Petition for Writ of Certiorari — Sidney v. United States

Attorneys for Petitromers

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Judgment and Opinion of the Court Below oo... 2

_ Reasons Relied on -For the Allowance of the Writ... 16

1. The evidence was insufficient to prove a single

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il. ‘The trial court erred in — eae

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end dering trial — &

III. — — —

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Appendices: 8

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PAGE

Wan. United States, 414 F.2d 1018 (8th Cir, 1968) 28

Helton v. United States, 221 F.2d 338 (Sth Cir. 1955) 33

Kotteakos v. United States, 326 U.S. 750 (1946) 20, 21

Maguire v. United States, 396 F.2d 330 (7th Cir, 1968) 2

Melirey v. United States, 164 U.S. 76 (1806) 27

Penny v. United States, 154 F 629 (4th Cir, 1986). 22

Putnam v. United States, 337 F.2d 313 (10th Cir.) 22

Schaffer v. United States, 362 U.S. 311 (1900) 20

Ward v. United States, 289 F.2d 877 (D.C. Cir. 1961) 25

Williameon v. United States, 310 F „

P eee 28

United States +. Banker, 395 F.2d 681 (2nd Cir. 1968) 18

United States v. Cashin, 281 F.2d 669 (2nd Gr. 1960) 22

United States v. Johnson, 323 U.S. 273 (1944) 22

United States v. Varelli, 407 F.2d 735 (7th Cir, 1969) 18

Rule A Fed. . Cr. Proc.

Rule 14, Fed. R. Cr. Proc.

2

, | f ;

te November 4, 1870 the Court of Appeals for the

FVth Ciree® Sled an apinion and entered an order af-

firming the jedgment of Ver District Overt, The opinion

ie Ret reported bat is appended hereto as Appendix A.

2 —— of a bogus overall conspiracy

count prejedice the defendant, Sidncy im his. attempt to

c

ter trial?

2: Did the ese of a ‘tages overall conspiracy count

2222222222

statutory misjoinder ! : :

4 . prupeliond beseune the eoprt

allowed into eviderce testimony of other crimes not al-

_feged im the indictment, although this testimony did not

an within any cureption to the rule that evidence of

other crimes is inadmissible!

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The defendant Ayres was found guilty on the con-

spiracy count and counts five and seven, the two substan-

tive counts in which he was named. He also received

coneurrent five year sentences under Section 4208(a)(2).

The defendant Clarence Lewis was found not guilty on

the conspiracy count but was found guilty on the two

substantive counts in which he was named, counts six and

seven. He received a suspended sentence. |

The defendant Mary Lewis was found guilty on the con-

spiracy count and on counts two and six, the two sub-

stantive counts in which she was named. She also re-

ceived concurrent five year sentences under Section 4208

(a)(2).

8

GOVERNMENT EVIDENCE

Testimony of Charles T. Maning

Un August 26, 1967, Mr. Maning, of Hollandale, Mis-

sissippi, bought a 1961 Chevrolet, two door hardtop from

the defendant Jack Carson as evidence by a bill of sale,

Governinent Exhibit No. 2. The bill of sale bears the

vehicle identification number 10727W150427 (Tr. 33-39).

The purchase price was $650 (Tr. 39). | a

The day after the F. B. I. visited Mr. Maning, Jack Car-

son brought Mr. Maning a 1961 Pontiac to replace the

Chevrolet (Tr. 41-42).

Testimony of David O. Peres

In January, 1967, Mr. Perez, who lives in Chicago, owned

a 1961 Chevrolet Corvair (Tr. 64-65). Government Ex-

hibit No. 3 is an insurance company document bearing

vehicle identification number 10727W150427 (Tr. 67-68).

The car was wrecked in January, 1967 and Perez gave

it to his friend, Guadalupe Sanchez (Tr. 69).

7 Testimony of Guadalupe Sanchez

In January or February, 1967, Mr. Sanchez, who lives

in Chieago, was asked by his friend, David Perez, to sell

Perez’ wrecked ear, a 1961 Chevrolet (Tr. 89). Mr. Sanchez

sold the car to a man who gave him $15. Sanchez gave

the man the title already signed by Perez (Tr. 90).

Sanchez thinks that the man to whom he sold the car

lived at 2018 West Flournoy. The man was colored (Tr.

91). He never saw the car after he was paid and does

not know who towed it away (Tr. 105).

Testimony of Joseph Napa .

Mr. Nalepa is a Chicago police officer who has known .

the defendant Bén Sidney for three years ¢Tr. 107). Mr.

Sidney lives at 2810 West Flournoy in Chicago (Tr. 108).

