United States v. Guy, 19987

• Decision Date: 17 March 1972
• Docket Number: No. 19987,20002 and 20334.,19987
• Parties: UNITED STATES of America, Appellee, v. Earl GUY, Appellant. UNITED STATES of America, Appellee, v. Eugene "Mike" PETERS, Appellant. UNITED STATES of America, Appellee, v. Tommy RAYMOND, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

456 F.2d 1157 (1972)

UNITED STATES of America, Appellee, v. Earl GUY, Appellant.

UNITED STATES of America, Appellee, v. Eugene "Mike" PETERS, Appellant.

UNITED STATES of America, Appellee, v. Tommy RAYMOND, Appellant.

Nos. 19987, 20002 and 20334.

United States Court of Appeals, Eighth Circuit.

February 11, 1972.

Rehearing and Rehearing Denied March 17, 1972.

Ronald M. Sokol, The Legal Aid & Defender Society of Kansas City, Kansas City, Mo., for Earl Guy.

Thomas L. Duty, St. Joseph, Mo., for Eugene Peters.

Patrick G. Farnand, Minneapolis, Minn., for Tommy Raymond.

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

Before MATTHES, Chief Judge, VAN OOSTERHOUT, Circuit Judge, and EISELE, District Judge.^*

Rehearing and Rehearing En Banc Denied in No. 19987 March 17, 1972.

EISELE, District Judge.

Appellants Eugene "Mike" Peters, Earl Guy, and Tommy Raymond were three of the five defendants named in a six-count indictment returned in the Western District of Missouri. The other two defendants were Leonard Joe Baker and Layton C. Orr. Baker, Peters, and Raymond were charged in Counts One through Four of the indictment with passing counterfeit twenty-dollar Federal Reserve notes at specific times and to specific persons within the Western District of Missouri. Count Five charged the same three defendants with the willful possession of counterfeit Federal Reserve notes. Count Six charged all five defendants with conspiracy to pass the counterfeit notes. Thirteen overt acts in furtherance of the conspiracy were alleged, including the four acts of passing notes charged substantively in Counts One through Four.

Shortly before trial, the United States moved to sever the trial of the defendant Baker from that of the other four defendants. The request was granted. Mr. Baker testified at the trial of the other four, and was in fact the principal witness for the government. At the close of the evidence the charge against the defendant Orr was dismissed upon the government's motion. The jury then returned verdicts of not guilty as to both remaining defendants, Peters and Raymond, on Counts One through Four (the "passing" counts), guilty as to both on Count Five (the possession count), and guilty as to all three of the remaining defendants—Peters, Raymond and Guy—on the conspiracy count.¹ The three appeal from all guilty verdicts.

Although the testimony in the case is somewhat rambling, and there are indeed inconsistencies in the testimony of several of the government's witnesses and within the testimony of Baker, the essential facts, nevertheless, as testified to by the government's witnesses, with respect to the charges contained in the indictment are quite clear: Baker was shown to the basement of a cafe in Minneapolis operated by the defendant Raymond. All four of the other defendants were there at the time. A table in the basement was "littered" with money that Baker took to be counterfeit. He was told that the others planned to drive into Missouri that night and begin passing the counterfeit notes the next day. All of the defendants participated generally in the conversation concerning the plans to pass the notes, watched as the money was sprayed (apparently with some sort of substance designed to give the notes the appearance of having been well-used), and helped to stack the notes in bundles separated by cardboard dividers.

A few hours later, Baker, Raymond, and Peters left the cafe and drove into Missouri in a 1965 Cadillac. Guy apparently furnished the keys to the car. Before their departure Guy also produced a map, designating the eastern part of Missouri, and laid out the plans for the route the three were to follow. No specific town was designated. After departing, the three, apparently on their own, possibly at Baker's suggestion, decided to go to St. Joseph, Missouri, which is located in the western part of the state.

Baker and Peters attempted to pass individual notes at four retail stores in St. Joseph. At the fourth, an S. S. Kresge store, the counterfeit note Baker attempted to pass aroused the suspicions of a clerk and of a supervisor. Baker left the Kresge store, was followed by the supervisor, and returned to the car. The supervisor noted the type of automobile Baker entered and its license number. The rest of the counterfeit money was then quickly hidden in an alley, and the three returned to Minneapolis and reported to the others what had occurred in St. Joseph. After some discussion among the five defendants, it was decided that the same three should return to St. Joseph to try to retrieve the abandoned money. They did so, but the notes were gone by the time they returned. The bundle of counterfeit notes had been found by two young men and turned over to the St. Joseph, Missouri, police.

