U.S. v. Wirsing

• Decision Date: 10 October 1983
• Docket Number: No. 82-1304,82-1304
• Citation: 719 F.2d 859
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Craig C. WIRSING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 859

719 F.2d 859

UNITED STATES of America, Plaintiff-Appellee, v. Craig C. WIRSING, Defendant-Appellant.

No. 82-1304.

United States Court of Appeals, Sixth Circuit.

Argued March 29, 1983.

Decided Oct. 10, 1983.

David F. DuMouchel, argued, Detroit, Mich., for defendant-appellant.

Leonard R. Gilman, U.S. Atty., Elizabeth Wild, argued, Detroit, Mich., for plaintiff-appellee.

Before KEITH and MARTIN, Circuit Judges and PORTER ^*, District Judge.

KEITH, Circuit Judge.

Appellant Craig Wirsing appeals from a judgment entered against him after a jury trial in this criminal case. Wirsing was charged with one count of conspiracy to possess with intent to distribute marijuana ¹ and three counts of attempted income tax evasion ² for the years 1976, 1977, 1978. The jury convicted him on all counts. For the reasons set forth below, we reverse the convictions and remand for a new trial.

FACTS

The government's theory of illegal activity centered around Wirsing's alleged role as a drug dealer. The government's evidence indicated that Wirsing was involved in drug activities as early as 1972. During that time, he bought marijuana from a man named Roy Griffith. His purchases were not small. In fact, Wirsing's sister testified that she observed a mound of marijuana measuring five feet by four feet by one foot on the basement floor of their home. Patrick Bolerjack, one of Wirsing's associates, also testified that he watched the defendant's business grow. There appeared to be some dispute as to whether Wirsing was in business for himself or was part of an organization.

Wirsing appears to concede that he was initially part of a group that included Roy Griffith and Frank Reynolds. However, Douglas Skinner, to whom the defendant allegedly supplied marijuana for sale, testified that in late 1973, Wirsing told him that he was no longer dealing with that group. He also ordered Skinner to stay away from them.

Since Wirsing's defense was that he left the conspiracy in 1973 and that the applicable statute of limitations had run, ³ the government sought to introduce evidence that Wirsing had performed acts in furtherance of the conspiracy beyond that date. It introduced testimony that in late 1973 the defendant purchased a Norwegian fishing boat for use in transporting marijuana from Colombia to the United States. The boat was purchased in the defendant's name, but Griffith, Bolerjack and Reynolds contributed money to repair it. The boat, the Salo, sank on its maiden voyage.

Skinner ran trips from the West for Wirsing. These trips usually originated in Tuscon, Arizona. On one trip in 1974, he was arrested and the marijuana confiscated. He had no further dealings with any member of the group for the following year. When he did return, he allegedly had contact only with Wirsing.

Although the defendant stated that he was no longer working with Griffith and his group in late 1974 and early 1975, he was a supplier for Jackie D. Miller. Miller obtained most of his marijuana from Griffith. Terry Jelnik, a drug dealer, testified under a grant of immunity. He stated that he started buying his marijuana from Wirsing in 1976. He had been buying from Griffith the year before, but when he went to meet Griffith at a cabin in Holly, Michigan, Wirsing was there. Other evidence adduced at trial indicated that Wirsing owned the cabin. Jelnik testified that after the initial meeting, whenever he went to the cabin, he either dealt with Griffith, Wirsing, or both.

Bolerjack testified that by 1975, the group that had invested in the Salo had disbanded. Bolerjack left the group in 1977. At that time, Wirsing was allegedly still supplying marijuana to dealers and Skinner was still selling for him. Wirsing's sister testified that the business relationship between Wirsing and Griffith changed during the end of 1974 or early 1975 due to constant "fighting".

Along with the conspiracy count, the government alleged three counts of income tax evasion for the years 1976, 1977, and 1978. The charges of tax evasion were derived from Agent Bednaczyk's calculation of Wirsing's net worth for the year ending December 31, 1975, the last year of defendant's legitimate tax returns. The evidence at trial was lengthy and complicated. The government introduced 362 exhibits in an attempt to prove income tax evasion under a net worth theory. ⁴ The jury deliberated two days and returned a guilty verdict on all counts. Wirsing was eventually sentenced to a term of five years imprisonment on the conspiracy count and three three-year terms on the tax evasion counts to run concurrently with the conspiracy term. Wirsing is free pending the outcome of his appeal.