Testimony © John Neeley

F. B. L. agent Neeley has been assigned to Greenville,

Mississippi side August, 1967. In December of that year

he examined a two door 1961 Chevrolet Impala (Tr. 125).

Government Exhibit No, 5 is the V.LN. plate taken off the

ear and bears the number 10727W 150427. Government Ex-

hibit No. 6 is a hidden identification plate taken from the

ear and bears the number 118373229016 (Tr. 130).

Testimony of Andrew Williams

Un November 4, 1966, Mr. Williams, who resides in Hol-

landale; Mississippi, bought a 1964 Chevrolet from the

defendant Charlie Ayers (Tr. 193-194). Government Ex-

hibit 9 is the bill of sale received by Williams (Tr. 195-

196). Government Exhibit No. 10 is the receipt for pur-

chase of the local tag (Tr. 196-199).

Testimony of John Wesley Johnson

In October, 1968, Johnson, a resident of Hollandale, Mis-

sissippi, bought a 1960 two-door hardtop Chevrolet Impala

from Robert MeGee (Tr. 223). He paid $100 for the car,

which was parked off ofsthe street. MeGee told Johnson

he had a wreck coming down and wanted to sell the ear

(Tr. 224).

Government Exhibit No. 12 is the tag receipt for the

ear, dated October 8, 1966, and bears the wehicle identitica-

tion number 018373114117 (Tr. 226-228).

„

8 F 7 7

testified he had never seen him before in his life (Tr.

229). Robert McGee was not one of the defendants (Tr.

230). :

Jack Carson had nothing to do with the sale of the car

that Johnson bought (Tr. 241-242). At the time Johnson

purchased the car from Metice he did not know Ben Sidney

(Tr. 243), He’ did not soe Bon Sidney on the day he

bought the car (Tr. 244).

Testimony of Robert Motes

Robert en o vesident of nen docs uct know

Ben Sydney (Tr. 246-247). In 1966 he owned a 1960 Chev-

rolet, two-door hardtop. His garage caught fire and the

ear burned. A man came and took it away. He signed the

title over to the man, whom he does not know and éannot

recognize (Tr. 247). Government Exhibit No. 13 is the

title eard of the license plate for the Chevrolet and bears

the vehicle identifieation number 01837114117 (Tr. 249.

251).

Testimony of Gladys McCaskill

Gladys MeUaskill is deputy clerk for the Sheriff of

Washington County, Mississippi (Tr. 275). Government

Exhibit No. 16 is a tag receipt issued to Mary Lewis,

Hollandale, Mississippi for a 1963 Oldsmobile (Tr. 280),

and bears the vehicle identification number 636M04236. The

document reflects that the car was obtained from Ralph

Mitehell, Vieksburg, Mississippi, on November 5, 1966 (Tr.

281).

Further Testimony of Agent Meslley

On November 49, 1967, Agent Neeley examined a 1964

Oldsmobile in the presence of the defendants Mary and

Clarence Lewis, in front of the Head Start Center in Hol-

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serewed to the left deor post (Tr. 286-287). ‘Government

Exhibit No. 17 is that plate and bears the number 636M0-

. 4236 (Tr. 288-289).

On December 21, 1967, Agent Neeley examined a hidden |

number on the frame. That number was 884M164787. (Tr.

290). Government Exhibit No. 18 is the inked copy of the

numbers appearing on the fraine (Tr. 292).

Testimony of Jake B. Ayres

Mr. Ayres lives in Glen Allen, Mississippi and is a

brother of the defendant Charles Ayres. In June, 1967

he bought a 1966 Air Chevrolet. Government Exhibit

20 is the bill ofsale and bears the vehicle identification

number 156356) 1206669 (Tr. 309-312).

Mr. Ayres does not know nor did he ever meet Ben

Sidney (Tr. 330). ä

Testimony of Richard Hamilten

Mr. Hamilton, who lives in Hollandale, bought a 1960

Chevrolet from the defendants Ayres and Mary Lewis (Tr.

351-352). Mary Lewis gave him the bill of sale (Tr. 353).

Hamilton got a tag for the car two days after he bought

it (Tr. 353-354). |

lle does not know Ben Sidney (Tr. 359).

Government Exhibit 22 is a car tag receipt issued to

Richard Hamilton for a 1960 Chevrolet Impala and bears

the vehicle identification number 01637F'165282 (Tr. 366-

357). It farther reflects that Hamilton purchased the car

from Clarence Lewis Motors on September 2, 1967 and

the tag was issued September 6, 1967 (Tr. 367).

