Harold S. Cross v. United States of America, John L. Jackson v. United States

BASTIAN, Circuit Judge

(dissenting).

I would affirm the judgments of the District Court. The evidence as to appellants’ guilt under Count 1 of the indictment was overwhelming. The majority require a new trial, however, because they feel that the appellants were confounded in making their defenses by the joinder of the two counts, and thus were prejudiced within the meaning of Rule 14, Federal Rules of Criminal Procedure. I disagree.

Rule 14 provides:

“If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such 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.”

As a general rule, acquittal on one of several counts in an indictment cures any defect of misjoinder under Rule 14, Gor-nick v. United States, 320 F.2d 325 (10th Cir. 1963), thereby precluding any successful claim of prejudice on appeal. United States v. O’Brien, 319 F.2d 437 (7th Cir. 1963); United States v. Rabin, 316 F.2d 564, 568 (7th Cir. 1963).

Similarly, in Dunaway v. United States, 92 U.S.App.D.C. 299 , 205 F.2d 23 (1953), this court rejected a claim of prejudice resulting from consolidation of three indictments in a single trial. The jury there had acquitted the defendant on one charge of housebreaking and convicted him on two others. On appeal, we said [ 92 U.S.App.D.C. at 302 , 205 F.2d at 26 ]:

“Acquittal on one of several consolidated indictments disposes pro tanto of the claim of prejudice. There are cases which indicate it disposes of such claim in toto. Beaux Arts Dresses v. United States, 2 Cir., 1925, 9 F.2d 531 ; United States v. Perlstein, supra [3 Cir., 120 F.2d 276 ]; Culjak v. United States, 9 Cir., 1931, 53 F.2d 554 , 82 A.L.R. 480 ; Morris v. United States, 9 Cir., 1926, 12 F.2d 727 ; Latses v. United States, 10 Cir., 1930, 45 F.2d 949 . * * * ” 1

In Monroe v. United States, 98 U.S.App.D.C. 228 , 234 F.2d 49 , cert. denied, 352 U.S. 873 , 77 S.Ct. 94 , 1 L.Ed.2d 76 (1963), involving appeals from convictions in a trial of multiple defendants on a nineteen-count indictment, we said:.

“ * * * The jury, as we have seen, acquitted Prather entirely of bribery, Anderson was convicted of three of six charges of bribery, King was convicted of only one of eight charges of bribery, Taylor was convicted of one charge and acquitted of one, and Simkins was convicted of four and acquitted of one. Thus, the jury was selective. This at least to some degree indicates that the jury returned verdicts only upon the basis of evidence relevant to each count and each defendant. Finnegan v. United States, 8 Cir., 204 F.2d 105, 109-110 . The judge specifically warned the jury in this regard *

“Furthermore, the court charged in considerable detail as to the separate substantive counts. * * * Judging the situation after the trial, therefore, as we must do, knowing that all appellants except Monroe and Prather were acquitted of conspiracy, and considering the evidence supporting each separate substantive *993 count which resulted in a verdict of guilty, together with the court’s full, fair and careful charge, we may not speculate that the trial actually led to any conviction which would not have occurred except for the consolidated trial. Dunaway v. United States, supra. While the danger of which the Supreme Court warned in Blu-menthal v. United States, supra, 332 U.S. at 559, 68 S.Ct. at page [248] 257, 92 L.Ed. 154 , that evidence might be transferred to one to whom it does not apply, must be constantly in mind in permitting and in reviewing joint trials — a danger ‘likely to arise in any conspiracy trial and more likely to occur as the number of persons charged together increases’ —we think the conclusion reached in Blumenthal that prejudice did not occur should also be reached here.” 98 U.S.App.D.C. at 237 , 234 F.2d at 58 . [Emphasis supplied.]

In the instant case, the trial judge specifically charged the jury:

“Each of these two counts must be considered separately against each defendant on the sworn testimony before you in this case.”

He then accurately, fairly and in some detail summarized for the jury the evidence and contentions of the parties with regard to each defendant on each count of the indictment.

Moreover, a typewritten form was given to the jury on which to record its verdict. The form set out the name of each defendant, and required a separate notation by the jury as to its decision on each of the two counts relating to that defendant; hence the verdict form was a constant reminder to the jury during its deliberations that each count was to be considered separately as to each defendant.

In these several ways the jury was apprised of its responsibility to consider each count and defendant separately.

At the conclusion of his charge, the trial judge asked of counsel if there were “anything further,” to which counsel for Cross replied (out of the presence of the jury):

“Your Honor, I think you have covered every aspect of it.”

Counsel for Jackson agreed. 2

That the jury acquitted the defendants on one count while convicting on the other demonstrates that it did, in fact, consider the evidence as it related to each count separately.

I am of the opinion that the circumstances of this case correspond to those outlined in Monroe, supra, and that the same conclusion should obtain here. The verdict reached in this case, and the careful delineation by the court of the details of each of the two counts in the indictment precludes a holding that the defendants were prejudiced by the joining of the defendants and the counts in the indictment. 3

With regard to Jackson, it is said that a new trial is required because Jackson’s alibi might have been given greater credence if Cross’s “self-defeating testimony” as to count 1 had not been heard by the jury. However, the mere fact that self-defeating testimony has been given by one defendant, which is not evidence as against the other, is not a proper basis for a finding of prejudice requiring reversal. Cf. Dykes v. United States, 114 U.S.App.D.C. 189 , 313 F.2d 580 (1962); Carter v. United States, 108 U.S.App.D.C. 277 , 281 F.2d 640 (1960); United States v. Schaffer, 266 F.2d 435, 440-443 (2d Cir. 1959); Stewart v. United States, 94 U.S.App.D.C. 293, 294, n. 3 , 214 F.2d 879 , 880, n. 3 (1954); Robinson v. United *994 States, 98 U.S.App.D.C. 347 , 349, 210 F.2d 29, 31 (1954); Hall v. United States, 83 U.S.App.D.C. 166, 168 , 168 F.2d 161, 163 , cert. denied, 334 U.S. 853 , 68 S.Ct. 1509 , 92 L.Ed. 1775 (1948); Lucas v. United States, 70 App.D.C. 92, 93 , 104 F.2d 225, 226 (1939). See Schaffer v. United States, 362 U.S. 511 , 80 S.Ct. 945 , 4 L.Ed.2d 921 (1960).

I would affirm the convictions.

. Cf. Chambers v. United States, 112 U.S. App.D.C. 240, 301 F.2d 564 (1962); Peckham v. United States, 93 U.S.App.D.C. 136 , 210 F.2d 693 (1953).

. Counsel expressed the wish, however, that the jury be told that the fact that the priest who was robbed died moments after the robbery was not to be considered in determining the guilt or innocence of the defendants. The judge complied, and thereafter counsel for both parties agreed.

. Drew v. United States, 118 U.S.App. D.O. -, 331 IT.2d 85, specifically avoided passing on the narrow question decided by the majority here. See note 6 of that opinion.