United States v. Gleeson

• Decision Date: 23 June 1969
• Docket Number: No. 167-68 to 169-68.,167-68 to 169-68.
• Citation: 411 F.2d 1091
• Parties: UNITED STATES of America, Appellee, v. Michael J. GLEESON, Appellant. UNITED STATES of America, Appellee, v. William A. GLEESON, Appellant. UNITED STATES of America, Appellee, v. Buck GARRETT, Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

411 F.2d 1091 (1969)

UNITED STATES of America, Appellee, v. Michael J. GLEESON, Appellant.

UNITED STATES of America, Appellee, v. William A. GLEESON, Appellant.

UNITED STATES of America, Appellee, v. Buck GARRETT, Appellant.

Nos. 167-68 to 169-68.

United States Court of Appeals Tenth Circuit.

May 29, 1969.

Rehearing Denied June 23, 1969.

Don Matlack, Wichita, Kan., for appellant Michael J. Gleeson.

J. Ashford Manka, Wichita, Kan., for appellant William A. Gleeson.

Marvin J. Martin, Wichita, Kan., for appellant Buck Garrett.

Guy L. Goodwin, Asst. U. S. Atty., (Benjamin E. Franklin, U. S. Atty., Wichita, Kan., with him on brief) for appellee.

Before BREITENSTEIN, SETH and HICKEY, Circuit Judges.

Rehearing Denied in No. 168-18 June 23, 1969.

HICKEY, Circuit Judge.

This is a direct appeal from a conviction by a jury verdict. The several appellants were convicted of passing counterfeit money in violation of 18 U.S.C. §§ 2, 371 and 472.

The issues as presented will be stated and discussed in seriatim hereafter.

Appellants Gleeson and appellant Garrett are charged in separate overt counts. Gleesons are charged in count 2 with violation of 18 U.S.C. §§ 2 and 472.

Appellant Garrett is charged in count 4 with violation of 18 U.S.C. § 472.

Count 5 of the information charges the several appellants, and one who is not party to this appeal, with conspiring to violate the sections charged in the overt counts all in violation of 18 U.S.C. § 371. Ten overt acts are additionally charged in this count.

The several appellants were tried jointly on the above detailed charges.

The facts adduced at trial disclose the notes herein involved were counterfeit and made by the same set of counterfeit plates. The denomination of each spurious note was $100.00.

The testimony adduced revealed that appellant Mike Gleeson, on one occasion, received the change for a spurious note passed and that his brother, William, was with him on that occasion. It was further disclosed that the Gleeson brothers went to Colorado where a co-conspirator, Knight, passed at least one spurious note in their presence. Knight plead guilty to the offense in the District of Colorado and admitted on the stand that the Gleesons had contacted him and provided the spurious note. These admissions were elicited by cross-examination after the trial court ruled that Knight was an adverse witness. The reluctance of Knight to admit the facts adduced prompted the government attorney to confront him with a copy of the information from the Colorado district to which he had plead guilty. The chain of events occurring from the time each spurious note was passed until it was presented to the Treasury Department agents was detailed in the evidence.

The testimony adduced relating to appellant Garrett identified him as having passed several spurious notes including the one alleged in the overt count and the ones alleged in the overt acts.

A former woman associate testified that Garrett obtained the spurious money from the Gleeson brothers. She and a male associate testified Garrett had exhibited and identified the notes in his possession as counterfeit. The male associate testified he passed two spurious notes, one cashed in Wichita, another in Sedalia, Missouri, which was purchased from Garrett. The business association between Garrett and one Strandberg, who was convicted with the several appellants herein but who is not a party to this appeal, is detailed in the evidence.

A Treasury agent identified the money as counterfeit and testified, as an expert, on the mode of detection.

Appellants Gleeson offered witness Lay who denied that a $100 note had been passed as alleged in the overt count in which they were charged. The witness also offered evidence affecting the credibility of the witness, Hopper, who had testified regarding the receipt of the bill and delivery of change to Mike Gleeson.

Appellant Garrett offered witnesses who testified regarding the credibility of his former woman and man associates. The convicted co-conspirator Strandberg testified that he had given Garrett some legal $100 notes on two occasions.

Upon this evidence the jury convicted the appellants.