2

.

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ernment Exhibit 24 is the plate and bears the number

01637F 165282 (Tr. 377). Gevernment Exhibit 25 is a lift

of a hidden number on the car (Tr. 379) and bears the

number 603231063 (Tr. 383). ;

Testimony of Maggie Pennington l

In June, 1968, Mrs. Pennington, who lives in Hollandale,

bought a 1967 Impala Chevrolet (Tr. 420-421). Govern-

ment Exhibit 28 is the bill of sale and carries the date

Juné 28 (Tr. 422). Mary Lewis and Ben Sidney sold her

the car (Tr. 422-423). She did not know the defendant

Ben Sidney at the time of the sale (Tr. 423).

Mrs. Lewis recommended the ear to her (Tr. 424). Gov

ernment Exhibit 28 is the bill of sale for the car (Tr. 426).

The serial number on the document is 164877V12135A (Tr.

427). Both Mrs. Lewis and Ben Sidney talked her into

buying ‘the car. She gave them $1,500 and the price was

$2,900 (Tr. 428). |

„ ˙¹ qm W U ey sn tee

named R. L. Mitehell sold her the car (Tr. 439). She has

lived in Hollandale for fifteen years and worked as a

waitress in the Snowball Cafe in HoMadaile for fifteen

years (Tr. 443). Prior to June, 1967, she did not know

Ben Sidney, but since then has seen him a few times (Tr.

444)

The first time she learned that R. L. Mitchell was Ben

Sidney was when she saw it in the newspaper (Tr. 446).

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e

Further Testimony of Agent Neelley

On December 5, 1967, he examined Maggie Penningten’s

1967 Chevrolet and determined its vehicle identification

number to be 164787 U121354 (Tr. 468).

Testimony of Darnell Shorter

In 1966 Mr. Shorter lived in Hollandale, Mississippi.

He bought a 1960 Buick Invicta and bought the tag a week

later (Tr. 474-475). He went to Jack Carson let with

Vernell Call beeause he heard there was a car for sale

near the lot (Tr. 477).

He paid a man named Ralph $300 (Tr. 478). Shorter

saw the defendant at the lot that morning but Sidney had

nothing to do with the sale of the car (Tr. 519-520).

Ralph was short with light skin (Tr. 522). Ralph said

that if Shorter could: get the money, Ralph would sell him

the car (Tr. 523). :

Shorter gave the money to Ben. Ralph wrote out the

bill of sale (Tr. 626). John Wesley Johnson bought a

Chevrolet (Tr. 527).

The car Shorter bought belonged to Ralph and was sold

to Shorter by Ralph (Tr. 537-538).

Testimony of A. B. Derrick

Mr. Derrick is deputy sheriff of Sharkey County, Mis-

sissippi (Tr. 541). Government Exhibit 31 is a tag receipt

for a 1960 Buick and bears vehicle identification number

651064361 (Tr. 545). Government Exhibit 32 is a tag re-

ceipt for a 1961 Chevrolet and bears vehicle identifieation

number 100727W150427 (Tr. 547).

Testimony of Merman Robert Ashley

Mr. Ashley is an adjuster for Motor Insurance Corp.,

Gary, Indiana. Government Exhibit 36 is a bill of sale for

a 1967 Chevrolet owned by Leslie Stephens and bearing

vehicle identification number 164877U 121354 (Tr. 568).

Purther Testimeny of A.B. Derrick

In April, 1967, he picked up a 1960 Buick from Annie

Shorter, Darnell Shorter’s sister, and brought it to Osch-

ner’s Garage in Rolling Fork, Mississippi (Tr. 571-572).

Testimony of Berton DeZarn

Mr. DeZarn is a Special Agent for the FBL in May,

1968 (sic) he examined a 1960 blue Invicta at Usehner’s °

garage in Rolling Fork and the seeret vehicle identification

number was 661067351 (Tr. 580-581).

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Testimony of Rebert Thomas, Jr. 3

In 1966, Mr. Thomas, who lived ip Hollandale, bought a

1959 Ford from the defendant Ben Sidney. The car cost

. 0688 and was paid for by Viegs L. Gandesfend, Rr. Thom-

as’ boss (Tr. 595-597).

Testimony of Virgil Sanderford

Mr. Sanderford employed Robert Thomas, Jr. on his

Hollandale plantation. In September, 1966, he bought a

ear for Thomas from Ben Sidney (Tr. 610-612). Mr.

Sanderford and Ben Sidney were raised together, their

families living close to each other (Tr. 612).

Sanderford paid Sidney $325. He bought u tag for the

eur. Sidney produced an Illinois title for the ear =.

