentication. As an alternative, the government sought to have a witness identify the method of packaging. The district court permitted the bags to be shown to the jury under those circumstances but specifically forbade the bags from being identified as containing marihuana. The packaged bales of marihuana were brought into the courtroom, the witness identified the packaging as being like that used by the drug conspiracy, and the bags were immediately removed.

Swift was found guilty of the three counts against him and sentenced to concurrent five year terms on each count. Hettmansperger was found guilty on both counts against him and sentenced to concurrent four year terms on each count. Hettmansperger argues on appeal that the district court abused its discretion in joining the defendants for trial. Swift and Hettmansperger both assert that the district court abused its discretion in refusing to sever them from the other defendants. Further, Swift claims that the district court committed reversible error in permitting the jury to view the Purina Dog Chow bags containing marihuana, and Hettmansperger asserts that he was improperly convicted for perjury under 18 U.S.C. Sec. 1623 because the district court erred in holding that his false statements to the grand jury satisfied that statute's materiality requirement.

We address first the improper joinder contention. The Federal Rules of Criminal Procedure permit joinder in an indictment of defendants "alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense of offenses." Fed.R.Crim.P. 8(b). As we have held, this rule "can, and should, be 'broadly construed in favor of initial joinder,' because of the protection Rule 14 affords against unnecessarily prejudicial joinder." United States v. Franks, 511 F.2d 25, 28 (6th Cir.1975) (quoting United States v. Isaacs, 493 F.2d 1124, 1158 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974)). In the decision of whether to join, "the predominant consideration is whether joinder would serve the goals of trial economy and convenience; the primary purpose of this kind of joinder is to insure that a given transaction need only be proved once." Franks, 511 F.2d at 29 (quoting Baker v. United States, 401 F.2d 958, 971 (D.C.Cir.1968)).

The counts joined for trial in this case satisfy this requirement because they are logically interrelated and involve overlapping proof. See United States v. Johnson, 763 F.2d 773, 776 (6th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 178, 88 L.Ed.2d 148 (1985). The drug conspiracy count involved all nine defendants. Swift's possession of the more than 1,000 pounds of marihuana was one of the overt acts of the conspiracy. Swift's racketeering count involved interstate travel for the purpose of obtaining marihuana. Hettmansperger's perjury count was related to his involvement in that conspiracy, and evidence establishing his involvement in that conspiracy also established the falsity of his grand jury testimony. The racketeering counts in which neither Swift nor Hettmansperger was indicted involved the investment of proceeds from the marihuana conspiracy. Thus, because all of the counts were related and involved many of the same elements of proof, and because joinder advanced judicial economy, the joinder was appropriate.

Second, we deal with Swift and Hettmansperger's arguments that the district court should have granted a motion for separate trials under Rule 14 of the Federal Rules of Criminal Procedure. Rule 14 provides: "If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information ... the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires." A Rule 14 motion is left to the court's discretion, and the denial of a severance "will not be disturbed on review unless the district court abused its discretion in denying the motion." United States v. Gallo, 763 F.2d 1504, 1524-25 (6th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 826, 88 L.Ed.2d 798 (1986) (citations omitted). To establish an abuse of discretion requires "a strong showing of...