United States v. Harris

• Decision Date: 11 May 1972
• Docket Number: No. 71-1713. Summary Calendar.,71-1713. Summary Calendar.
• Citation: 458 F.2d 670
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Theodore Roosevelt HARRIS et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

458 F.2d 670 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Theodore Roosevelt HARRIS et al., Defendants-Appellants.

No. 71-1713. Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

February 24, 1972.

Rehearing Denied March 15, 1972.

Rehearing and Rehearing Denied May 11, 1972.

COPYRIGHT MATERIAL OMITTED

Robert D. Hart, Jr., Pensacola, Fla., court appointed for Scott.

Owen Ed Adams, Pensacola, Fla., court appointed for Barfield.

William G. Davis, Jr., Pensacola, Fla., court appointed for Chapman.

William H. Stafford, Jr., U. S. Atty., Pensacola, Fla., for plaintiff-appellee.

Emory O. Williams, Jr., Pensacola, Fla., court appointed for Chapman.

Henry R. Barksdale, Pensacola, Fla., for Harris.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

Rehearing and Rehearing En Banc Denied May 11, 1972.

GOLDBERG, Circuit Judge:

Appellants, Theodore R. Harris, Bobby G. Barfield, Don G. Chapman, and Richard L. Scott, appeal jury convictions of the federal crimes of conspiracy and burglary, alleging that the trial judge committed reversible error in denying their motions to sever the consolidated trial, in refusing to sequester the jury, in failing to compel the government to disclose prior to trial a statement by an alleged co-conspirator who had "turned state's evidence," in failing to require a preliminary hearing for the purpose of having a government witness identify the defendants prior to trial, and in refusing to grant appellants' motions for judgment of acquittal on the ground that the evidence was insufficient to support a verdict of guilty. In addition, appellant Harris asserts that the trial judge erred when he did not specifically instruct the jury regarding the credibility and weight to be given to alibi testimony submitted in behalf of Harris; and appellant Chapman appeals the trial judge's refusal to disqualify himself because of alleged prejudice against Chapman and because of the judge's admitted ownership of stock related to the burglarized bank. We find all allegations of error without merit, and we affirm the convictions.

Defendants may be joined in indictment and in trial if "they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses," F.R.Crim.Pro. 8(b) and 13, unless "it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants . . . for trial together," F.R.Crim.Pro. 14. All appellants in this case were alleged to have conspired to commit and to have committed precisely the same crime, allegations clearly within the ambit of 8(b). Once the conditions of Rule 8(b) are satisfied, it is then "within the sound discretion of the trial judge as to whether the defendants should be tried together or severally." Opper v. United States, 1954, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101. See also Peterson v. United States, 5 Cir. 1965, 344 F.2d 419; West v. United States, 5 Cir. 1962, 311 F.2d 69; Davis v. United States, 5 Cir. 1945, 148 F.2d 203, cert. denied, 1945, 325 U.S. 888, 65 S.Ct. 1570, 89 L.Ed. 2001. In weighing the competing factors under Rule 14 regarding severance, the trial court must evaluate the alleged factual and legal compactness of the consolidated trial and the government's interest in judicial economy with the potential prejudice to any of the defendants. See Flores v. United States, 5 Cir. 1967, 379 F.2d 905. If, as a practical matter, the natures of the offenses or of the evidence are of such a character or are so complicated that a jury could not reasonably be expected to separate the indictments or the defendants and to evaluate the evidence properly and individually against each separate defendant on each separate charge, then the trial judge should sever the trials. Cf. Jackson v. Denno, 1964, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. The trial judge in the instant case concluded that there would be no prejudice to the individual defendants resulting from consolidation, and we do not find he has abused his discretion by so concluding. This is not a case of one co-defendant confessing and implicating a fellow co-defendant by his confession, which might make it insurmountably difficult for a jury to render its decision regarding one co-defendant on the basis of his confession and yet to ignore that confession altogether when deliberating the fate of the second co-defendant. See Flores v. United States, supra; Schaeffer v. United States, 5 Cir. 1955, 221 F.2d 17; Barton v. United States, 5 Cir. 1959, 263 F.2d 894; Belvin v. United States, 5 Cir. 1960, 273 F.2d 583, cert. denied, 1963, 372 U.S. 922, 83 S.Ct. 737, 9 L.Ed.2d 726; Wright, Proposed Changes in Federal Civil, Criminal, and Appellate Procedure, 35 F.R.D. 317 (1964). Rather, one of the alleged conspirators in the burglary, John L. Johnson, turned state's evidence prior to trial and took the stand to testify against all of the defendants. Although Johnson was indicted with the appellants, Johnson himself was not on trial at the time as a co-defendant. In addition, he was subject to extensive cross-examination by all appellants. See Flores v. United States, supra; Barton v. United States, supra; Belvin v. United States, supra. And finally, the fact that the government would produce Johnson as a witness against his alleged co-conspirators was no surprise to the appellants. See Belvin v. United States, supra; Flores v. United States, supra. In attempting to demonstrate that they were prejudiced under Rule 14 by the trial judge's failure to sever, appellants jointly submit only that their physical proximity in court substantially prejudiced them with regard to the conspiracy count. However, a conspiracy such as that alleged here is appropriate for consolidation under the guidelines of the Federal Rules, F.R.Crim.Pro. 8(b), 13. To demonstrate prejudice under Rule 14 appellants must demonstrate something more than the simple fact that they sat together at a joint trial for conspiracy. Appellant Harris also asserts that the jury was unable to maintain any meaningful distinctions between the defendants during the consolidated trial. Again, we must disagree. The trial judge's instructions to consider each defendant and the evidence against him separately were clear and explicit, and we see nothing so insurmountably confusing in this set of facts and defendants that a jury would simply be incapable of following instructions and of making proper distinctions and findings regarding each individual defendant. See Delli Paoli v. United States, 1957, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278.

