Wangrow v. United States

• Citation: 399 F.2d 106
• Decision Date: 12 November 1968
• Docket Number: 18949.,No. 18946,18946
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Parties: Henry Kenneth WANGROW, Appellant, v. UNITED STATES of America (two cases). Daniel Edmund CZAJKOWSKI and Mark Edward Murphy, Appellants, v. UNITED STATES of America (two cases).

399 F.2d 106 (1968)

Henry Kenneth WANGROW, Appellant, v. UNITED STATES of America (two cases).

Daniel Edmund CZAJKOWSKI and Mark Edward Murphy, Appellants, v. UNITED STATES of America (two cases).

Nos. 18946, 18949.

United States Court of Appeals Eighth Circuit.

July 22, 1968.

Certiorari Denied November 12, 1968.

COPYRIGHT MATERIAL OMITTED

Gerald M. Singer, Minneapolis, Minn., for appellants.

J. Earl Cudd, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Patrick J. Foley, U. S. Atty., Minneapolis, Minn., on brief.

Before MATTHES, GIBSON and HEANEY, Circuit Judges.

Certiorari Denied November 12, 1968. See 89 S.Ct. 292.

HEANEY, Circuit Judge.

The appellants seek to set aside judgments of conviction entered in the United States District Court, District of Minnesota. We affirm.

The appellants were each charged by information with possession of stolen government property (18 U.S.C. § 641). In a single indictment, each appellant was charged with: Count I — forcibly breaking and entering a post office (18 U.S.C. § 2115); Count II — destruction of government property (18 U.S.C. § 1361); and Count V — conspiracy to break and enter a post office (18 U.S.C. § 371.) Counts III and IV charged transportation of a stolen vehicle in interstate commerce (18 U.S.C. § 2312) — Count III named Wangrow and Murphy and Count IV named Czajkowski.

Each appellant was found guilty as charged. Each received a ten-year sentence on the information charges and a concurrent ten-year sentence for destruction of government property. Consecutive to the sentence on the information charge, each received a five-year sentence for their respective Dyer Act violations. On each of the two remaining counts, the appellants received five-year sentences concurrent with their Dyer Act counts.

We will consider only the validity of the convictions for violation of §§ 641 and 2312 since sentences on the other convictions were concurrent with them. Barnes v. United States, 197 F. 2d 271 (8th Cir. 1952).

The appellants contend that the convictions we are to consider should be set aside as the trial court erred in: (1) denying the appellants' pretrial motion for relief from misjoinder and prejudicial joinder; (2) admitting evidence obtained in illegal searches; (3) admitting into evidence certain weapons; (4) refusing to grant a judgment of acquittal as a result of jury irregularities; (5) instructing the jury with respect to the rule regarding recently stolen property; (6) refusing to grant a judgment of acquittal to Murphy and Wangrow on the grounds that the evidence was not sufficient to sustain a conviction on Count III.

A brief statement of the facts leading to the informations and indictments will be helpful in understanding the objections raised by the appellants.

The Chicago police were informed in early October that Eugene Karzas, known to the police as a convicted felon and an expert safecracker, had recently burgled a post office and intended to do another in the near future. He was placed under surveillance. It disclosed that he was meeting with the appellants, also known to the police as convicted felons. The surveillance was then broadened to include them and developed that the four men were using fictitiously registered cars.

On October 6th, the police noted that Wangrow and Murphy were absent from their usual Chicago haunts. On October 7th, the officers observed Karzas and Czajkowski entering and leaving a private garage at 210 North LaPorte Street, in Chicago. They drove from the garage to Eau Claire, Wisconsin, where the police lost them. The officers continued to the Minneapolis-St. Paul area, where, after a brief search, they located two of the fictitiously registered cars at the Thunderbird Motel in Bloomington, a Twin City suburb.

The Chicago officers called local law enforcement officers and United States postal authorities for assistance. A surveillance was then established under the supervision of the local law enforcement officers.

Karzas and the appellants were seen leaving the motel at 3:00 p. m. on October 8th. They returned at 9:10 p. m. They were then observed transferring what appeared to be burglary tools and an acetylene tank from the car they had been driving to the parked car. The cars were the ones fictitiously registered and previously observed in Chicago.

The four were arrested in their motel room. Money and stamps were seized at the time of the arrest.

The police obtained a warrant to search the cars and seized burglary tools and guns in the search.

The Chicago police obtained a warrant to search the Chicago garage and evidence was seized relating to a prior automobile theft.

