Petition for Writ of Certiorari — Perkins v. United States

Supreme Court, U.S.

FILED

QN -250 MAY 7. ivgd

JOSEPH F. SPANIOL, JR.

CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

OCELIA PERKINS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

HATCHETT, DEWALT & HATCHETT

By: ELBERT L. HATCHETT

485 Orchard Lake Road

Pontiac, MI 48053

(313) 334-1587

Attorney for Petitioner

QUESTIONS PRESENTED

i

WHETHER TESTIMONY BY THE GOVERNMENT'S WITNESS

CAN BE ADMITTED AGAINST MRS. PERKINS PURSUANT

TO FRE 801 d(2)(E) WHERE NO EVIDENCE INDEPEN-

DENT OF THE STATEMENT TO BE EXCLUDED WAS DE-

VELOPED IMPLICATING MRS. PERKINS IN ANY CON-

SPIRACY.

Il.

WHETHER THE TRIAL COURT ERRED IN NOT DECLARING

A MISTRIAL WHERE THE CCURT VOUCHED FOR THE

HONESTY OF THE PROSECUTION IN THE PRESENCE

OF THE JURY.

Ill.

WHETHER THE DISTRICT COURT COMMITTED REVER-

SIBLE ERROR IN REFUSING TO GRANT DEFENDANT

PERKINS A SEVERANCE AND SEPARATE TRIAL.

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINION BELOW

JURISDICTION

STATEMENT OF THE CASE

REASONS FOR ALLOWANCE OF THE WRIT

CONCLUSION

ii

20

Sa, st-

TABLE OF AUTHORITIES

Page(s)

Supreme Court Cases

Schaeffer v. United States, 362 U.S. 51l

(1960) 19

Bourjaily v. U.S., 483 U.S. 171 (1987) 7. @

Circuit Court Cases

United States v. Hatcher, 680 F.2d 438

(6th Cir. 1982) 17, 18

United States v. Kaplan, 588 F.2d 71

(4th Cir. 1978) 17, 19

United States v. Martin, 567 F.2d 849

(9th Cir. 1977) 17

United States v. Nazarro, 472 F.2d 302

(2nd Cir. 1973) 14

United States v. Nettles, 570 F.2d 547

(5th Cir. 1978) 17

United States v. Robinson, 635 F.2d 981i

(2nd Cir. 1980) 13

United States v. Enright, 579 F.2d 980

(6th Cir. 1978) 9, 10

United States v. Mahar, 801 F.2d 1477

(6th Cir. 1986) 9, 10

United States v. Abramson, 568 F.2d 604

(8th Cir. 1978) 10

State Supreme Court Cases

People v. King, 384 Mich. 310 (1970) 14

Statutory Authority

18 U.S.C. Section 1341 l

iii

Fed.R.Crim.P. 8(b)

Fed.R.Crim.P. 14

Fed.R.Evid. 801(d)(2)(E)

Fed.R.Evid. 104

iv

16 - 19

16, 19

7

7

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1989

OCELIA PERKINS,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The Petitioner, OCELIA PERKINS, respect-

fully prays that a Writ of Certiorari issue to

review the judgment and opinion of the United

States Court of Appeals for the Sixth Circuit

entered in this proceeding on March 7, 1990.

OPINION BELOW

The opinion of the Court of Appeals is

appended hereto.

JURISDICTION

The judgment and opinion of the United

States Court of Appeals for the Sixth Circuit

was entered on March 7, 1990. This Petition

is being filed as required by rule 20.1 of

the Supreme Court Rules. This Court's juris-

diction is invoked under 28 U.S.C. §1254(1).

STATEMENT OF THE CASE

Petitioner, OCELIA PERKINS, was charged

with two counts of Mail Fraud, along with nine

other persons, in a twenty-three count Indict-

ment which was returned to January 6, 1988.

The Indictment charged Mail Fraud, in viola-

tion of 18 U.S.C. Section 1341, Counts 13 and

14 charges Mrs. Perkins, Anders Migdaleck,

Anita Sackett, and Stella Holmes Ware with

devising a scheme to defraud an insurance com-

pany by arranging an arson fire at Mrs.

Perkins’ residence at 613 Fildew, in Pontiac,

1

—

Michigan, in May, 1983.

During the trial, three key government

agents, Al Meredith, Sr., Al Meredith, Jr.,

and Adar Hassan, all admitted arsonists,

testified under grants of immunity from pro-

secution and agreements to reduce sentences

imposed for crimes committed before and dur-

ing the timeframe for which the government's

indictment is concerned. (Meredith, Sr.,

Vol. 193, 264-275; Meredith, Jr., Vols. 195,

197, 434-464, 487-493; Hassan, Vol. 201, 734-

740).

Adar Hassan testified that he started

the fire in Mrs. Perkins' home (Hassan, Vol.

199, 685). However, further testimony by

Hassan indicates conflicts with the sequence

of events prior and subsequent to the trip to

Pontiac on the day of the fire (Hassan, Vol.

199, 718-725).

Nowhere in the trial testimony is it in-

dicated that Mrs. Perkins was involved in any

conspiracy to defraud her insurer. The only

other testimony regarding the Pontiac fire

2

errata

conspiracy is that of Al Meredith, Jr. (the

alleged go-between), who also admitted during

testimony that he was receiving money from the

government (Meredith, Jr., Vol. 197, 487-488),

and was consequently a government informant.

The Motion for Mistrial

On the first day of trial, during the

government's direct examination of Albert

Meredith, Sr., after the government moved for

the admission of an Exhibit, the following dis-

cussion occurred between counsel and the Court

in the presence of the jury:

MS. PRICE: Your Honor, may we re-

serve the right at the conclusion of the

day to verify that the exhibits we have

admitted were used?

THE COURT: I am going to rely on

the United states Attorney to honest

[sic]. He always has been. He always

will be. (Vol. 190, 27-29).

After the morning recess, counsel moved for

amistrial for the reason that the Court had

3

——

vouched for the credibility of the government

in the presence of the jury. That Motion was

denied. (Price, Matters of Law, Vol. 189,

1346-1347).

Motions for Severance

and Separate Trial

On February 26, 1988, a Motion for Sever-

ance and Separate trial pursuant to Fed.R.

Crim.P. 8(b) and 14 was filed in which certain

defendants requested a severance and separate

trial from co-defendants, Joyce Scott, Michael

White,Donald J. McQueen,Pamela Hatter Williams,

Ronald Pitts, and Doris Lauderdale. (R. 68):

Motion of Defendant for Severance and Separate

Trial at p. 3). This Motion was joined in by

Mrs. Perkins. The Court denied the Motion.

(Court, March 25, 1988, p. 6). The Motion was

renewed at the conclusion of the trial. (Esper,

Vol. 192, 1150. The Court denied this Motion

as well. (Court, Vol. 192, 1150). In addi-

tion, during the course of trial, Al Meredith,

Jr. testified that co-defendant, Stella Holmes

Ware, told him that Ocelia Perkins "was ready

4

to have a fire". This testimony was allowed

into evidence over the objections of defense

counsel.

On July 15, 1988, Mrs. Perkins was con-

victed of two counts of Mail Fraud. As a re-

sult of the conviction, Mrs. Perkins was sen-

tenced to fifteen (15) months in prison on

each charge, with both sentences to be served

concurrently. (R. 127 Order of Sentencing).

Subsequent to affirming the judgment of the

District Court, the United States court of

Appeals for the Sixth Circuit stayed the in-

stant proceedings pending Petitioner's Writ

of Certiorari to the United States supreme

Court. Mrs. Perkins currently remains free

on Bond pending the outcome of this matter.

REASONS FOR ALLOWANCE OF THE WRIT

I.

THE DISTRICT COURT COMMITTED A REVERSIBLE ERROR

BY ADMITTING A STATEMENT AGAINST MRS. PERKINS'

INTEREST PURSUANT TO FRE 801(d)(2)(E) WHERE NO

EVIDENCE, INDEPENDENT OF THE STATEMENT SOUGHT

TO BE EXCLUDED, WAS DEVELOPED BY IMPLICATING

MRS. PERKINS IN ANY CONSPIRACY.