613-614).

. 12

Farther Testimony of Gladys McCaskill

Government Exhibit 37 is a tag receipt issued to Robert

Thomas, Jr. for a 1959 Ford and bears the vehicle iden-

tifieation number A9AG155671 (Tr. 625).

Further Testimony of Agent Meslley

Un January 24, 1969, Agent Neelley examined Robert

Thomas, Ir. s 1959 Ford and found the public vehicle

identification number to be A9AG155671 (Tr. 628). Gov-

ernment Exhibit 38 is the identification plate (Tr. 630).

The confidential number of the car is C9GS165161 (Tr.

632).

Testimony of James Busith

Mr. Gmith is a Chieage detestive. On October 19, 1967,

he saw Ben Sidney getting into a 1965 Pontiac at 2819

West Flournoy Street in Chicago (Tr. 634-636). The car

bore Mississippi license plate W14544 (Tr. 637). The

vehicle identification number was 262395P254576 (Tr. 663).

‘ Further Testimony of Gladys MoCnskill

Government Exhibit 40 is a 1967 tag receipt issued to

Clarence Lewis, Sr. bearing vehicle identification number

2522375X134052 (Tr. 685).

Further Testimony of Agent. Meelley

On April 12, 1968, Agent Neelley examined a 1965 Pon-

tine at Hamilton, Mississippi. The vehicle identification

number was 252375X134052. (Tr. 688). Government Ex-

hibits 41, 43 and 44 are pictures of the barn where the ear

was located (Tr. 706).

10

N 410

Lieutenant McCann is assigned to the auto theft section

of the Chicago Police Department (Tr. 712). On October

20, 1969 he saw both Mary Lewis and Ben Sidney. at the

Area 4 headquarters, auto theft section (Tr. 716).

Mrs. Lewis came to the headquarters because license

plates registered to her husband were found on un automo-

bile in Mr. Sidney’s possession. Mrs. Lewis described

the car as a 1965 two-door Pontiac (Tr. 715).

Mrs. Lewis told MeCann that she had come to Chi-

cago in the car, it was running rough” and she gave it

to Mr. Sidney for a tune-up. The police had taken a four.

door Pontiac into eustedy (Tr. 719).

Ufficer Nalepa accompanied Mrs. Lewis to the auto pound

‘to identify her ear. After Mrs. Lewis had looked at the

car Lieutenant MeCann called Clarence Lewis (Tr. 720).

MeCann asked Clarence Lewis to deseribe the ear his wife

had with her in Chieago. He described a four-door 1965

Pontiac. Mrs. Lewis then spoke to Clarence Lewis on

the telephone and then Clarence Lewis told MeCann he

might be mistaken whether it was a two-door or four-

door (Tr. 721-722).

.

the call was made to Clarehee Lewis. Sidney inserted his

eS ͤ *

did not refute him (Tr. 722-723). 3

er Leute un des that ds hat arrived a Chi

cago in a two-door ear and had given the ear to a man

named Bishop who was to give the ear to Ben Sidney (Tr.

725). She went to the pound and deseribed the car being

held there as not the eur she had driven or given to Bishop

to give Sidney for a tuné-up (Tr. 726).

*

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e the investigation (Tr. 731).

‘Purther Testimony of Officer Nalepa

Un Ueteber 20, 1967 Officer Nalepa took Mary Lewis

to the auto pound. She told Nalepa the ear she owned was

two-door and had been involved im an accident on the

Tight side. She viewed ‘a four door 1965 Pontiac. and

said ‘*This is mot my er.“ (Tr. 735).

Testimony of H. G. Renfro

Mr. Renfro is with the Motor Vehicle Inepection Bureau

of the Mississippi Department of Public Safety. On June

10, 1967 a license tag-was issued to Charles Ayres (Tr. 738-

739). ;

‘Purther Testimony cf Agent Neeliey (\

Un January 24, 1968, Agent Neelley examined a 1959

Ford in the possession of Robert Thomas, Jr. The true

vehicle identification number was (965165161 (Tr. 761-

709.

\

Testimony of Perthina Johnson abt

In 1966 Mrs. Johnson, who lives in Delta City, bought \

a 1959 Buick from Jack Carson. A week later she bought _

a license tag (Tr. 772). She paid $300 (Tr. 773). She

dose ust Gusw Gen Giteay (Se. 779).

