United States v. Franke, 4-71 CR. 27.

• Decision Date: 18 August 1971
• Docket Number: No. 4-71 CR. 27.,4-71 CR. 27.
• Citation: 331 F. Supp. 136
• Parties: UNITED STATES of America, Plaintiff, v. James K. FRANKE and Fredrick L. Glover, Defendants.
• Court: U.S. District Court — District of Minnesota

331 F. Supp. 136

UNITED STATES of America, Plaintiff, v. James K. FRANKE and Fredrick L. Glover, Defendants.

No. 4-71 CR. 27.

United States District Court, D. Minnesota, Fourth Division.

August 18, 1971.

Robert G. Renner, U. S. Atty. by Neal J. Shapiro, Asst. U. S. Atty., for plaintiff.

Katz, Taube, Lange & Frommelt, by Steven Z. Lange, Minneapolis, Minn., for defendant Franke.

Robins, Meshbesher, Singer & Spence by Ronald I. Meshbesher, Minneapolis, Minn., for defendant Glover.

NEVILLE, District Judge.

The defendants are charged in one joint indictment with five counts of possessing illegal firearms as previously convicted felons in violation of 18 U.S.C. App. § 1202 and in four counts with unlawfully dealing in firearms without a license so to do in violation of 18 U.S.C. § 922(a) (1).

Defendants have moved to dismiss as to Counts I, III, V and VII of the indictment, the so-called "possession after a felony conviction" counts. They cite that the Fourth, Eighth and Ninth Circuit Courts of Appeal have held 18 U.S.C. App. § 1202 to be valid particularly against an attack relating to proof of interstate commerce, whereas the Second Circuit in United States v. Bass, 434 F.2d 1296 (2d Cir. 1970), has held to the contrary. Counsel for both defendants acknowledge that the Eighth Circuit in the case of United States v. Synnes, 438 F.2d 764 (8th Cir. 1971), has disposed adversely to the defendants of all of the points raised by them on these motions. They suggest, however, that certiorari to the United States Supreme Court is now pending, to resolve the conflict among the Circuits. Consequently, they propose that if the motion to dismiss be denied, the court defer the trials until the United States Supreme Court has passed on the validity of the statute. The government opposes this motion and the court denies the request. It may well be six months to a year before any determination is made by the Supreme Court, assuming that it grants certiorari. Undoubtedly if a conviction flows in the case at bar defendants, now released on bail, will effect an appeal. This court sits in the Eighth Circuit and so far as the Eighth Circuit law is concerned such has been pronounced and is not to be ignored by this court and clearly prohibits a dismissal. There is of course a possibility of a reversal by the United States Supreme Court but this court does not believe that its calendar should be delayed and the cases held up for trial merely because of this possibility. Accordingly, the motion to dismiss or to delay is denied.

As to defendants' motion for separate trials for each defendant, the court feels compelled to grant such based on the holding of Chubet v. United States, 414 F.2d 1018 (8th Cir. 1969). There, defendant Kauffman was charged in six counts of a joint indictment with illegal possession and sale of amphetamine drugs in a one month period while defendant Chubet was charged in only two of the counts. For a unanimous Eighth Circuit panel Judge Heaney stated:

"Here, Kauffmann, the common thread in the indictment, is an insufficient basis for jointly trying the defendants. While Kauffmann and the defendant were common participants in Counts III and V, there was no allegation linking the defendant with Counts I, VII, IX and XI. The information neither alleged that the transactions were connected nor that they were common to a conspiracy."

Counsel for defendant Glover cited generally ABA, Minimum Standards Relating to Joinder and Severance, (App. Draft, Sept. 1968). Standards 1.2(b) and (c) seem apposite only since they set forth standards which are not met in this case:

"1.2 Joinder of defendants.

Two or more defendants may be joined in the same charge:

* * * * * *

(b) when each of the defendants is charged with conspiracy and some of the defendants are also charged with one or more offenses alleged to be in furtherance of the conspiracy; or

(c) when, even if conspiracy is not charged and all of the defendants are not charged in each count, it is alleged that the several offenses charged:

(i) were part of a common scheme or plan;

(ii) were so closely connected in respect to time, place and occasion that it would be difficult to separate proof of one charge from proof of the others."

In the instant case defendant Franke has been charged with four illegal sales (Counts II, IV, VI and IX) to a government agent over a five-month period. On only the last occasion was defendant Glover allegedly present and participating in the sale. As in Chubet, there is no allegation in the indictment of conspiracy, nor is there any allegation that the first three sales were in any way connected with the last. While each of the sales allegedly made by defendant Franke was made to the same government agent, that fact alone does not indicate the participation in the first three sales required by Rule 8(b) to join defendant Glover. Defendant Glover properly objects to the prejudice that the mass of evidence as to Franke would have on his alleged participation in only one instance as well as to the inconvenience of sitting through a long trial. To join the defendants for trial would, therefore, be misjoinder, and the defendants have a right of severance. Wright, Fed.Prac. and Proc., Vol. I, 327-29 and cases cited in notes 71 and 72. Such improper joinder would not be saved by the harmless error doctrine. See Haggard v. United States, 369 F.2d 968, 972-973 (8th Cir. 1966) and Wrig...