The Court's failure to exclude hearsay

statements made by Al Meredith, Jr. and Adar

Hassan constitute reversible error. In parti-

cular, the Court allowed Meredith, Jr. to tes-

tify as to a statement made by Stella Holmes

Ware to Meredith, Jr. indicating that she

(Perkins) told Ware she was ready to have a

fire. (Meredith, Jr., Vol. 195, 380, 381).

That testimony constitutes hearsay within hear-

say and should have been excluded from the

jury's consideration under FRE 802 which

states:

Hearsay is not admissible

except as provided by these rules

or by other rules prescribed by

the Supreme Court pursuant to sta-

tutory authority or by Act of

Congress.

Likewise, the testimony of Adar Hassan

regarding whether Mrs. Perkins wanted to have

6

—

ee

a fire and where she wanted a fire to be set

should have also been excluded as hearsay pur-

suant to FRE 802.

A.

Allowing the statements under

FRE 801(d)(2)(E) was in error

where no evidence showing

that Mrs. Perkins was a part

of any conspiracy developed.

Federal Rules of Evidence 801(d)(2)(E)

states in pertinent part:

A statement is not hearsay if -

the statement is offered

against a party and is (E) a

statement by a coconspirator

of a party during the course

and in furtherance of the con-

Spiracy.

In addition, Rule 104 of the Federal

Rules of Evidence regarding preliminary ques-

tions states in pertinent part:

Preliminary questions concerning

the qualifications of a person

to be a witness, the existence

of a privilege, or the admissi-

bility of evidence shall be de-

termined by the court subject

to the provisions of subdivision

(b). In making its determina-

tion, it is not bound by the

rules of evidence except those

with respect to privileges.

In Bourjaily v. U.S., 483 U.S. 171, 107

7

S.Ct. 2775, 94 Led 2d 144, the court addressed,

inter alia, whether the trial court was re-

stricted to evidence independent of the state-

ment sought to be admitted under FRE 801(d) (2)

(E). Bourjaily involved the question of whe-

ther a statement made by a co-defendant to a

government informant could be used against the

Defendant as a statement of a coconspirator.

The Court, per the opinion of Chief Justice

Rehnquist only indicated that the statement it-

self could be considered when determining whe-

ther there was evidence of a conspiracy in

which the Defendant participated and whether

the statement was made during the course of

and in furtherance of the conspiracy. 107 S.

Ct. at 2781; 97 Led 2d at 156.

In the case at bar, Appellant Perkins

Suggests that the hearsay testimony of

Meredith, Jr. concerning her involvement in

the alleged conspiracy was the only eviden-

tiary source connecting Mrs. Perkins to a

conspiracy. (Meredith, Jr., Vol. 195, 374-

384). In particular, Meredith Jr.'s testi-

8

mony that Stella Holmes Ware told him that

Mrs. Perkins told her that she was ready to

have a fire is a prime example of testimony

using its own bootstraps to gain admittance

(Meredith, Jr., Vol. 195, 380, 381). See

also (Colloquy, dated June 16, 1988, Vol.

189, 1362-1366).

Further, in United States v. Mahar, 801

F.2d 1477 (6th Cir. 1986), the Court in re-

viewing United States v. Enright, 579 F.2d

980 (6th Cir. 1978), indicated that the trial

court was obligated to determine by a prepon-

derance of the evidence that a conspiracy ex-

isted; that the defendant against whom the

hearsay is offered was a member of the con-

Spiracy; and that the statements were made in

the course of and in furtherance of the con-

Spiracy. 801 F.2d at 1493, See Note 28.

Nowhere during the course of trial did

the court made a determination of whether suf-

ficient testimony existed to connect Mrs.

Perkins with the conspiracy as charged.

There is also evidence that both Hassan and

9

Meredith, Jr. were agents of the government,

consequently removing their respective parti-

cipations from consideration to the conspir-

acy. See United States v. Abramson, 568 F.2d

604, 606, 607 (8th Cir. 1978). It is Peti-

tioner's position that although a court has

the option to allow into evidence testimony

pursuant to FRE 801(d)(2)(E), contingent upon

subsequent testimony indicating conspiracy and

involvement by the party against whom the

statement is offered. The trial court failed

to make the necessary finding as to the exist-

ence of any conspiracy involving Mrs. Perkins

at the time this particular statement was made

by co-defendant Ware to Albert Meredith, Jr.,

as required by United States v. Mahar, 801 F.

2d 1477 (6th Cir. 1986) and United States v.

Enright, 569 F.2d 980 (6th Cir. 1978).

The government, in its Brief, also sug-

gests that the statement of Albert Meredith,

Jr. regarding what Defendant Ware told her

was offered for some reason other than the

truth of its matter. However, the government

10

makes no alternative suggestion or indication

as to why the statement was otherwise offered

and what it may have been used to establish.

Accordingly, it is Defendant's, OCELIA PERKINS,

contention that the statement at issue by

Albert Meredith, Jr. directly implicating De-

fendant, OCELIA PERKINS, in the crimes alleged

was in fact offered by the government for the

truth of the matter asserted and without a

proper showing of conspiracy by the government

and Mrs. Perkins' involvement therein, the

statement is hearsay and should have been ex-

cluded from the hearing of the jury.

1]

Il.

WHETHER THE TRIAL COURT ERRED IN NOT DECLARING

A MISTRIAL WHERE THE COURT VOUCHED FOR THE

HONESTY OF THE PROSECUTION IN THE PRESENCE

OF THE JURY.

On the first day of trial, during the

government's direct examination of its first

witness, all counsel and the Court had a dis-

cussion regarding how the government was to

provide copies of exhibits for counsel. (Vol.

190, 27, 28). After a short exchange, the

Court decided that copies of all proposed exhi-

bits would be provided for all counsel ahead

of time, and any objections would be made at

the time the exhibit was offered. (Court, Vol.

190, 29). To a request by counsel that they be

allowed to reserve the right at the end of each

day of trial to verify that all exhibits were

actually used, the Court said, "I am going to

rely on the United States Attorney to be honest.

He always has been. He always will be". (Court,

Vol. 190, 29). Since this statement question-

ably manifests the Court's belief that the

government is honest, anc no countervailing

Statement is made manifesting the Court's

12

Daina

:

belief in the honesty of defense counsel, the

:

statement is partial to the government. In-

deed, a likely implication here is not only

' that the government is honest, but also that

its witnesses are. The question thus becomes

.

whether the statement so prejudiced the jury

in favor of the government that Mrs. Perkins’

Fifth Amendment right to a fair trial was vio-

lated.

In cases where questions about a trial

| judge's conduct during a trial are raised, an

evaluation must be made as to whether the cumu-

lative effect of that conduct “could reasonably

be viewed as influencing the jury in favor of

the government or against any one of the de-

fendants'. United States v. Robinson, 635 F.

2d 981, 984-985 (2nd Cir. 1980).

In this case, the conduct was not a

criticism or rebuke of defense counsel, but

rather a statement by the Judge that the

United States Attorney is honest and always

will be. To the extent that the jurors could

have inferred from this statement that govern-

13

a 6 as

ee ee

ment Witnesses are also honest, this single

statement does far more to impair the fair-

ness of the trial than a Judge's rebuke of

defense counsel. Indeed, it is the respon-

sibility of the jury to decide who is tell-

ing the truth. United States v. Nazarro,

742 F.2d 302 (2nd Cir. 1973).

This comment, made during the opening

minutes of trial, was made at a point during

the proceeding where its potential to influ-

ence the jury in favor of the government was

greater than at any other time during the

trial. Not only did it occur during the open-

ing minutes of trial, but while a government

witness was testifying. A Judge's remarks to

the jury carries great weight: ‘While the

weight of a trial judge's word may not equal

the ton ascribed to the word of the President

of the United States, he should remember how

heavily it weighs with the jury". People v.