Further Testimony of Agent Neelley

— 1968 Ageut Neelley examined Perthina

— —Fobuson’s_car. Government Exhibit 49 is the plate that

was serewed to the left door post, it bears the vehicle iden-

tifieation number 471001284 (Tr. 785-787).—The hidden

number was 471010056 (Tr. 786).

vr

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3

ur. Smithart owns a used caf lot in Indianola, Missis-

sippi (Tr, 806). In 1967 he bought a 1962 Chevrolet, ve-

hicle identification number 215693153906 (Tr. 807) from

Charlie Ayres. Sa Sy Gates wo Sie

Brown in Indianola (Tr. 600.

; Over a period of two years Charlie Ayres sold twenty to

thirty cars off of Smithart’s lot. He sold ears for Sith.

rte father: (Tr. 811).

Porther Testimony 2. —

———— 6, 1968, Agsat Nesey examined a: 1980.

Chevrolet in the possession of Willie Brown. The plate

taken off the left door post is Government Exhibit 52 and

_ bears the vehicle identification number 21569J153906. The

hidden number is 5230285 (Tr. 814-616). -

_ Further Testimony of Gladys MoCeskil ,

Government Exhibit 53 is = 1967 tag. receipt ispaed to

Perthina Johnson for a 1959 Buick. It bears the vehicle

- jdentifieation number 1001284. It was purchased from

. 1967 (Tr. 25.

ee

A

a

THE EVIDENCE WAS INSUFFICIENT TO PROVE A

CONSPIRACY AS ALLEGED IN COUNT ONE OF

THE INDICTMENT.

Defendants’ position is quite simple. The government

never proved u single overall conspiracy as alleged in

count one of the conspiracy. If anything was proved, it

was the existence of separate conspiracies with respect to

individual cars—some mentioned in substantive counts of

the indictment, some not mentioned anywhere in the in-

dictment.

And, because the indictment merely recited for the overt

acts of the conspiracy thé same cars and the same acts

alleged in the substantive counts, the prosecution was able

to show that the overt acts alleged in the conspiracy count

were committed. But proof of the overt acts never

coalesced to prove an overall conspiracy as alleged,

A reading of the conspiracy count will prove defendant-

appellants’ point.“ The first paragraph of the conspiracy

count (count one) is written in the words of the statutes —

involved. The nine overt acts set forth in the conspiracy

count parallel the following eight substantive counts,

There are no acts alleged in count one, nor was any

evidence introduced at the trial, that would lead one to the

conclusion that an overall conspiracy existed. The overt

The indictment is set forth as Appendix B.

17

ucts alleged to be conspiratorial are, in fact, the iso-

lated acts that constitute the substantive counts.

For example, count Five charges that defendant Charles

Ayres sold a 1964 Chevrolet, knowing that it was stolen.

Overt act six of the conspiracy count alleges the same

transaction. The only witnesses who testified with re-

spect to the car named in the count and in the overt act

were the original owner, Louis Gortana, who said it was

stolen (Tr. 185-188) and Andrew Williams, who bought

the car from defendant Ayres (Tr. 196-199). Nothing

about the theft or resale of the car by Ayres links the

car or, indeed, Ayres to any of the other defendants.

The same is true of count seven which is mirrored in

overt act eight. Both relate to a 1960 Chevrolet allegedly

sold by defendant Ayres and Clarence Lewis with knowl-

edge that it was stolen. Four witnesses testified regard-

ing this car—William Givens, from whom the car was

stolen (Tr. 343-347); Richard Hamilton who bought the

ear from defendants,* Charlie Ayres and Mary Lewis

(Tr. 350-354) ; Gladys McCaskill, who issued the local tag

receipt to Hamilton (Tr. 366-367); and FBI Agent John

Neelley, who examined the car and testified as to the false

and true vehicle identification numbers that he found (Tr.

377-383),

All of the other substantive acts in the indictment fol-

low the same pattern with one exception. And that is

that Count Nine—the single substantive count charging

Ben Sidney—is not included as an overt act. The evi-

dence taken in a light most favorable to the government

shows that Ben Sidney and Ben Sidney atone was involved

in the sale of that particular ear.

* Hamilton jestified he did not know Ben Sidney.

18

The defendant Sidney was named in one overt act in

the indietment—overt net number nine. But no evidence

was introduced with respect to that aliegation—the sale

of a stolen 1960 Chevrolet. The substantive count that

mirrors overt act nine is count eight and that was dis-

missed by the government (Tr. 836-837).

Both the Second and Seventh Cireuits have been faced

with the contention raised here. In Uwmited States v.