"To say that the jury might have been confused amounts to nothing more than an unfounded speculation that the jurors disregarded clear instructions of the court in arriving at their verdict. Our theory of trial relies upon the ability of a jury to follow instructions. There is nothing in this record to call for reversal because of any confusion or injustice arising from the joint trial."

Opper v. United States, 348 U.S. at 95, 75 S.Ct. at 165. Appellants Barfield, Chapman, and Scott also assert that the trial judge was in error when he permitted joinder of the substantive burglary charge and the conspiracy charge. But the alleged burglary and the alleged conspiracy were "of the same or similar character or were based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan," also within the discretionary perimeters of the Federal Rules, F.R. Crim.Pro. 8(a). Appellants were tried for jointly conspiring to burglarize and for jointly and severally committing the substantive burglary planned during the conspiracy; absent other showings of prejudice we find nothing inappropriate in consolidation under these circumstances. We conclude that sufficient prejudice to any of the defendants has not been established, and severance of the individual defendants was not required.

Appellants next contend that the trial court erred in refusing defendants' request to sequester the jury overnight, even though the trial judge did instruct the jurors that they were not to discuss the case or to listen to any media discussion of it. In so contending, appellants rely heavily on two Seventh Circuit cases, United States v. D'Antonio, 7 Cir. 1965, 342 F.2d 667, and United States v. Panczko, 7 Cir. 1965, 353 F.2d 676, cert. denied, 383 U.S. 935, 86 S.Ct. 1066, 15 L.Ed.2d 853. We note that D'Antonio and Panczko appear to impose more stringent restrictions on the discretion of a trial judge to decline to sequester the jury than does this court. See Tyler v. United States, 5 Cir. 1968, 397 F.2d 565, cert. denied, 394 U.S. 917, 89 S.Ct. 1187, 22 L.Ed.2d 450; Grant v. United States, 5 Cir. 1966, 368 F.2d 658; Estes v. United States, 5 Cir. 1964, 335 F.2d 609, cert. denied, 379 U.S. 964, 85 S.Ct. 656, 13 L.Ed.2d 559; accord, Cardarella v. United States, 8 Cir. 1967, 375 F.2d 222, cert. denied, 389 U.S. 882, 88 S.Ct. 129, 19 L.Ed.2d 176; Hines v. United States, 10 Cir. 1966, 365 F.2d 649; United States v. Breland, 2 Cir. 1967, 376 F.2d 721; see generally, Holt v. United States, 1910, 218 U.S. 245, 31 S. Ct. 2, 54 L.Ed. 1021. It also appears that in our previous cases there had been no prior objection by defendant to the separation of the jury after it had begun its deliberations, but we see no reason to adopt the Seventh Circuit rule that a defendant has the absolute right to demand that the jury be sequestered overnight. We note that in both D'Antonio and Panczko there were additional reasons for the court to conclude that the defendants had been prejudiced by the separation of the jury, quite independent of the separation standing alone.¹ We find no satisfactory rationale by which to hold that a refusal to sequester a jury is per se error when the defendant requests the sequester. The purpose of sequestering is, the cases agree, to...