United States v. Franklin

• Citation: 452 F.2d 926
• Decision Date: 07 December 1971
• Docket Number: No. 71-1006.,71-1006.
• Parties: UNITED STATES of America, Appellee, v. Percy FRANKLIN, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

452 F.2d 926 (1971)

UNITED STATES of America, Appellee, v. Percy FRANKLIN, Appellant.

No. 71-1006.

United States Court of Appeals, Eighth Circuit.

December 7, 1971.

Bruce C. Houdek, Public Defender D. Mo., Kansas City, Mo., for appellant.

Anthony P. Nugent Jr., Asst. U. S. Atty. Kansas City, Mo., Bert C. Hurn, U. S. Atty., for appellee.

Before GIBSON, BRIGHT, and ROSS, Circuit Judges.

BRIGHT, Circuit Judge.

Percy Franklin appeals from a jury conviction on three counts of causing the interstate transportation of forged checks in violation of 18 U.S.C. §§ 2 and 2314. Judge Becker sentenced Franklin to serve six months imprisonment on Count I, plus two years of probation on Counts II and III. Franklin brings this timely appeal asserting that the trial court committed plain error in failing to grant him a separate trial on Counts II and III, and in failing to instruct the jury to consider the evidence only as it related to the individual counts charged in the indictment. Additionally, he contends that the evidence was insufficient to sustain the convictions under Counts II and III. We reject these contentions and affirm.

Under Count I, the government established that on August 12, 1969, Franklin cashed a payroll check of the Sam Dasta Construction Company at a Kansas City, Missouri, retail establishment. This check, one of several which had been stolen from the Dasta Construction Company, was drawn to Franklin's order and bore the signature "Sam Dasta." Sam Dasta had been dead for twenty years.

The checks specified under Counts II and III were forged from stolen personal check blanks of one Mark C. Blumenstein. Count II charged that Franklin cashed a check payable to his order and bearing the signature "Mark C. Blumenstein" on December 28, 1968; Count III charged Franklin with cashing a similar Blumenstein check on January 27, 1969. Both checks were cashed in Kansas City, Missouri.

During the trial, the government also introduced testimony which showed that Franklin had attempted to cash another Dasta Construction Company payroll check at a Kansas City store on August 9, 1969, three days prior to the incident described in Count I. When the cashier of this store called for the manager to obtain approval to cash the check, Franklin grabbed the check, left the cigarettes which he had intended to purchase on the counter, and "flew out the door."

On this appeal, Franklin concedes that the damaging testimony of the cashier and manager provides sufficient evidence of wrongful intent to support the jury verdict on Count I, but he asserts that the prosecution failed to produce any similar evidence of fraudulent intent sufficient to support the convictions under Counts II and III. He stresses that the check cashing incidents specified in Counts II and III occurred approximately seven months prior to the check cashing incidents related to Count I. Franklin also argues that he sustained prejudice from the joinder of the three counts because the jury could consider the evidence introduced under Count I in passing upon his guilt under Counts II and III. Franklin asserts that, under those circumstances, the district court should have sua sponte granted him a separate trial on Counts II and III. Finally, he claims that the trial court compounded the error by not specifically instructing the jury that the evidence relating to the check cashing incidents of August 1969 should not influence the verdict under Counts II and III.

In considering these contentions, we note that the record shows that Franklin cashed four other third party checks made payable to him, which proved to be worthless. He cashed these checks at Kansas City stores in late January and early February of 1969, between the time he cashed the Dasta Construction Company check and the time he cashed the Blumenstein checks. We also observe that, when contacted by police officers, Franklin stated that he could not recall the name of the man who allegedly gave him the Blumenstein checks and that he could not give a specific address for the club at which he had allegedly performed remodeling work in order to earn the amounts shown on the Blumenstein checks. Franklin's explanation for his receipt of the Dasta Construction Company check was equally vague.

With this factual background we first turn to the joinder-severance issue. Under Fed.R.Crim.P. 8(a), "two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged * * * are of the same or similar character * * *." Joinder is ordinarily appropriate where, as here, the specific counts refer to offenses of a similar character. See United States v. Simon, 453 F.2d 111 (8th Cir. 1971); United States v. Skillman, 442 F.2d 542, 554-555 (8th Cir. 1971). Although approximately seven months elapsed between the offense charged in Count I and those charged in Counts II and III, this time interval alone does not render the joinder improper. See United States v. Adams, 434 F.2d 756 (2d Cir. 1970); United States v. Hatcher, 423 F.2d 1086 (5th Cir. 1970). Franklin's present contention that the trial court should have sua sponte granted a severance would require trial courts to grant severance whenever evidence of criminal intent might apply to one, but not all, of the counts under which a defendant is charged. We know of no such rule. We believe the burden...