Branker, 395 F. 2d 881 (2nd Cir., 1968), the court reversed —

the convictions of four defendants because the government

abused its right to join all defendants for trial through

the use of a conspiracy count. As Judge Hayes said. at

p. 889:

„Since the testimony of Mrs. Neely provided no sur-

prises, counsel for the government must surely have

known in advance of trial that the chances of prov-

ing the conspiracy charged in the indictment were

very slim. Yet the conspirncy count provided the

only justification for the joinder of the eight de-

fendants. If the prejudice of joint trial is to be elimi-

nated without the waste of time and energy which re-

sults from a joinder which ix declared improper in

the midst of trial, or, as here, on appeal, we must rely

on the responsibility and good judgment of the prose-

eutors.“

In United States v. Varelli, 407 F. 2d 735 (7th Cir, 1969),

the court reversed the convictions of all thirteen defen-

dants because, although the indictment alleged one con-

spiracy to rob interstate shipments, the proof showed two

conspiracies—one related to the hi-jacking of a single ship-

ment of Polaroid cameras, and another related to the theft

of three silver shipments.

19

In analyzing the conformity of the proof to the allega-

tion in the indietment of one overall 3 Judge

Korner stated at p. 7422

„The distinction must be made between separate con-

spiracies, where certain. parties are common to all

and one overall continuing conspiracy with various

parties joining and terminating their relationship at

different times. Various people knowingly joining

together in furtherance of u common design or pur-

pose constitute a single conspiracy. While the con-

spiracy may have a small group of core conspirators,

other parties who knowingly participate with these

core conspirators and others to achieve a common goal

- be members of an overall conspiracy.

In

essence, the question ‘is what is the nature of the

agreement, If there is one overall agreement among

the various parties to perform different funetions in

order to carry out the objectives of the conspiracy,

the agreement among all the parties constitutes a

single conspiracy. However, where various defen-

dants separately conspired with a common conspira-

tor to obtain fraudulent loans from un ageney of the

United States, the government eonceded that there

were several conspiracies since there was no over-

all goal or common. purpose. Kotteakos v. United

States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557

(1946). The Supreme Court in Blumenthal v. United ~ |

States, 332 U.S, 539, 68 8. ('t. 248, 92 L. Ed. 154 (1947),

where the court found one overall conspiracy, com-

mented on Kotteakos:

‘The case therefore is very different from the

facts admitted to exist in the Kotteakos case,

Apart from the much larger number of agree-

ments there involved, no two of those agreements

were tied together as stages in the formation of

a larger all-inclusive combination, all directed to

achieving a single unlawful end or result, On the

contrary each separate agreement had its own

distinct, illegal end. Each loan was an end in it-

20

self, separate from all * although all were

alike im having similar illegal objects, Except

for Brown, the common figure, no ‘conspira-

tor was interested in whether any loan exeept his

own went through. And none aided in any way,

by agreement or otherwise, in procuring another's

loan. The conspiracies therefore were distinet

and disconnected, not parts of a larger general

scheme, both in the phase of agreement with Brown

and also in the absence of any aid given: to

others as well as in specific object and result,

There was no drawing of all together in a single,

over-all, comprehensive plan, 332 U.S, at 558, 68

St. Ct. at 257) [Emphasis ndded.]“

Any analysis of conspiracy law must ultimately look

to the Supreme Court's decision in Kotteakus v, United

States, 328 U.S. 750 (1946), In that ease the government

charged one conspiracy but admitted proving not one con-

piracy as alleged but eight different and individual con-

spiracies, The court stated at p. 758

„The question we have to determine is whether the

same ruling [prejudice sufficient to reverse] may be

extended to a situation in which one conspiraey only

is charged and at least eight having separate, though

similar objects, are made-out by the evidenee, if be-

lieved; and in which the more numerous partiei-

pants in the different schemes were, on the whole, ex-

cept for one, different persons who did not know or

have anything to do with one another.“

The eriterin to be applied in such a situution—where

the conspiragy count is improperly brought or insufficient-

ly proved—is worth citing at great length:

„In criminal causes that outeome is conviction, This

is different, or may be, from guilt in fact. It is guilt |

in law, established by the judgment of laymen, And

the question is, not were they right in their judgment,

regardles« of what error or its effeet upon the vor-

dict, It is rather what effect the error had or reason-

done wrong on i

own, in the total setting. (f. United States v. Socony-

Vacuum Oil Co. supra, (310 U.S. at 239, 242, 84 L.Ed.

1176, 1178, 60 8. Ct. 811); Bollenbach v. United States,

supra (326 U.S. 607, ante, 350, 66 8. Ct. 402).

This must take account of what the error meant to

them, not singled out and standing alone, put in re-

for how others might react and not be regarded gen-

erally as acting without reason. This is the import-

ant difference, but one easy to ignore when the setise

of guilt comes strongly from the reeord.