JOINDER UNDER RULE 8(A)

While the defendant raises several issues on appeal, our discussion of the joinder issue renders discussion of the other issues unnecessary. ⁵ We conclude that the district court abused its discretion by not granting the defendant's motion for a severance of the conspiracy and tax evasion charges.

Fed.R.Crim.P. 8(a) provides:

(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.

As the language makes clear, joinder under this subsection is permissive. To the extent that it is consistent with providing the defendant with a fair trial, the Rule is to be construed liberally to promote the goals of trial convenience and judicial efficiency. See United States v. Isaacs, 493 F.2d 1124, 1158 (7th Cir.1974), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974); Drew v. United States, 331 F.2d 85, 88 The government argues that joinder was permissible in this case because the conspiracy charges and tax evasion charges constituted "two or more acts or transactions connected together or constituting parts of a common plan or scheme." It contends that the income that was not reported on Wirsing's return for the years in question was derived from his illegal activity in the conspiracy to distribute drugs.

(D.C.Cir.1964). See also J. Moore, 8 Moore's Federal Practice p 8.05 (2d ed. 1976); C. Wright, Federal Practice and Procedure, 1 Criminal Sec. 141 (2d ed. 1982); Note, Joint and Single Trials Under Rules 8 and 14 of the Federal Rules of Criminal Procedure, 74 Yale L.J. 553 (1965).

We agree that joinder of these charges was proper under Rule 8(a). As the Ninth Circuit noted in a similar case:

The evidence on the conspiracy count and the tax counts overlapped. Evidence of Anderson's expenditures in 1976 and 1977 was relevant to Count I, because it created the inference that the money for the expenditures came from the narcotics conspiracy (citations omitted). The financial evidence on the conspiracy counts was relevant to the tax counts, because it showed the source of Anderson's unexplained wealth.

United States v. Anderson, 642 F.2d 281, 284 (9th Cir.1981). The court in United States v. Shelton, 669 F.2d 446 (7th Cir.1982), cert. denied, 456 U.S. 934, 102 S.Ct. 1989, 72 L.Ed.2d 454 (1982) also approved the joinder of counts involving a conspiracy to commit mail fraud and tax evasion, noting that the tax counts charged the defendants with "failure to pay income on the proceeds of the scheme to defraud." Id. at 460. See also United States v. Isaacs, 493 F.2d at 1159 (joinder under Rule 8 proper where the "underlying crime generated the income tax violations").

The defendant argues that joinder was impermissible because evidence of the tax evasion charges would have been inadmissible in a separate trial on the conspiracy charges. Where the evidence on the charges is not mutually admissible in separate trials, the defendant argues, joinder of those charges is not permitted. ⁶ We disagree.

Rule 8(a) does not require that all evidence relating to each charge be admissible in separate trials. Rather, "[w]hen the joined counts are logically related, and there is a large area of overlapping proof, joinder is appropriate." Anderson, 642 F.2d at 284. See also United States v. Roselli, 432 F.2d 879 (9th Cir.1970), cert. denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971) (joinder of defendants proper under Rule 8(b) where the only evidence not admissible against all defendants in a conspiracy trial is that relating to tax returns); United States v. Barrett, 505 F.2d 1091 (7th Cir.1974), cert. denied, 421 U.S. 964, 95 S.Ct. 1951, 44 L.Ed.2d 450 (1975) (joinder under Rule 8(a) permissible where mail fraud charges and tax evasion charges all were connected with the defendant's use of his public office for private gain).

We are satisfied that the government alleged and introduced proof sufficient to establish a nexus between the drug charges and the tax evasion charges. Compare United States v. Diaz-Munoz, 632 F.2d 1330, 1335-36 (5th Cir.1980) with United States v. Beasley, 519 F.2d 233, 238 (5th Cir.1975), vacated on other grounds, 425 U.S. 956, 96 S.Ct. 1736, 48 L.Ed.2d 201 (1976). Discussing Thus, the decision in Diaz-Munoz was based upon the government's failure to prove a nexus between the tax and non-tax counts and does not, as appellants argue, stand for the proposition that joinder of tax and non-tax offenses in a single indictment is per se improper. Indeed, there would be no legal or logical basis for such a rule and, in fact, there is ample authority supporting the position that tax counts can properly be joined with non-tax counts where it is shown that the tax offenses arose directly from the other offenses charged (citations omitted).

the distinction between the result in these two cases, the court in United States v. Kopituk, 690 F.2d 1289, 1313 (11th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 2090, 77 L.Ed.2d 300 (1983) stated:

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