Appellants were jointly tried and the trial court concluded that all motions, objections and exceptions interposed on behalf of individual defendants would be considered as if made severally for all the joint defendants. In this court the briefs and arguments are presented in like manner. We therefore discuss the issues with this understanding.

After the return of the verdict a motion for acquittal was argued together with a motion for a new trial in the alternative.

Fed.R.Crim.P. 29(c) authorizes the motion for acquittal. Fed.R.Crim.P. 33 covers motions for a new trial. It is common practice to join the alternative requests for judgment of acquittal or new trial in one motion, since the factual presentation may be the same as to each although the legal issues may be quite different.

Motions for new trial are not favored, and will be granted only with great caution.¹

The brief of William Gleeson presents the issues detailed below in an alternative motion. A detailed examination of the arguments before the trial judge after the conviction reveals the issues specifically raised. They are: insufficiency of the evidence to convict, newly discovered evidence, and a totality of error which would require a new trial "in the interest of justice."² A consideration of the sufficiency of the evidence limits us to consider the evidence in the light most favorable to the prosecution.³ A complete review of the transcript independent of the trial judge's analysis at the time he denied the motion, viewed in the light of the foregoing rule, convinces us the evidence was sufficient to convict all the accused.

The newly discovered evidence presented was a prior and pending information filed in the District of Colorado charging witness Knight with an offense similar to the charge he plead guilty to, admitted as exhibit 11. This evidence was discovered after the trial, and diligence on the part of the movant is unquestioned. However, the newly discovered evidence must be more than impeaching or cumulative, must be material to the issues involved, and must be such as would probably produce an acquittal.⁴ The trial court indicated the newly discovered evidence could only be impeaching and was not material to the issues and probably would not produce an acquittal. We agree with the trial judge and affirm his action. The totality of error requiring a new trial in the interest of justice is determined by our analysis of the alleged errors which follows hereafter.

Pretrial discovery motions seeking a bill of particulars, the names of government witnesses, the results of scientific tests, written statements of the defendants, and for any evidence favorable to the defendants, were not timely filed as required by Fed.R.Crim.P. 7(f) and 16 (f). The trial court nevertheless considered the motions, as it should have in the interest of fairness, under the circumstances. The circumstances are that the trial judge arraigned two of the accused and extended the time for filing the motions for 30 days which had expired before the motions were filed. However, another district judge in the District of Kansas arraigned the other two accused and upon request granted them up to the time of trial to file motions. Therefore, in fairness to all accused, the trial court properly considered the motions under the circumstances.

Motions for bills of particulars are granted or denied at the discretion of the court.⁵ The denial will not be disturbed by an appellate court unless there was an abuse of discretion which denied an accused information which would define more specifically the offense charged against him.⁶ We do not find an abuse of discretion on the part of the trial judge.

It is well settled in this circuit that in non-capital cases an accused is not entitled to be furnished a list of the names of government witnesses.⁷

The record does not reflect, and an independent in camera examination of the sealed reports fails to disclose, that the government withheld scientific tests or their transcribed results.

The court granted the accused the right to have written statements of the defendants. None were used in the trial. and we find no complaint from the accused that any were withheld.

An all encompassing motion for any evidence favorable to the defendants always gives the court concern. This motion filed on trial day, not specifically called up at that time, nor raised during the trial, appeared first after trial at the time the alternative motion was argued. The trial court properly disposed of it by a post trial in camera examination.⁸

Appellants contend that under Fed.R.Crim.P. 8(b) and 14 they were entitled to be separately charged and separately tried.

Rule 8(b) permits charging two or more defendants in the same information when it is alleged that they participated in the same act or transaction or in the same series of acts or transactions. Rule 14 provides for relief from such joinder if prejudicial.

Relief from a questioned joinder is solely within the discretion of the trial judge absent an abuse. This court has said:

"The appellants\' contention that it was error to deny their motion for separate trials is without merit. Severance is a matter of discretion and we see no abuse of discretion here. Even less will it be an abuse of discretion to deny severance at the trial to come at which there will be no evidence of inculpatory statements of one defendant perhaps involving another."⁹

It is evident that there were no defendants' inculpatory statements here involved. Therefore, the determination of the trial court is affirmed.

In the face of Fed.R.Crim.P. 24(b), appellants contend error was committed because 11 peremptory challenges were allowed. The rule itself allows 10 peremptory challenges to joint defendan...