If, when all is said and done, the conviction is sure

that the error did not influence the jury, or had but

very slight effect, the verdict and the judgment should

stand, except perhaps where the departure is from a

constitutional norm or a specific command of Con-

gress, Bruno v, United States, supra (308 US at 294,

84 L ed 260, 60 8 Ct. 198). But if one cannot say, with

fair assurance, after pondering all that happened with-

out stripping the erroneous action from the whole, that

the judgment was not substantially swayed by the er-

ror, it is impossible to conclude that substantial rights

were not affected. The inquiry cannot be merely

whether there was enough to support the result, apart

from the phase affected by the error. It is rather, even

40, whether the error itself had substantial influence.

If so, or if one is left in grave doubt, the convietion

cannot stand.“ Kotteakus v. United States, 328 US

750, 90 I. ed 1557, at 1566-67,

The subsequent errors alleged in this brief all flow from

the government's tactic of using the conspiracy count as

u vehicle to impermissibly join the defendant» and then

prejudice their defense through the introduction of other

crimes not alleged in the indietment.

22

THE COURT ERRED IN DENYING THE DEFEN-

DANT SIDNEY'S MOTIONS FOR A SEVERANCE,

, MADE PRIOR TO TRIAL AND DURING TRIAL.

From the outset, because of the bogus conspirary count,

the defendant Sidney was stymied in his efforts to obtain

u severance,

In a pretrial motion to extend the time in whieh the

defendant could file a motion for relief from prejudicial

joinder, the defendant pointed out that the defendant was

named in only two of the eight substantive counts (one uf

these two counts was dismissed before the ease went to

the jury). In this motion defendant Sidney pointed out

that were it not for the conspiracy count he would be

entitled to mandatory relief under Rule 8 of the Federal

Rules of Criminal Procedure because of statutorily im-

proper joinder or under Rule 14 of the Federal Rules of

Criminal Procedure because of prejudice joinder.

In addition, since both cars were allegedly stolen in

Illinois, the defendant may have been entitled to relief

from going to trial in a district other than in which he

and his witnesses resided pursuant to Rule 21(b) of the

Federal Rules of Criminal Procedure (transfer for the

convenience of witnesses and in the interests of justice)

or under Title 18, Section 3237(a) (offenses begun in one

district and completed in another may be tried in either

district).

That this is an important right, entitled to full considera-

tion and applicable to the instant case, has been stressed

hy seveFal courts, United States v. Johnson, 323 U.S, 273,

275 (1944); United States v. Cashin, 281 F.2d 669 (2nd

Cir, 1960); Putnam v. United States, 337 F.2d 313, 317

(10th Cir.); Penny v. United States, 154 F.2d 629 (4th

Cir, 1946); Maguire v: United States, 396 F.2d 327, 330

(7th Cir, 1968). )

Immediately prior to trial, counsel for the defendant

was still attempting to learn whether the conspiraey count

was genuine; he d to the court: ä

By Mr. W. 8

Had there been no conspiracy, these counts, each,

with respect to different cars could not possibly be

tried together. We have a conspiracy count, Your

Honor. I have made n motion for a severance which

may not rise beeause of ‘the conspiracy count, but if

the conspiracy is not proven, it will be within Your

Honor's discretion to grant a severance as far as

adverse interest.. . I don't want the record to reflect

that Mr. Sidney is waiving any of his ts

— for u sev .

11-12), 1 f

Shortly thereafter, counsel for the defendant Sidney

tried ngain to alert the court to the impossible situation he

found himself in with respect to the right to a severance

if, as it turned out, the government was just using the

conspiracy count as a means to try all of the defendants

together, The following took pl.ce;

_ By Mr, Werksman ; .

Judge, I would like to know, as Your Honor may

know, there is u conspiracy count in this indictment.

There are also eight substantive counts, Now, I made

u motion as on (sic) n continuance for a severance,

Certain information was supplied to me whieh indi-

eated that one of the substantive counts against my

client wur also an overt net in the couspirney, but we

have really never heard what the contents of the con-

spiracy are, Judge, and I would hope that the govern-

ment would make an opening statement so that at lonst

we'll know where we are going before the jury, It)

seems» to me the jury does not understand what a con-

2

spiracy is. It doesn’t understand that there are also

-. eight substantive counts,/and I don’t think that we

enn intelligently cross-examine witnesses until we know

what the mosaic is, and how these witnesses are sup-

posed to affect the — defendants with respeet

to the substantive counts, they are to

testify with respect to — (interrupted) “

By The Court:

„H you are leading up to the proposition of « opening

statements to the * 1 that what you have in

mind!“

By Mr. werk⸗man:

Ves, sir, Judge.“

By The Court:

„Well, we don’t have them in this court. I mean

opening statements are not a matter of right to the

parties and that practice and procedure has never

heen followed in this court, which we'll not have any

opening statements to the jury. Do you have any

motion on file that I have not acted upont”’

By Mr. Werksman:

only the one, I believe, I made a motion to con-

tinue til the time at which I could file for a severance,

und also which I could file for to have the jurisdietion

of the defendant’Sidney’s trial changed to Chicago.