King, 384 Mich. 310, 315 (1970). The Court's

statement, in which it manifested its belief

in the honesty of the government so prejudiced

14

the jury in favor of the government that Mrs.

Perkins’ right to a fair trial was violated.

The Court erred in not granting Defendant's

Motion for a mistrial.

15

ies

Ill.

| THE DISTRICT COURT COMMITTED REVERSIBLE ERROR

IN REFUSING TO GRANT DEFENDANT PERKINS A SEVER-

ANCE AND SEPARATE TRIAL FROM JOYCE SCOTT,

MICHAEL WHITE, DONALD McQUEEN, RONALD PITTS,

PAMELA WILLIAMS, AND DORIS LAUDERDALE.

The Court's denial of Mrs. Perkins' Mo-

tions for Severance and Separate Trial was

— — a.

error. Mrs. Perkins suffered substantial pre-

a

judice because of her joint trial with the

| other co-defendants and the Court abused its

—— by not granting Mrs. Perkins’

} Motion to Sever pursuant to Fed.R.Crim.P. 14.

j

| A.

| JOINDER WAS IMPROPER UNDER FED.R.CRIM.P. 8(b)

| BECAUSE MRS. PERKINS DID NOT PARTICIPATE IN

|THE SAME SERIES OF ACTS OR TRANSACTIONS AS CO-

|DEFENDANTS SCOTT, WHITE, McQUEEN, PITTS,

|WILLIAMS, AND LAUDERDALE.

Fed.R.Crim.P. 8(b) states in part:

Two or more defendants may be

charged in the same indictment

of information if they are al-

leged to have participated in

the same act or transaction or

in the same series of acts or

transactions constituting an

offense or offenses.

The express language of the rule requires

that for joinder to be proper, defendants must

16

have participated in the same series of acts

or transactions. In the case of United States

'v. Hatcher, 680 F.2d 438 (6th Cir. 1982), the

court discussed what constituted a "series of

}acts or transactions" within the meaning of

'Fed.R.Crim.P. 8(b).

The Court noted first that the presence

; . :

-of a common defendant in each count of an in-

3

i

\dictment does not make joinder proper. Id. at

3

i (citing United States v. Kaplan, 588 F.2d

71, 74 (4th Cir. 1978); United States v. Martin,

ad niece's ed PET Rin:

eter VON

1567 F.2d 849, 853 (9th Cir. 1977); United States

v. Nettles, 570 F.2d 547, 551 (5th Cir. 1978).)

are

‘The Court's inquiry, however, focused on what

‘connection, if any, existed between the defen-

‘

‘dants and any transaction related to cocaine

‘charges. The Court found no connection in the

indictment, nor in the evidence adduced at

trial. United States v. Hatcher, 680 F.2d at

442,

If the reasoning of the Hatcher Court is

applied to this case, the focus of the inquiry

‘should be the connection, if any, between Mrs.

17

Perkins and the charges against Joyce Scott,

Michael White, Donald McQueen, Pamela Williams,

Ronald Pitts, and Doris Lauderdale. As the

Hatcher Court determined, the similarity of

the charges (there, both drug charges) is not

dispositive of whether Rule 8(b) joinder is

proper. Id. Thus, the fact that all the

charges in this case involved schemes to de-

|} fraud insurance companies through the inten-

tional burnings of homes is not a factor in

determining what constitutes a series of acts

Or transactions. Just as there was no connec-

}tion in the Hatcher case between defendants,

there was no relationship in this case between

‘Mrs. Perkins and the schemes to defraud involv-

ing Joyce scott, Michael White, Donald McQueen,

Pamelet Williams, Ronald Pitts, and Doris

Lauderdale. Moreover, Rule 8(b) joinder was

not harmless in this instance since the evi-

dence as to Defendants Scott, White, McQueen,

Williams, and Lauderdale's acts would not have

been admissible against Mrs. Perkins had she

been tried separately.

18

ia cho eit es Nm fot aks

6 RAE APNE.

B.

THE TRIAL COURT ABUSED ITS DISCRETION IN DE-

NYING DEFENDANT PERKINS' RULE 14 MOTION TO

SEVER HER TRIAL FROM THE TRIAL OF DEFENDANTS

SCOTT, WHITE, McQUEEN, WILLIAMS AND

LAUDERDALE.

Fed.R.Crim.P. 14 permits severance if

either party will be prejudiced by a joinder

of offenses or defendants. Questions of pre-

judice are properly raised under Fed.R.Crim.P.

14 only if joinder of multiple defendants is

proper under Fed.R.Crim.P. 8(b). United States

v. Kaplan, 588 F.2d at 74: A trial court has a

continuing duty, throughout the trial to grant

a severance when prejudice becomes apparent.

Schaffer v. United States, 362 U.S. 51ll, 514

(1960).

Assuming that joinder was proper, sever-

ance should have been granted under the autho-

rity of Fed.R.Crim.P. 14 because of the sub-

stantial prejudice to Mrs. Perkins by the

spillover of evidence from the other schemes

and defendants. Although each scheme was

separate in this case, certain aspects of each

scheme were similar. That similarity between

19

)

:

‘

;

+

the schemes, coupled with the large number of

defendants, witnesses, and the large amount of

evidence introduced by the government increased

the likelihood that a defendant would be con-

victed upon evidence unrelated to him cr her.

The Court's refusal to grant Mrs. Perkins’

Motion for a Severance and Separate Trial was

reversible error and, therefore, requires the

reversal of Mrs. Perkins’ conviction.

CONCLUSION

Because the opinion of the Sixth Circuit

conflicts with the precedent of this Court,

this Petition for Writ of Certiorari should be

granted.

HATCHETT, DEWALT & HATCHETT

Wa ‘ vy ,Tr~

BY: Le : Anh, 4

Attorney for Petitioner

485 Orchard Lake Road

Pontiac, MI 48053

(313) 334-1587

20

Appendix 1

No. 88-1953

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

ON APPEAL FROM THE

Vv. UNITED STATES

DISTRICT COURT FOR

OCELIA M. PERKINS; THE EASTERN DISTRICT

DONALD J. McQUEEN; OF MICHIGAN.

JOYCE SCOTT; PAMELA

| H. WILLIAMS; ANDERS

MIGDALECK; and

STELLA H. WARE,

Defendants-Appellants.

| BEFORE: NELSON and RYAN, Circuit Judges;

and MEREDITH, District Judge. *

RYAN, JR., Circuit Judge. Defendants

. Anders Migdaleck, Donald J. McQueen and

Pamela H. Williams appeal their convictions

for mail fraud, 18 U.S. § 1341, and inter-

| State transportation of securities taken by

:

_ fraud, 18 U.S.C. § 2314. Defendants Ocelia

M. Perkins, Stella H. Ware and Joyce Scott

appeal their convictions for mail fraud, 18

* The Honorable Ronald E. Meredith, United

States District Judge for the Western

_ District of Kentucky, sitting by

designation.

No. 88-1953 -2-

U.S.C. § 1341. All convictions arose from

a scheme to defraud insurance companies by

intentionally setting fires to residential

homes located in the Detroit area in order

to collect insurance proceeds. Several is-

sues are raised on appeal but none require

reversal. Accordingly, we affirm.

Bi

Defendant Migdaleck, a licensed con-

tractor and owner of Town and County Builders

and Anders Construction Company purportedly

Organized the arson scheme and paid the par-

ticipants from the insurance proceeds. De-

fendants McQueen, Williams and Perkins were

homeowners who arranged to have fires set at

their respective homes. Defendant Ware helped

arrange the fire at defendant Perkins’ home.

In each case, claims were made with the home-

owners' insurance carriers through use of

mails.

On January 6, 1988, all the defendants

and others were charged with mail fraud, 18

. No. 88-1953 -3-

U.S.C. § 1341, and interstate transportation

of securities taken by fraud, 18 U.S.C. §

2314, in a twenty-three count indictment.

