United States v. O'BRIEN, 13970.

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: SCHNACKENBERG, CASTLE and KILEY, Circuit
• Citation: 319 F.2d 437
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert O'BRIEN, Defendant-Appellant.
• Docket Number: No. 13970.,13970.
• Decision Date: 23 July 1963

319 F.2d 437 (1963)

UNITED STATES of America, Plaintiff-Appellee,
v.
Robert O'BRIEN, Defendant-Appellant.

No. 13970.

United States Court of Appeals Seventh Circuit.

July 23, 1963.

319 F.2d 438

Richard E. Gorman, Chicago, Ill., for appellant.

James P. O'Brien, U. S. Atty., John Powers Crowley, Asst. U. S. Atty., Chicago, Ill., John Peter Lulinski, Paul David Keller, Asst. U. S. Attys., of counsel, for appellee.

Before SCHNACKENBERG, CASTLE and KILEY, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

Robert O'Brien, defendant, has appealed from a judgment under which he was convicted and sentenced, following a trial before the district court and a jury, on an indictment originally consisting of six counts, which charged violations of 18 U.S.C.A. §§ 371, 1010, and 1014, and related to the alleged making of false and fraudulent statements for the purpose of procuring loans through federal savings and loan associations, which were to be offered to and accepted by the Federal Housing Administration for insurance.

In count one, defendants O'Brien, John Begin, William Vonder Born and Richard Anderson were charged with a conspiracy. In counts two and three only O'Brien was charged. In count four O'Brien and Begin were charged, while in count five O'Brien, Vonder Born and Anderson were charged. In count six only Vonder Born was charged.

The trial proceeded against O'Brien, Anderson and Vonder Born, Begin not having been apprehended.

At the close of the government's case, O'Brien's motion for acquittal was granted as to count four, but was denied as to the other counts in which he was mentioned.¹

At the close of all the evidence, O'Brien's motion for judgment of acquittal as to the conspiracy count and as to count five was granted. Anderson's similar motion was granted as to the conspiracy count and was denied as to count five. Vonder Born's motion for acquittal as to count six was denied.

The jury found O'Brien guilty on counts two and three and Anderson guilty on count five. It acquitted Vonder Born on count six.

It was seasonably stipulated that objections by one defendant would stand for all unless specifically disavowed.

Defendants O'Brien and Vonder Born did not testify.

1. It is the contention of O'Brien that, the government having failed to prove the conspiracy count, "it is evident from the manner in which the indictment was drawn and the evidence was adduced at the trial that the prosecutor sought again by the device of the conspiracy charge to sweep together various defendants and charge them with a multiplicity of crimes for the simple purpose of trying to show by some association an alliance in crime." In his brief he cites Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790, where Mr. Justice Jackson said:

"* * * The naive assumption that prejudicial effects can be overcome

319 F.2d 439

by instructions to the jury, cf. Blumenthal v. United States, 332 U.S. 539, 559 68 S.Ct. 248, 92 L.Ed. 154, all practicing lawyers know to be unmitigated fiction. * * *"

O'Brien's counsel contends that this case is typical of the practice of prosecutors in returning an indictment charging various crimes and a conspiracy and trying to engulf the defendants by overwhelming prejudicial evidence in a situation where they cannot by any stretch of the imagination extricate themselves.

This court has recently, however, taken a different view of such a situation. In United States v. Rabin, 7 Cir., 316 F.2d 564, 568 (1963), we said:

"We are not persuaded by defendant\'s argument that his prosecution on multiple counts in some of which, including the conspiracy count, others were joined resulted in prejudice which deprived him of a fair trial and violated his right to due process. The joinders of offenses and defendants were proper (Rule 8, Federal Rules of Criminal Procedure). Thus, we are concerned only with whether in the trial of the cause actual prejudice to a substantial right of the defendant resulted from such joinders. Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921. The defendant was acquitted on Counts V, VI and IX. On the record before us there is nothing to indicate that the jury in reaching the verdicts it did improperly considered evidence material only to the guilt of others or to the proof of other offenses. The verdicts of acquittal support such conclusion. Unlike Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 and Dodson v. United States, 6 Cir., 215 F.2d 196, relied upon by defendant, there was no conviction here under a joint or conspiracy count upon which to predicate any contention the convictions were based on evidence of wrongdoing by others and a belief of the jury `that birds of a feather

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