Karzas was murdered before trial. Wangrow was indicted for the murder before this case was tried but, subsequently, was acquitted.

1. THE TRIAL COURT DID NOT ERR IN DENYING THE MOTION FOR RELIEF FROM MISJOINDER AND PREJUDICIAL JOINDER.

a. Misjoinder.

Prior to trial, the appellants moved pursuant to Rule 14 of the Federal Rules of Criminal Procedure for relief from prejudicial joinder. The supporting affidavit alleged both misjoinder¹ and prejudicial joinder of the Dyer Act counts with the others.² The trial court determined that the offenses and the appellants were properly joined and that no prejudice was shown. The motion was denied subject to a motion at trial if prejudice or jury confusion developed.

We agree that joinder of the offenses was permissible. Rule 8(a) of the Federal Rules of Criminal Procedure provides that joinder of offenses is proper "if the offenses charged * * * are 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." Here, the Dyer Act counts were based on the same acts as the conspiracy count. The Dyer Act counts were based on the transportation of the two fictitiously registered automobiles from Chicago to Bloomington, Minnesota. Two of the "overt acts" listed in the conspiracy count were the transportation of the same two automobiles. As in United States v. Bryant, 364 F.2d 598, 603 (4th Cir. 1966), the conspiracy count formed the connecting link between the substantive counts.

Since Dyer Act offenses were properly joined to the conspiracy count and since all the appellants were named in the conspiracy count, the appellants were not misjoined because all of them were not named in each Dyer Act count. Rule 8(b) of the Federal Rules of Criminal Procedure provides that "all of the defendants need not be charged in each count."

b. Prejudicial Joinder.

We turn to the question of whether the joinder, although proper, was prejudicial. Rule 14 of the Federal Rules of Criminal Procedure provides that "if it appears that a defendant * * * is prejudiced by a joinder of offenses or of defendants or by joinder for trial together the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires." On appeal, the action of the trial court may be overturned only for an abuse of discretion. E.g., Haggard v. United States, 369 F.2d 968 (8th Cir. 1966), cert. denied, 386 U.S. 1022, 87 S. Ct. 1379, 18 L.Ed.2d 461 (1967); Dowling v. United States, 249 F.2d 746 (5th Cir. 1957). It is incumbent upon the moving party to demonstrate prejudice. Golliher v. United States, 362 F.2d 594 (8th Cir. 1966).

Here, the appellants sought to demonstrate, by a pretrial affidavit, that prejudice would occur if the Dyer Act counts were tried together on the grounds that the "evidence concerning the two auto thefts was in many respects different:" the alleged thefts occurred at different times; the automobiles were transported across state lines on different days (October 6 and October 7); and proof as to the transportation by Czajkowski was direct and as to Wangrow and Murphy, only circumstantial. The appellants contend that further prejudice occurred during trial when the court permitted evidence seized during the search of the LaPorte garage to be received in evidence against Czajkowski. (A mutilated license plate, a key cutting machine and articles of personal property subsequently were traced to a stolen automobile.) The trial court denied the appellants' motion to reject this evidence as prejudicial, but ruled that it was only admissible to prove Czajkowski's intent since the garage was rented to him.³ Appellants Murphy and Wangrow argue that since such evidence was inadmissible against them, they were prejudiced by the joinder.

We reject the appellants' claims of prejudice. We recently noted:

"* * * The prime consideration in determining whether or not to grant a severance is the possibility of prejudice to the defendant in conducting his defense. Weighing the danger of * * * undue cumulative inference is a matter for the trial judge within his sound discretion. His denial of severance is not grounds for reversal unless clear prejudice and abuse of discretion is shown. There has been no such showing here. It is not enough simply to show that such joinder makes it more difficult to defend. * * *"

Johnson v. United States, 356 F.2d 680, 682 (8th Cir.), cert. denied, 385 U.S. 857, 87 S.Ct. 105, 17 L.Ed.2d 84 (1966).

In Johnson, similar offenses were joined; while in this case, joinder is based on transactions constituting parts of a common scheme or plan and prejudice is less likely.

"Rule 8(a) also provides for the joinder of several charges against a defendant if they are `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.\' In same transaction joinder the possibility of prejudice from the use of evidence inadmissible in separate trials is unlikely, since under the other crimes rule, evidence relating to a single transaction is admissible in all trials concerning the transaction." (Footnote omitted.)

74 Yale L. J. 553, 561 (1964). Accord, Hanger v. United...