Defendant Migdaleck was indicted on all

twenty-three counts as was Anita Vianveva

Sackett, a licensed public adjuster, who

worked for defendant Migdaleck. Sackett en-

tered into a plea agreement and testified

at trial in exchange for leniency. The arso-

_ mists who set the fires also testified.

The first two counts involved the

| January 18, 1983 arson fire at defendant

McQueens' residence. Migdaleck and McQueen

were charged with mail fraud and interstate

transportation of securities taken by fraud.

Migdaleck was acquitted and McQueen was con-

victed.

Counts three and four involved the

February 25, 1983 arson fire at the residence

of Ronald Pitts. Pitts, Migdaleck and McQueen

were charged with two counts of mail fraud.

Pitts pled guilty prior to trial and testified

No. 88-1953 -4-

in exchange for leniency. Both Migdaleck

and McQueen were convicted.

Counts five through nine involved the

July 27, 1984 arson fire at White's resi-

dence. Migdaleck and White were charged

with five counts of mail fraud. Both were

convicted.

Counts ten through twelve involved the

October 20, 1983 arson fire at defendant

_Williams' residence. Migdaleck, White and

_ Williams were charged with mail fraud and two

- counts of interstate transportation of securi-

ties taken by fraud. Migdaleck was acquitted

_ and White and Williams were convicted.

Counts thirteen and fourteen involved

the May 11, 198 arson fire at Perkins' home.

Migdaleck, Perkins and Ware were charged with

two counts of mail fraud. All were convicted.

Counts fifteen through twenty involved

the January 15, 1983 arson fire at the home

of Doris Lauderdale. Lauderdale and Migdaleck

were charged with interstate transportation of

see reed Sot Bia Bia Se ec

Se Da lence vt Se ne beh

Seabees “ese

;

Z

4

No. 88-1953 -5-

securities taken by fraud and five counts of

mail fraud. Both were acquitted.

Counts twenty-one and twenty-two in-

volved the March 15, 1983 arson fire at the

home of Joyce Manns. Migdaleck and Scott

were charged with two counts of mail fraud.

Migdaleck was acquitted and Scott was con-

victed.

Count twenty-three involved the January

18, 1984 arson fire at a residence owned by

Willie Dash. Migdaleck and White were

charged with mail fraud. Both were convicted.

Following the imposition of sentences,

defendants appealed. Michael White's appeal

was dismissed as untimely.

II. Defendant Migdaleck

A. Failure to Instruct Jury

on Exculpatory Testimony.

Defendant Migdaleck contends the trial

court erred in failing to properly instruct

the jury, pursuant to Cool v. United States,

409 U.S. 100 (1972), and United States v.

No. 88-1953 -6-

Stulga, 531 F.2d 1377 (6th Cir. 1976, appeal

after remand, 584 F.2d 142 (6th Cir. 1978),

concerning evaluation of the exculpatory tes-

timony offered by the three arsonists.

The testimony of arsonists Al Meredith,

Jr., Willie Weems and Adar Hassan was essen-

tially favorable to defendant Migdaleck. The

three testified that the arson fires were re-

presented to Migdaleck as legitimate losses

and all three witnesses inferred that Al

Meredith, Sr. operated the scheme. However,

Al Meredith, Sr. testified that Migdaleck

knew about the scheme, had made Sackett a

_ public adjustor to further the scheme, paid

commissions to the arsonists, and provided

the funds used to purchase the materials

used to start the fires.

On appeal, defendant Migdaleck asserts

the trial court erred in failing to give an

instruction which would enhance the effect

of the exculpatory testimony of the three

arsonists.

No. 88-1953 -7-

The court instructed the jury:

The testimony of one who

asserts by his testimony

that he is an accomplice

may be received in evidence

and considered by the jury

even though not corroborated

by other evidence and given

such weight as the jury feels

it should have. You should

always keep in mind, however,

that such testimony is always

to be viewed with caution and

considered with great care.

You should never convict a

Defendant upon the unsupported

testimony of an alleged acconm-

plice unless you believe that

unsupported testimony beyond

@ reasonable doubt.

(Emphasis added.) This instruction was re-

quested by defendant McQueen and is based

on Devitt and Blackmar, Federal Jury Practice

and Instructions, 3d ed, § 17.06 (1977).

At trial, after the court finished in-

structing the jury, counsel for defendant

Migdaleck objected to the foregoing instruc-

tion, stating that the instruction that should

have been given is:

[1]£ you believe the evi-

dence of the accomplice,

and you feel that in and

No. 88-1953 -8-

of itself is sufficient to

satisfy you that it is proof

of guilt beyond a reasonable

doubt, then you may accept it.

On appeal, defendant contends that,

based on his objection and requested single-

sentence instruction, the trial court should

have been alerted to its duty to instruct the

jury on the standard for evaluating accomplice

testimony pursuant to Cool v. United States,

499 U.S. 100 (1972), and United States v.

Stulga, 531 F.2d 1377 (6th Cir. 1976), appeal

after remand, 584 F.2d 142 (6th Cir. 1978).

We disagree.

In Cool, the accomplice testified for

the defense and his testimony was completely

exculpatory. Over defense counsel's objec-

tion, the district court instructed the jury

to consider the accomplice testimony if it

found it true beyond a reasonable doubt. 409

U.S. at 102. The Supreme Court reversed,

finding the instruction placed an improper

burden on the defense, obstructed the defen-

No. 88-1953 -9-

dant's sixth amendment right to present ex-

culpatory accomplice testimony to the jury,

and, in effect, reduced the government's

burden of proof. 409 U.S. at 103, 104. In

a footnote, the Court also found it confusing

and unfair to instruct the jurors that they

could convict on the basis of accomplice tes-

timony without telling him they could also

acquit on this basis. 409 U.S. at 103, n.4.

In Stuiga, several accomplices testified

for the government. Two of them partially

exculpated defendant. The defense counsel

' objected to the court's instruction on accom-

plice testimony and specifically requested

that the jury be instructed that exculpatory

testimony of an accomplice did not have to be

believed beyond a reasonable doubt or by a

preponderance. Id. at 1380. The court de-

clined to do so. On appeal, this court held

the trial court committed reversible error in

failing to instruct the jury on the manner in

which to evaluate an accomplice's exculpatory

No. 88-1953 -10-

testimony in light of the “virtual dirth of

inculpatory testimony" and the "wealth of

exculpatory testimony." Id. at 1380. This

court concluded that the lack of precision

in the charge could have confused the jury

and led it to conclude that in order to con-

sider the accomplice's exculpatory testimony

at all, it had to believe the testimony be-

yond a reasonable doubt. 1d.+

Here, unlike the situation in Stulga or

Cool, defense counsel's requested instruction

was not a request that the jury be advised on

how to evaluate exculpatory accomplice testi-

mony (Stulga), or a request to instruct the

. On appeal, following the conviction on re-

mand, the defendant in Stulge again contested

the court's instruction on accomplice testi-

mony. The trial court left unchanged that

portion of the instruction objected to here;

instead, the court merely added that exculpa-

tory accomplice testimony should be consider-

ed and weighed along with all other evidence

and could be the bases of a not guilty ver-

dict. In United States v. Stulga, 584 F.2d

142, 144-145 (6th Cir. 19/78), this court held

the instruction given by the trial court was

sufficient.

—

No. 89-1953 -ll-

jury that accomplice testimony can provide

the basis of acquittal (Cool). Rather, de-

fense counsel's objection and proposed in-

struction, in effect, asked the court to

instruct the jury that it could accept incul-

patory accomplice testimony if it believed

the testimony beyond a reasonable doubt. It

was essentially the same instruction as was

given by the court, although the court's in-

struction stated the matter more understand-

ably and more accurately.

We are presented then with a situation

-in which the defendant assigns error to the

trial court's failure to instruct the jury

as to the proper manner in which to evaluate

exculpatory accomplice testimony, although no

timely and understandable request for such

an instruction was made at trial and no objec-

[tion registered to its omission. Consequently,

we review this assignment of error under the

‘plain error rule. Fed. R. Crim. P. 52(b).

