United States v. Leonard, 24123.
| Decision Date | 25 May 1971 |
| Docket Number | No. 24123.,24123. |
| Citation | 445 F.2d 234,144 US App. DC 164 |
| Parties | UNITED STATES of America v. Bobby J. LEONARD, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. Alexander Boskoff, Washington, D. C. (appointed by this Court) for appellant.
Mr. John S. Ransom, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A Terry and John F. Evans, Asst. U. S. Attys., were on the brief, for appellee.
Before FAHY, Senior Circuit Judge and TAMM and LEVENTHAL, Circuit Judges.
The only claim of substantial prejudice warranting discussion is that pertaining to improper joinder of counts and failure to grant motion for severance. Appellant was found guilty of all fourteen counts of an indictment. He was charged with burglary and larceny from the home of James Cross — on October 11, 1968, (counts 1 and 2), and again on November 17, 1968, (counts 3 and 4). Counts 5 through 8 alleged forgery and uttering by the use of a Sears, Roebuck credit card stolen in the November 17 burglary. Counts 9 through 14 alleged forgery and uttering at a different Sears, Roebuck store. Appellant was sentenced to 10 to 30 years on the burglary charged in count 3 and to lesser terms on each of the other counts, all to run concurrently with each other and with a prior sentence then being served.
Rule 8(a) Fed.R.Crim.P., permits joinder of offenses that "are of the same or similar character or are based on * * * two or more acts or transactions connected together or constituting parts of a common scheme or plan." Rule 14 provides for severance, or other relief, if the defendant "is prejudiced by a joinder of offenses."
Plainly the joinder of the counts relating to the two burglaries was proper. They were offenses "of the same or similar character" within the Rule. They were both burglaries, both of the Cross house (where appellant was employed), and indeed as the proof later developed they were similar in their "inside job" characteristics. In each instance there was no evidence of forcible entry or ransacking; the house was not in disarray, though items were taken from various parts of the house; the facts impelled the conclusion that the burglary was perpetrated by someone who knew precisely where various items in the house were kept.1
The joinder of the forgery-and-uttering charges to the burglary charges cannot be justified on the ground that they were offenses of the "same or similar" character. And their joinder was not without significance, since the evidence of burglary, though strong as indicated by our recital of facts, was circumstantial, while appellant was caught redhanded in his attempt to use the credit cards.
The critical element of the case, which undercuts appellant's contentions, is the simple fact that his uttering of the credit cards stolen from the Crosses would have been admissible in evidence in a trial for burglary. In this situation the joinder of offenses promotes the kind of efficiency in administration of criminal justice that is the objective of Rule 8 without the problem of prejudice in the trial of an offense, due to improper inferences from the evidence of the second offense, that is the primary concern of Rule 14.
We adopt the reasoning of Judge Bazelon in Blunt v. United States, 131 U. S.App.D.C. 306, 404 F.2d 1283 (1968), cert. denied, 394 U.S. 909, 89 S.Ct 1021, 21 L.Ed.2d 221 (1969). The court held that in the case of a robbery and theft of a checkbook, which is then used to commit frauds, forgeries and utterings, the robbery is "connected together" with these later offenses within the meaning of Rule 8. It reasoned thus: The evidence of the fraud, forgeries and utterings would have been admissible at a separate robbery trial, both to show possession of the stolen goods and to show specific intent of the robber to convert the stolen property to his own use. The joinder of counts eliminated the...
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...401 F.2d at 974; Drew v. United States, supra note 51, 118 U.S.App.D.C. at 16, 331 F.2d at 90. See also United States v. Leonard, 144 U.S.App.D.C. 164, 166, 445 F.2d 234, 236 (1971). 55 Drew v. United States, supra note 51, 118 U.S.App.D.C. at 17, 331 F.2d at 91. See also Baker v. United St......
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...1283, 1288 (1968) (citation omitted), cert. denied, 394 U.S. 909, 89 S.Ct. 1021, 22 L.Ed.2d 221 (1969); United States v. Leonard, 144 U.S.App.D.C. 164, 166, 445 F.2d 234, 236 (1971) (citation omitted).13 In Blunt, supra, 131 U.S.App.D.C. at 308, 404 F.2d at 1285, where a checkbook was stole......
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