United States v. Bova, No. 73-1340.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: WISDOM, COLEMAN and SIMPSON, Circuit
• Citation: 493 F.2d 33
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael BOVA, Defendant-Appellant.
• Decision Date: 26 April 1974
• Docket Number: No. 73-1340.

493 F.2d 33 (1974)

UNITED STATES of America, Plaintiff-Appellee,
v.
Michael BOVA, Defendant-Appellant.

No. 73-1340.

United States Court of Appeals, Fifth Circuit.

April 26, 1974.

Alvin Goodman, Miami, Fla., for defendant-appellant.

Robert W. Rust, U. S. Atty., Carol M. Anderson, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

We review appellant's conviction on two counts of violation of federal narcotics laws. We determine that Bova was improperly joined in the indictment with a codefendant as to offenses unrelated to appellant, in violation of F.R. Crim.P. 8(b). We reverse his conviction and remand for a new trial.

I. The Facts

The appellant, Bova, and a codefendant, John Coccuzza, were charged in a four count indictment with unlawful possession and distribution of heroin, a Schedule I narcotic controlled substance, in violation of Title 21 U.S.C. Sec. 841(a)(1) and Title 18 U.S.C. Sec. 2. Bova and Coccuzza were charged jointly in Count I with possession of 8.3 grams of heroin on or about August 31, 1972, and in Count II with distribution of that heroin on the same date. Counts III and IV charged Coccuzza alone with possession and distribution of 25.7 grams of heroin on or about September 8, 1972.

The case against the appellant and his codefendant arose from the purchase by Agent Perez of the Bureau of Narcotics and Dangerous Drugs (BNDD) of 8.3 grams of heroin from them on August 31, 1972. Agent Perez had been contacted

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by confidential informants, and proceeded to their home in Hollywood, Florida. There, he met with the informants and awaited the arrival of Bova and Coccuzza. The two arrived, and Agent Perez and Coccuzza engaged in a conversation concerning the sale of heroin. Coccuzza indicated that he was interested in selling one-half ounce of heroin for $500. Agent Perez responded that he was interested at that time in a smaller quantity, perhaps $200 worth. Thereupon, Coccuzza, Bova, and one of the confidential informants left in the automobile in which Bova and Coccuzza had arrived. The three returned some five minutes later, and, with Agent Perez, retreated to one of the bedrooms in the house in which the informants lived. There, Coccuzza produced a plastic bag containing heroin, indicated that it contained one-quarter of an ounce, and offered it to Agent Perez for $300. Agent Perez accepted this offer and Coccuzza handed the heroin over to him

Perez testified that at this time Bova inquired whether Perez had any scales with him. Upon receiving a negative reply, Bova produced a small set of scales from the pocket of his jeans, took the bag of heroin, and weighed it for Perez. Agent Perez then paid Coccuzza the agreed price of $300. According to Perez, Coccuzza turned the money over to Bova as the group was leaving the bedroom where the transaction had taken place.¹

The sale of September 8, 1972, on which Counts III and IV of the indictment were based, apparently involved only Coccuzza. The only testimony concerning this sale was elicited from a government agent during the scope of the Rule 11, F.R.Crim.P. inquiry occasioned by Coccuzza's motion to withdraw his plea of not guilty and to enter a plea of guilty at the close of Agent Perez' testimony at trial.

II. Proceedings Below

The appellant and his codefendant Coccuzza were arraigned on November 16, 1972, both entering not guilty pleas. Trial was set for November 27, 1972, but was later continued to December 11, 1972, on motion of Bova's counsel filed November 20.² At the same time that he moved for a continuance, Bova's attorney also moved for severance of his trial from that of Coccuzza. As grounds for his motion, Bova urged, inter alia, that the indictment against him and his codefendant contained charges totally unrelated to Bova himself. In support of this contention, Bova's counsel submitted a brief memorandum stating that the joinder of the unrelated offenses charged against Coccuzza was in violation of Rule 8, F.R.Crim.P.³

The district court denied Bova's motion for severance by its order of November 22, 1972. Thereafter, on November 27, the case was transferred from the docket of the judge to whom the case had originally been assigned to that of another district judge. Simultaneously, the original judge modified his order of November 22 by an amended

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order which added that the denial of the motion to sever was without prejudice to the defendant's right to renew the motion during trial. The issue of severance was not, however, thereafter raised by Bova's counsel until the filing of his motion for new trial on December 19, 1972.⁴

Early in the trial at the close of the testimony of the first government witness, Agent Perez, as to the transactions of both August 31 and September 8, Coccuzza was allowed to withdraw his pleas of not guilty and plead guilty to all four counts of the indictment. The trial proceeded as to Bova alone, and he was found guilty by a jury on Counts I and II of the indictment, the only counts in which he was mentioned. After denial of the new trial motion, judgment and concurrent sentences of Bova to five years confinement on each count, this appeal timely followed.

III. The Issue: Joinder Under Rule 8(b), Federal Rules of Criminal Procedure

On this appeal, Bova urges that joinder of the codefendant Coccuzza in Counts III and IV of the indictment — counts alleging offenses committed by Coccuzza alone — was impermissible under Rule 8(b), F.R.Crim.P., and that failure of the trial judge to grant his motion for a severance of his...