‘Where, as here, no specific objection was

pF ONT ANI OR Cae Rte: pile ih Bide LL Ss i NIE EC ENED Seon

--"ae lal

No. 88-1953 -12-

registered at trial, reversal is required

only where a miscarriage of justice would

result. United States v. Hook, 781 F.2d

1166, 1172 (6th Cir.), cert. denied, 479

U.S. 882 (1986). We think it is manifest

that no miscarriage of justice resulted fror

the court's failure to instruct, sua sponte,

on the manner in which the jury might have

evaluated the exculpatory accomplice testi-

mony, and defendants cite no authority to

the contrary. See United States v. Vigi, 515

F.2d 290 (6th Cir.), cert. denied, 423 U.S.

£912 (1975).

B. Denial of New Trial.

Defendant Migdaleck also contends the

>) trial court erred in failing to recognize

) that it could weigh the credibility of wit-

| nesses when reviewing a new trial motion on

the ground that the verdict was against the

(great weight of the evidence. Fed. R. Crim.

aP. 33.

The trial court's authority in deciding

No. 88-1953 -13-

a motion for a new trial on the ground that

the verdict is against the great weight of

the evidence, Fed. R. Crim. P. 33, is much

broader than its authority on a motion for

acquittal based on the sufficiency of the

evidence, Fed. R. Crim. P. 29. United

States v. Turner, 490 F. Supp. 583, 593

(E.D. Mich 1979), aff'd (without opinion),

633 F.2d 219 (6th Cir. 1980), cert. denied,

450 U.S. 912 (1981); United States v.

Arrington, 757 F.2d 1484, 1485 (4th Cir.

1985). In the former, the court may weigh

the evidence and consider the credibility of

the witnesses. Turner, 490 F. Supp. at 593;

Arrington, 757 F.2d at 1485.

Motions for new trial are disfavored and

ythey are granted only with great caution.

‘Turner, 490 F. Supp. at 593. Ordinarily, a

new triai should be granted only where the

sevidence weighs so heavily against the verdict

that a miscarriage of justice would result if

‘the verdict were allowed to stand. Turner,

No. 88-1953 sfhe

at 593; Arrington, at 1485. A decision on a

motion for new trial will not be upset on

appeal absent an abuse of discretion.

Arrington, 757 F.2d at 1486.

The theory of defendant Migdaleck's

motion is that the principal witness against

him, Al Meredith, Sr., was completely un-

worthy of belief. At the hearing on the

motion, defendant contended that without

Meredith Sr.'s testimony, there was no proof

defendant participated in the arsons, and the

arsons were the whole crux of the case. The

government contended that it had shown by

circumstantial and direct evidence that defen-

dant Migdaleck controlled the operation in

that he paid all the participants and con-

trolled the disbursement of insurance pro-

ceeds. ;

The trial court denied the new trial

motion for two reasons: first, the court

did not believe credibility questions could

be raised by a new trial motion pursuant to

No. 88-1953 -15-

United States v. Johnson, “ 487 F.2d 1278,

1280 (4th Cir. 1973), and there was no basis

to substitute the court's judgment for the

jury in weighing the credibility of Al

Meredith, Sr.; second, the court found the

other evidence of Migdaleck's guilty was suf-

ficient to support the verdict. The court

noted that the jury was quite perceptive and

found defendant failed to present anything to

establish that the evidence preponderated

heavily against the verdict.

Defendant is correct that the trial court

failed to recognize that, on a motion for new

trial on the ground that the verdict is against

the great weight of the evidence, the court was

indeed entitled to consider the credibility of

the witnesses. If the sole basis for the dis-

trict court's denial of the new trial motion

was that credibility was not a proper subject

Johnson involves a new trial motion based

Jon newly discovered evidence, not based on a

‘verdict that is against the great weight of

}the evidence.

No. 88-1953 -16-

for the court to examine, we would be inclin-

ed to remand this case to the district court

to consider the credibility question. How-

ever, the court also found that the other

evidence inculpating Migdaleck was sufficient

to support the verdict, a conclusion well-

supported in the record. Moreover, the dis-

trict court commented favorably on the jury's

ability to evaluate the evidence since it ac-

quitted defendant Migdaleck on some of the

charges.

Given the record supported alternative

basis for the trial court's denial of the new

4 trial motion, and the rule that a new trial

| shouta be granted on the ground here asserted

)} only when the evidence preponderates heavily

against the verdict, we cannot say the trial

xin ee

court abused its discretion in denying defen-

le AE a

'dant's motion.

C. Constructive Amendment of Indictment.

Defendants Migdaleck and Williams contend

\that the trial court constructively amended

|

3

¥

No. 88-1953 -17-

the indictment when it allowed Anita Sackett

to testify that Migdaleck inflated the build-

ing loss portion of insurance claims by

directing the adjustor to "go heavy" on the

losses and testify that the claim for the

fire at White's residence was indeed inflated.

At trial, counsel for defendant Migdaleck

objected to Sackett's testimony on the infla-

tion of the building loss portion of insur-

ance Claims on relevancy grounds. The objec-

tion was overruled.

The indictment against defendants

_ Migdaleck and White was based on the premise

that defendants were involved in a scheme to

defraud imsurance companies by intentionally

setting fires to residential homes and using

| the mails to collect the insurance proceeds.

The indictment did not allege that defendants

inflated the building portion of the insur-

ance claims.

A court may not require a defendant to

be tried on charges that are not included in

No. 88-1953 -18-

the indictment. Stirone v. United States,

361 U.S. 212 (1960). A constructive amend-

ment occurs when the charging terms of the

indictment are, in effect, altered by the

prosecutor of the court. United States v.

Atisha, 804 F.2d 920, 927 (6th Cir. 1986),

cert. denied, 479 U.S. 1067 (1987) (quoting

| United States v. Jones, 647 F.2d 696, 700

(6th Cir.), cert. denied, 454 U.S. 898

(1981)). A variance occurs when the charging

terms of the indictment are left unaltered

ee

but the evidence offered at trial proves

materially different from those alleged in the

indictment. Id.

A constructive amendment is per se pre-

we

sudicial but a variance is not grounds for

Ngversal unless the defendant's substantial

rights are affected. United States v.

Goldfarb, 643 F.2d 422, 433 (6th Cir.), cert. |

denied, 454 U.S. 860 (1981). ;

To determine whether a constructive amend-

ment occurred, the court must decide whether

No. 88-1953 -19-

the elements of the crime charged were al-

tered. Atisha, 804 F.2d at 97 (citation

omitted). (Emphasis added.)

The elements the government is required

to prove for mail fraud are a scheme to de-

fraud and use of the mails to execute or fur-

ther the scheme. United States v. Schilling,

561 F.2d 659, 661 (6th Cir. 1977).

Defendants contend the introduction of

evidence that the building loss portion of

the claims were inflated, in effect, created

an alternate theory for the jury to find de-

fendants had entered into a scheme to defraud

and, thus, constituted a constructive amend-

ment of the indictment. The prosecution con-

tends the trial court did not err in admitting

the evidence to show the fraudulent nature of

the scheme. The government contends the evi-

dence did not change the fact that the scheme

to defraud was based on arson but, instead,

showed defendants’ relationship to the scheme

and how they profited by it.

No. 88-1953 -20-

We find that the mail fraud charge in

the indictment was the same charge described

to the jury and conclude that the introduc-

tion of the testimony on claim inflation did

not change the basic theory of the fraudulent

scheme so as to constitute a constructive

amendment of the indictment. Atisha, 804 F.

2d at 927. Moreover, we hold that had the

introduction. of the evidence constituted an

impermissible variance, any error in admitt-

ing the evidence was harmless, United States

v. Mahar, 801 F.2d 1477, 1503 (6th Cir. 1986),

since the testimony at trial centered on the

scheme to commit arson, the underlying basis

for the mail fraud charge set forth in the in-

dictment.

III. Defendant Williams’ Denial of

Effective Assistance of Counsel.

