United States v. Soles, 17913-17916.

• Citation: 401 F.2d 521
• Decision Date: 04 October 1968
• Docket Number: No. 17913-17916.,17913-17916.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Johnnie SOLES, Alfred R. Cooper, Jr., Thomas Jones, Jr., and James Devanna Nelson, Jr., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

401 F.2d 521 (1968)

UNITED STATES of America, Plaintiff-Appellee, v. Johnnie SOLES, Alfred R. Cooper, Jr., Thomas Jones, Jr., and James Devanna Nelson, Jr., Defendants-Appellants.

Nos. 17913-17916.

United States Court of Appeals Sixth Circuit.

October 4, 1968.

Joseph Lichtenbaum, court appointed, Cincinnati, Ohio, for appellant Soles.

Douglas M. Mansfield, Houston, Tex., for appellant Cooper, William F. Hopkins, Hopkins, Hopkins, Wilson & Morrissey, Cincinnati, Ohio, on brief.

Joseph Lichtenbaum, court appointed, Cincinnati, Ohio, for appellant Jones.

John J. Getgey, Jr., court appointed, Cincinnati, Ohio, for appellant Nelson.

E. Winther McCroom, First Asst. U. S. Atty., Cincinnati, Ohio, for appellee. Robert M. Draper, U. S. Atty., on brief.

Before EDWARDS, CELEBREZZE and McCREE, Circuit Judges.

PER CURIAM.

Appellants Soles, Cooper, and Jones were convicted under an indictment charging a conspiracy to manufacture, possess, and utter counterfeit Federal Reserve notes in violation of 18 U.S.C. § 371. Appellant Nelson, in addition to being found guilty of the conspiracy charge, was also convicted of the substantive offense of attempting to sell the counterfeit notes in violation of 18 U. S.C. § 472. Initially ten defendants were indicted and charged with participation in the conspiracy. However, prior to trial, four entered pleas of guilty, the indictment was dismissed as to one, and another could not be found.

The central figure in the case, and, after his plea of guilty the government's star witness, was Richard Rutter. He had been contacted by an acquaintance from Toledo, Ohio, concerning the possibility of obtaining a substantial quantity of counterfeit notes. In response to the request, Rutter first attempted to acquire the currency through an arrangement with Jones and another man, but this attempt aborted because of Rutter's lack of funds. Rutter then approached a man named Barkett and asked him to print the counterfeit notes and share in any proceeds from their sale. Barkett agreed to this scheme, but the notes he printed were unacceptable to Rutter's acquaintance from Toledo and the transaction was never consummated. Following this, Rutter and Barkett decided to destroy most of the currency, and apparently Barkett believed this is what was done. Rutter, however, lied to Barkett and in fact retained a large portion of the notes, in the hope that he could dispose of them elsewhere. It was at this point that Jones reentered the picture and the other three defendants appeared for the first time. They had no knowledge of the source of the notes or of Rutter's previous dealings. They did, however, subsequently aid Rutter in his efforts to distribute the counterfeit notes.

The government chose to characterize this series of events as one general conspiracy to manufacture, possess, and pass counterfeit notes, and charged all the defendants under one count of the indictment. A review of the record, however, convinces us that the "jury could not possibly have found, upon the evidence, that there was only one conspiracy." Kotteakos v. United States, 328 U.S. 750, 768, 66 S.Ct. 1239, 1249, 90 L.Ed. 1557 (1946). To the contrary, there were at least three separate conspiracies, and only Rutter and Jones were involved in a conspiracy to manufacture, possess and pass counterfeit notes.

Except as to Jones, this presents not only problems of variance between indictment and proof and failure of proof, but also a problem of proper joinder under Rule 8 of the Federal Rules of Criminal Procedure formerly § 557 of the Judicial Code, 18 U.S.C. § 557. In speaking of the relationship between the harmless error rule, Fed.R.Crim.P. 52(a) formerly § 269 of the Judicial Code, 28 U.S.C. § 391, and joinder, the Supreme...