For reversal the appellants raise many points which they assert constitute prejudicial error. Many of the asserted errors were not called to the trial court's attention. The Court will treat the points, generally, in the order in which they arose below.

Appellants Guy and Raymond argue that the removal proceedings pursuant to which they were brought from Minnesota into Missouri failed to comply with the extradition requirements of Article IV, § 2 of the United States Constitution. This contention ignores the fact that these defendants were charged with a federal crime rather than a state crime, the only type to which the extradition requirements of the Constitution apply. United States ex rel. Kassin v. Mulligan, 295 U.S. 396, 399-400, 55 S.Ct. 781, 79 L.Ed. 1501 (1935). Raymond and Guy were properly removed pursuant to the Federal Rules of Criminal Procedure.

Appellants Peters and Raymond urge that a severance of their cases from those of the other defendants should have been granted. The severance question often arises in conspiracy cases, and the question sometimes presents appellate courts with difficult decisions. But the facts of this case are not those of the usual conspiracy trial. In the ordinary situation, one or more of several defendants to a conspiracy charge complain of prejudice to their separate cases when the prosecution is permitted to introduce the prior, out-of-court statement of another defendant. Such statements often tend to incriminate not only the particular defendant who made the statement, but also other defendants, against whom the statement would not be admissible. Prejudice to those other defendants may result even where appropriate cautionary instructions are given. Here, however, the only out-of-court statement in evidence was that of Baker, who was actually on the witness stand and whose case had in fact been severed. Baker's prior statement was introduced by Peters' counsel on cross-examination of Baker, in an attempt to discredit his testimony to the effect that Peters had left in the car with Baker on the trip to Missouri. The harm to Peters' case resulted from Baker's direct testimony, not from any out-of-court statement.

Raymond's brief does acknowledge that it was Baker's in-court testimony that was harmful to him. He takes that fact, however, and reaches the conclusion that his trial should have been severed from that of the other defendants, in addition to the severance from Baker's. The point is raised for the first time on appeal, and, at any rate, it is difficult to see how Baker's testimony would harm Raymond any less if he were being tried separately or how prejudice might result in either situation.

To the extent that Peters and Raymond are arguing that prejudice results from the simple fact of multiple defendants or joinder of offenses, their allegations are conclusory and completely unsubstantiated by the evidence. We find nothing in the record to indicate prejudice to any one of the three appellants as a result of their being tried jointly with the others or because all of these related offenses were tried together. Certainly the trial court did not abuse its discretion in refusing to sever the defendants or the charges. More must be shown under Rule 14 of the Federal Rules of Criminal Procedure than that severance might afford an increased chance of acquittal. Williams v. United States, 416 F.2d 1064, 1069-1070 (8th Cir.1969); Miller v. United States, 410 F.2d 1290, 1293-1295 (8th Cir.1969); and United States v. Long, 449 F.2d at 288 (8th Cir., 1971).

Another asserted ground for reversal is the allegedly erroneous refusal of the trial judge to recuse himself from the trial of the case after the filing of an affidavit of prejudice by the appellant Guy. We find no error in the trial judge's decision. The affidavit of prejudice presents only the most conclusory sort of assertions and provides no factual basis for the relief requested. It was quite properly denied by the trial judge immediately after it was filed a few weeks before the trial of the case. Appellant now seems to treat his brief as another opportunity for filing an affidavit of prejudice, listing several specific comments made by the judge during the course of the trial and in his summary of the evidence to the jury. Even treating this list of incidents as proffered evidence in support of the original affidavit of prejudice or in support of a contention that the trial judge should have disqualified himself at some later stage of the proceedings, the appellant Guy has utterly failed to demonstrate any prejudice on the part of the trial judge against him or any other defendant.

The appellant Raymond asserts error in the trial court's refusal to have the government produce, for questioning at the trial, a Secret Service agent named Shanahan. Mr. Shanahan was the agent who originally interviewed one of the witnesses called by the prosecution. The witness, Suzanne Bellin, testified that she was a clerk at a Bloomington, Minnesota, printing-supply store and that she had sold the defendant Guy some ink of the type used on offset printing presses several days...