Defendant Williams also contends that

she was denied effective assistance of counsel

because her attorney also represented defendant

White. Specifically, she contends an actual

No. 88-1953 -21-

conflict of interest existed because her

counsel failed to cross-examine Meredith,

Sr. and arsonist Willie Weems, although their

testimony made the defense of shifting the

a

blame to White a viable option. Defendant

claims the trial court failed to inquire

about the joint representation and failed to

advise defendant about the right to separate

representation as required by Fed. R. of Crim.

P. 44(c). Williams made no objection below

to the joint representation.

Multiple representation is not a per se

violation of the sixth amendment right to

effective assistance of counsel. Holloway v.

Arkansas, 435 U.S. 475, 482 (1978). To estab-

lish a sixth amendment violation, a defendant

who raises no objection below must show that

an actual conflict of interest adversely

affected his lawyer's performance. Cuyler v.

Sullivan, 446 U.S. 335, 348 (1980).

At oral argument, defendant conceded

that the trial court's failure to conduct a

>

—_ ee ae a

No. 88-1953 -22-

Fed. R. Crim. P. 44(c) inquiry did not auto-

matically require reversal. This is in accord

with the position of those circuits which have

addressed the issue. See United States v.

Crespo de Llano, 830 F.2d 1532, 1539 (9th

Cir.), reh. den., 838 F.2d 1006 (9th Cir.

1987) (citations omitted). It is also in ac-~-

cord with the advisory committee notes to Rule

44(c) which state:

The failure in a particular

case to conduct a Rule 44(c)

inquiry, would not, standing

alone, necessitate the revers-

al of a conviction of a jointly

represented defendant.

Williams argues that counsel's failure to

cross-examine Meredith, Sr. and Weems demon-

strated an actual conflict of interest be-

cause their testimony revealed that White was

more culpable than Williams thus enhancing the

likelihood of success of the shifting blame

defense.

A conflict of interest must be actual,

not hypothetical or merely possible. Cuyler,

446 at 350; United States v. Carter, 721 F.2d

No. 88-1953 -23-

1514, 1537 (llth Cir.), cert. denied, 469

U.S. 819 (1984). The defendant must demon-

strate that the interests of the joinly repre-

sented defendants wsere so inconsistent that

the pursuit of a plausible argument in favor

of one would damage the defense of the other.

Carter at 1536; United States v. Romero, 780

F.2d 981, 986 (llth Cir. 1986). In order for

a shifting blame defense to give rise to an

actual conflict of interest, the defense must

be realistically available to defense counsel.

United States v. Carter, 721 F.2d at 1537;

Romero, at 986.

Defendant Williams relies heavily on the

failure of her trial counsel to cross-examine

Meredith, sr. and Weems on the roles Williams

and White played in connection with the fire

at the residence owned by Williams. At trial,

Meredith, Sr. testified that Williams wanted

no part in the fire at first, but stood in

line with the rest of the perpetrators to col-

lect her share of the commission after the fire

No. 88-1953 . -24-

occurred. Weems, the arsonist, testified that

prior to the fire, Williams had him review

the insurance policy to make sure the pro-

perty was adequately insured; Williams agreed

to the fire and paid Weems a deposit, a sum

Weems required to insure Williams was defi-

nite about the plan. Williams testified and

denied ever speaking with Meredith, Sr. or

Weems prior to the fire, and denied she was

involved in any fraudulent scheme to set her

home on fire.

We agree that the evidence of defendant

White's participation in the overall scheme,

and in particular his involvement in the

Williams' fire, was stronger than the evidence

the government had against Williams. However,

that does not diminish the force of the evi-

dence that Williams was identified as a par-

ticipant in the scheme to set the home she

owned on fire.

We think defendant Williams has failed

to show that she stood to gain significantly

3

;

No. 88-1953 -25-

by abandoning the defense pursued by her

trial counsel. She does not contend that her

co-defendant would have exculpated her. Her

only allegation of actual conflict relates to

her contention that White is more blameworthy

than she is. She does not contend the evi-

dence against her was insufficient to convict.

We conclude defendant Williams failed to

demonstrate an actual conflict of interest.

See Carter, 721 F.2d at 1537, United States

v. Benavidez, 664 F.2d 1255, 1260-61 (5th

Cir.), reh. denied, 671 F.2d 1380 (5th Cir.),

cert. denied, 457 U.S. 1121 and 457 U.S.

1135 (1982).

IV. Defendant Scott

A. Admission of the

Check Evidence.

Defendant Scott contends the admission

into evidence of two checks written by Anders

Construction Company to Scott and a 1983 check

registry from Anders Construction Company was

improper because the evidence was irrelevant,

prejudicial, and constituted inadmissible

No. 88-1953 -26-

evidence of other crimes and bad acts. Fed.

R. Evid. 404(b). At trial, defendant con-

tended the check evidence was inadmissible

because the checks were not issued within

the time period charged in the indictment and

because the checks and the check registry sug-

gested the inference that she was involved in

other arson fires for which she was not charged.

Defense counsel also contended that the evi-

dence was used to suggest guilt by association.

The government contends that the rele-

vance of the two checks was to show that defen-

dant Scott was not just Migdaleck's secretary,

as was Claimed, but was paid commissions for

bringing business to Anders Construction Com-

pany, as were other "programmers," and the

check registry was introduced to show the

relationship between the various parties to

the fraudulent scheme.

The trial court held the checks were

relevant and their probative value was not

outweighed by their prejudicial effect.

No. 88-1953 -27-

A trial court does not err in admitting

evidence that has a tendency to make more or

less probable a material proposition for

which it is offered, unless it is shown that

the probative value of the evidence is sub-

stantially outweighed by its prejudicial ef-

fect. There was strong circumstantial evi-

dence, specifically the testimony of Meredith,

Sr. and Hassan, that Scott was a principal in

the scheme to burn down the premises on Lauder

Avenue on March 15, 1983. The essence of

Scott's defense was that she was merely a

secretary at Anders Construction and was not

involved in the arson for profit scheme. The

court admitted the challenged checks upon the

government's argument that the checks were ad-

missible as proof that Scott was more than

just a secretary, but was a "programmer" being

paid commission for bringing arson repair busi-

ness to Migdaleck, just as other "programmers"

were. The check register for 1983 was admitted

in order to show that commission checks were

No. 88-1953 -28-

written to Meredith, Sr., and Jr., Weems,

Hassan, scott, and other defendants in the

case at or near the time of the fire to

which each was connected in the testimony,

and to show the relationship between the

various defendants during 1983. An addition-

al reason the check register was offered and

admitted is that the government had posses-

sion of some, but not all, of the checks

relevant to the arson schemes, and wished to

prove, by introduction of the check register,

the pattern of issuance of checks related to

arson schemes.

We think both the two checks and the

1983 check register were shown to be relevant

and were therefore admissible. Moreover, the

defendant Scott has failed to demonstrate that

the relevance of the three exhibits was sub-

Stantially outweighed by the possible preju-

dicial effect of suggesting Scott's involve-

ment in a still wider scheme of arson for

profit than the March 15, 1983 Lauder Avenue

No. 88-1953 -29-

fire, a point never argued by the government.

We conclude the trial court did not err in

admitting the challenged exhibits.

B. Sufficiency of the

Evidence.

Defendant Scott's second issue on appeal

is tied to her first. She contends there was

insufficient evidence to convict her of mail

fraud because the government failed to prove

she entered into a scheme with Migdaleck to

defraud on the dates charged in the indict-

ment. scott contends the government's case

rested on the two challenged checks and the

testimony of immunized convicted arsonists,

whose credibility was highly questioned.

She notes that defendant Migdaleck was ac-

quitted of the charges on which she was con-

victed.

In order to convict a defendant of mail

fraud, the prosecution must prove a scheme to

defraud and use of the mails to execute or

further the scheme. United States v.

Schilling, 561 F.2d 659, 661 (6th Cir. 1977).

No. 88-1953 -30-

Defendant Scott does not contest the suffi-

ciency of the evidence on the use of the

mails element of the mail fraud charge.

This court reviews a sufficiency of the

evidence claim by determining whether, in

viewing the evidence in a light most favor-

able to the prosecution, a rationale trier of

fact could have found the essential elements

of the crime proved beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319 (1979),

reh. denied, 444 U.S. 890 (1979).

Al Meredith, Sr. testified that he spoke

with defendant Scott about the March 15, 1983

fire at Joyce Manns' house before it occurred.

Scott introduced Manns as a "customer". Dur-

ing the conversation between Meredith, Sr.,

Manns and Scott, Meredith, Sr. checked Manns'

insurance policy and discussed Manns' poten-

tial recovery from the fire and where Manns

would stay while repairs were being made.

Adar Hassan testified that Meredith, Sr.

asked him to meet Scott at Manns' home and set

No. 88-1953 -31-

the fire. Hassan met Scott at Manns' home on

the day of the fire, went in and, while Scott

and the cccupants remained downstairs, went

upstairs and set the fire.

The two checks were admitted to show de-

fendant Scott was paid commissions by defen-

dant Migdaleck.

The evidence, taken in a light most favor-

able to the prosecution, establishes defendant

Scott was a participant in the scheme to de-

fraud the insurance company and is sufficient

to convict of her of two counts of mail fraud,

18 U.S.C. § 1341.

V. Defendant McQueen's objection

to the Jury Instruction.

Defendant McQueen contends the trial

court failed to instruct the jury that the in-

terstate movement of the securities must have

been reasonably foreseeable by defendant in

order to convict him of interstate transporta-

tion of securities taken by fraud, 18 U.S.C. §

2314. The court instructed the jury:

No. 88-1953 -32-

If the evidence establishes

to your satisfaction beyond

a reasonable doubt that a

Defendant knowingly caused

the secuirites .. . to be

transported from one state

to another, then the Defen-

dant caused the securities

to be transported in inter-

State commerce within the

meaning of the statute.

{I]t is not necessary

that the Defendant knew the

security would be transport-

ed in interstate commerce.

Of course, it is common

knowledge that checks or

drafts drawn on an out-of-

state bank will be sent to

that bank for collection. If

. . &@ Defendant knowingly

caused the checks .. . to be

put in interstate commerce,

then .. . he has caused it to

be transported in interstate

commerce within the meaning of

the law.

(Emphasis added.) Defendant objected to the

instruction, stating that the instruction

should have included language that the inter-

State transportation of the documents must

have been reasonably foreseeable to defendant.

The majority of courts addressing the

matter have held that the interstate trans-

No. 88-1953 -33-

portation requirement of § 2314 is merely to

insure federal jurisdiction and does not im-

pose a requirement that the government prove

that the interstate transportation was in any

way reasonably foreseeable. United States v.

White, 451 F.2d 559, 560 (6th Cir. 1971);

cert. denied, 405 U.S. 1071 (1972); United

States v. Kibby, 848 F.2d 920, 923 (8th cir.

1988); United States v. Squires, 581 F.2d 408,

409-10 (4th Cir. 1978).

Therefore, we conclude the trial court

did not err in failing to instruct the jury

that the foreseeability of the interstate

transportation of the securities is reauired

to convict defendant of interstate transporta-

tion of securities taken by fraud, 18 U.S.C.

§ 2314.

VI. Defendants Perkins and Ware

Denial of Severance Motion.

Defendants Perkins and Ware areve that

joinder was improper under Fed. R. Crim. P.

8(b) since they did not participate in the

"sare series of acts or transactions" as the

No. 88-1953 -34-

other defendants. Alternatively, defendants

argue that even if joinder was proper under

Rule 8(b), severance should have been grant-

ed under Fed. R. Crim. P. 14 because of the

substantial prejudice to defendants resulting

from the jury considering the evidence against

other persons in order to convict the defen-

dants.

At trial, all defendants joined in the

motion asserting improper joinder, Rule 8(b),

and requesting severance due to prejudice,

Rule 14; however, only Perkins and Ware ad-

dress this issue on appeal. The district

court held that there was a factual similarity

in the counts; the proofs overlapped; the

participants had the same objective, to burn

homes and collect the insurance; and judicial

economy would best be served by joinder. The

court further held that the defendants failed

to make a strong showing of substantial preju-

dice and declined to sever the trial under

Rule 14.

No. 88-1953 -35-

Joinder of multiple defendants under

Rule 8(b) is proper if each count in the in-

dictment arises out of the same series of

acts or transactions. United States v.

Hatcher, 680 F.2d 438, 441 (6th Cir. 1982).

A group of acts or transactions constitutes a

series if they are logically related and in-

volve overlapping proofs. United States v.

Swift, 809 F.2d 320, 322 (6th Cir. 1987)

(Citing United States v. Johnson, 736 F.2d 773,

776 (6th Cir.), cert. denied, 474 U.S. 862

(1985)). Rule 8(b) is broadly construed in

favor of joinder because Rule 14 provides pro-

tection against prejudicial joinder. Swift,

at 322. A significant consideration is whe-

ther joinder would promote judicial economy.

Id. Review of a district court's refusal to

sever pursuant to Rule 8 is reviewed for an

error of law but is subject to the harmiess

error standard. Hatcher, 680 F.2d at 442.

We conclude joinder was proper. All

twenty-three counts of the indictment involved

No. 88-1953 -36-

a series of schemes to defraud insurance com-

panies by intentionally setting fire to resi-

dential dwellings in order to collect insur-

ance proceeds. The record reveals that defen-

dants Perkins and Ware, as well as the other

defendants, were connected to the kingpin of

the entire scheme to defraud, defendant

Migdaleck, and the mail fraud counts against

Perkins and Ware were logically interrelated

with the other acts charged in the indictment.

See Johnson, 763 F.2d at 776. Moreover, join-

der served the interest of judicial economy.

See Swift, 809 F.2d at 322. We conclude,

therefore, that joinder was proper under Rule

8(b).

Under Fed. R. Crim. P. 14, the trial

court may order severance if a defendant is

prejudiced by joinder of defendants or claims.

Swift, 809 F.2d at 322. This court reviews

the district court's denial of a severance

motion under Rule 14 for an abuse of discre-

tion, and to establish an abuse of discretion

No. 88-1953 -37-

the defendant must make a strong showing of

prejudice. Id. The defendant must show the

jury was not able to separate and treat dis-

tinctively evidence relevant to each defen-

dant and even if some potential jury confu-

sion is established, this must be balanced

against society's need for speedy and effi-

cient trials. Id. (quoting United States v.

Gallo, 763 F.2d 1504, 1525 (6th Cir. 1985),

cert. denied, 474 U.S. 1068, and 474 U.S.

1069, and 475 U.S. 1017 (1986)).

Defendants’ basic contention on appeal

is that they were prejudiced by the spillover

of evidence relating to the other arson fires

because the evidence against them was not

overwhelming.

Albert Meredith, Jr. testified that defen-

dant Ware contacted him and told him that de-

fendant Perkins wished to speak to him about

burning a dwelling. Meredith, Jr. spoke to

Perkins in Ware's presence and discussed the

arson, the fire repairs, and the monetary

No.~ 88-1953 -38-

advancement. They proceeded to Perkins' home

where Meredith, Jr. examined Perkins' insur-

ance policy and determined where the fire

should be set. Thereafter, the fire was set

by Adar Hassan. Perkins admitted Meredith, Jr.,

Hassan and Ware into her home and then Perkins

and Ware left. Hassan set the fire.

Adar Hassan testified that he, Meredith,

Jr. and Ware drove to Perkins home on the day

of the fire. They discussed what type of fire

was required. At Perkins' home, Hassan discus-

sed the location of the fire with defendant

Perkins and then asked everyone to leave while

he prepared the fire.

"Absent a showing of substantial preju-

dice, spillover of evidence from one case to

another does not require severance.'' Johnson,

763 F.2d at 777 (quoting Gallo, 763 F.2d at

1526).

In view of the foregoing evidence, any

spillover evidence of other schemes to inten-

tionally set fire to residential dwellings

No. 88-1953 -39-

cannot establish substantial prejudice.

Moreover, the district court gave the jury

Cautionary instructions regarding the separ-

ate ccnsideration to he given to each defen-

dant. A jury is presumed capable of sorting

out evidence and considering each count and

each defendant separately. Swift, 809 F.2d

at 323. That the jury did so in the instant

case is evidenced by the fact that one home-

owner was acquitted and defendant Migdaleck

was acquitted in part.

As this court said in Swift, "even if

there is some potential for jury confusion,

it is small and does not outweigh ‘society's

need for speedy and efficient trials.'"' Id.

(quoting Gallo, 763 F.2d at 1525). the trial

court did not abuse its discretion in denying

defendants’ severance motion under rule 14.

VII. Defendant Perkins’ co-conspirator

Hearsay Objection.

Defendant Perkins contends that the trial

court erred in admitting the hearsay testimony

of Adar Hassan and Albert Meredith, Jr.

No. 88-1953 -40-

Defendant did not object to the testi-

mony by Hassan that he spoke to Perkins at

her home on the day of the fire and Perkins

had told him she wanted the fire set in the

kitchen. Thus, we are not obligated to ad-

dress this issue. In all events, the testi-

meny appears admissible as an admission under

Fed. R. Evid. 801(d)(2) (A).

Defendant did object to the testimony of

Albert Meredith, Jr. regarding Perkins' agree-

ment to proceed with plans to set a fire at

her home.

Meredith, Jr. testified that he had spo-

ken with defendant Perkins and defendant Ware

about the possibility of setting a fire at

Perkins’ residence. He reviewed Perkins' in-

surance policy and inspected her home to select

a location for the fire. He testified that

Perkins took some time to think about it but

eventually he heard from defendant Ware that

Perkins was ready to have a fire.

Defendant objected to Meredith, Jr.

No. 88-1953 -4]-

testifying as to what defendant Ware told him

Perkins said as the testimony was hearsay.

The court stated the testimony was admissi-

ble under Fed. R. Evid. 801(d)(2)(E) as a

statement of a co-conspirator.

On appeal, defendant Perkins contends

the trial court failed to make the preliminary

determination required for the admission of a

co-conspirator's statement; namely, that a

ccnspiracy existed, and that the statement

was made during the course of and in further-

ance of the conspiracy.

Fed. R. of Evid. 801(d)(2)(E) provides:

(d) A statement is not hearsay

if--

(2) The statement is offered

against a party and is

(E) a statement by a co-

conspirator of a

party during the

ccurse and in fur-

therance of the

conspiracy.

In United States v. Enright, 579 F.2d

No. 88-1953 -42-

980 (6th Cir. 1978), this court held that the

admissibility of a co-conspirator's statement

under Rule 801(d)(2)(E) is for the court to

decide under Fed. R. Evid. 104(a) and the pre-

liminary question to be answered is whether

the co-conspirator's statement falls within

the Rule, that is, whether a conspiracy exist-

ed and whether the statement was made in the

furtherance of the conspiracy. Id. at 984,

985.

The United States Supreme Court in

Bourjaily v. United States, 483 U.S. 171

(1987), agreed that Rule 104(a) governs the

admissibility of a co-conspirator's statement

and a preponderance of the evidence standard

applies. Id. at 175. The court also held

that the trial court may consider the out-of-

court statement of the alleged co-conspirator

sought to be admitted when makings its prelia-

inary determination on whether the co-

conspirator statement is admissible under 801

(d)(2)(E). Id. at 180. However, the court

No. 88-1953 »h%e

declined to decide whether the lower court

could rely solely upon the co-conspirator's

hearsay statement to establish that a con-

spiracy existed by a preponderance of the

evidence under Rule 104(a). Id.

In this case, defendant Perkins contends

that Meredith, Jr.'s hearsay testimony that

Ware told him that Perkins said she was ready

to have a fire was the only testimony linking

Perkins to the conspiracy. This is not the

case. Meredith, Jr. testified that he spoke

with Perkins about a plan to set fire to her

home prior to the time the alleged statement

by Ware was made, and Hassan testified that he

discussed the location of the fire with Perkins

the day the fire was set.

In light of the above testimony, the hear-

say statement of Meredith, Jr., that Ware said

that Perkins said she was ready to have the

fire, is a statement in furtherance of the

conspiracy, made by a co-conspirator, during

the course of the conspiracy. Nor is the

No. 88-1953 -44-

Meredith, Jr. testimony challengable as

double hearsay, since the Perkins statement

to Ware is "not hearsay" under Fed. R. Evid.

801(d)(2) (A), since it is a statement of ad-

mission. Therefore, the trial court did not

abuse its discretion in admitting the co-

conspirator statements as evidence. See

United States v. Rios, 842 F.2d 868, 874 (6th

Cir. 1988), cert. denied, 108 S.Ct. 840 (1989).

Defendant Perkins also contends that the

trial court failed to make a determination on

the record that sufficient testimony existed

to connect Perkins with the conspiracy charge,

when the court held that Meredith, Jr. could

testify as to what Ware told him Perkins said

under the co-conspirator exception to the

hearsay rule, 801(d)(2)(E). The short answer

to Perkins’ contention is that the court, in

passing upon the challenge to the Meredith, Jr.

testimony, was not obligated tc announce on

the record the preliminary finding of fact

which conditioned the admissiblity of the

No. 88-1953 -45-

testimony under Fed. R. Evid. 801(d)(2)(F).

See United States v. Curro, 847 F.2d 325,

328 (6th Cir.), cert. denied, 109 S.Ct. 116

(1988).

VIII. Trial Court Vouched

for Prosecutor.

All defendants except Scott contend the

trial court abused its discretion in failing

to grant a mistrial on the basis that the

ccurt vouched for the credibility of the prose-

cution when, in response to a request by coun-

sel for defendant Ware that she be allowed to

verify after each day of trial that each exhi-

bit admitted that day was actually received

in evidence, the court said it would rely on

the honesty of the prosecutor™”and denied coun-

sel's request.

"The decision to order a mistrial rests

in the trial court's discretion.'' Hamm v.

Jabe, 706 F.2d 765, 767 (6th Cir. 1983).

During the direct examination of Al

Meredith, Sr., the prosecution moved to admit

certain documentary evidence. Counsel for one

No. 88-1953 -4€-

defendant asked permission to examine the

documents. It was revealed that not all de-

fense counsel were given a copy of the prose-

cution's proposed exhibits; instead, the ex-

hibits were delivered to Migdaleck's attorney

to circulate among defense counsel. The court

required the prosecution to provide each defen-

dant with a copy of all the exhibits. Counsel

‘for defendant Ware then inquired if counsel

could, after each day of trial, verify that

each admitted exhibit was used.? The court

said:

I am going to rely on the

United States attorney to

be honest. He always has

been. He always will be.

Outside the presence of the jury, defen-

dants moved for mistrial asserting the court

vouched for the credibility of the prosecution.

The court denied the motion.

As the Supreme Court said in Glasser v.

3 Counsel for defendant Ware explained at

oral argument that "used'' meant "received."

No. 88-1953 -47-

United States, 315 U.S. 60 (1942), reh.

~ denied, 315 U.S. 827 (1942):

Perhaps the court did not

attain at all times that thorough-

doing impartiality which is the

ideal, but our examination of

the record as a whole leads to the

conclusion that the substantial

faghts of the petitioners were not

affected. The trial was long and

the incidents relied on by peti-

tioners few. We must guard against

the magnification on appeal of in-

stances which were of little impor-

tance in their setting.

id. at 83. (Citations omitted; emphasis

added. )

This was an isolated comment in a rather

lengthy trial and the comment was made during

a general discussion regarding the identifica-

tion and introduction of the prosecution's ex-

hibits. Moreover, the court, in its instruc-

tions to the jury, favorably commented upon

the professionalism of every attorney. We do

not think the cited comment by the trial court

denied defendants a fair trial.

We AFFIRM.