‘As Your Honor knows, from the Dyer Act violation,

one may be tried in the district where the car comes

‘to rest, and in the distriet where the car is allegedly

stolen. 97 y

By The Court:

Did you ever file that motion?“

By Mr. Werksman:

„ filed a motion to continue to a time which |

could file that, Judge, because I thought we could

learn something about the alleged conspiracy.’’

By The Court:

L. Woll if the motion has not been acted upon, I

will act on it now. The motion will be overruled,

— 2 —

> o oe * 5

25

By Mr. Werkeman: . . i

_ “If your Honor- please, if there will not be any

opening statements, will you instruet ju

what a conspiracy is!“ a

By The Court:

_ “No, sir, not at this time, I will instruct the jury

at the close of the arguments as to all matters of the

law with reference to the ease. 0

„All right.“ (Tr. 17-20), :

So the trial began, The jury had no concept of what it

was going to hear or how to relate what it heard to the

defendants vis-a-vis the substantive counts and vis-a-vis

thy conspiracy count, And the suspicions and fears of the

tense rding the government's intentions regarding

the conspiracy count were justified by subsequent events.

A» a basic premise, the defendants rely-on the following

statement of the law, set forth in Ward v. United States,

289 F. 2d 877, 878 (D. C. Cir. 1961), In feversing the con-

vietion of a defendant named in six vounts of a seven

count nareoties and indictment eonvieted on all of those

six counts, Cireuit Judge Warren Burger stated as follows:

„Rule 8(b) of the Fed, R. Crim. P., 18 U.S. C. A.

provides that ‘two or more defendants may be charged

n the same indietment * jf they are alleged to

have participated in the same act or transaction

Thus joinder under counts 4, 5 and 6 was an to

both 2 nag 2— —

participated jointly in the September 1 transaction.

But the indietment did not allege that the 7th count,

against Lyons, was in any way related to the counts

linking the two defendants, *

„The government contends that Lyons acquittal on

count 7 demonstrates that Ward did not suffer preju-

dice by the joinder, But ‘where multiple defendants

are charged with offenses in no way connected, and

are tried together, are prejudiced by that very

fact, and the trial j has no diseretion to deny

: *

relief.’ In Gram v. United States, 4 Cir., 1959, 272

F. 2d 567, 570. Bee also Schaffer v. United States, 1960,

362 US. 511, 80 S.Ct. 945, 4 I. Kd. 2d 921; MeElroy _

v. United States, 1896, 164 U.S. 76.

See also: Chubct v. United States, 414 F.2d 1018 (Sth

Cir. 1960).

In Schaffer v. United States, 362 U.S. 511 (1960) the

Supreme Court held that defendants, who were properly

joined initially in an ‘indictment charging several sub,

stantive offences and a conspiracy ta vemmit these offeneds,

were not prejudiced by the misjoinder which oceu

when the court dismissed the conspiracy count for fail

of proof at the close of the government's case.

Defendant Sidney claims that without the inclusion of a

conspiracy count joinder of the substantive counts would

have been improper under Rule 8(b) because the sub-

stantive counts relate to individual car theft» all but one

of which he was named in. However, assuming arguendo, a

proper initial joinder, Justice Clark's analysis in Schaffer

applies all the more to the instant case:

The problem remaining ix whether, after dismissal _

of the conspiracy count before submission of the cases

to the jury, a severance should have been ordered

under Rule 14 of the Federal Rules of Criminal Pro-

cedure, This Rule requires a separate trial if it ap-

pears that a defendant or the government is preju-

diced bya joinder of offenses or of defendants in an

indietment or information or by such joinder for trial

together... (p. 514). i

The court than sets out several reasons why the defen-

dant» were not prejudiced although they could not have

heen tried together had there not been a conspiracy count,

eg. the proof was carefully compartinchtalized as to each

petitioner, the instructions were fair, the propriety of the

27

joinder prior to the failure of proof of conspiracy was not

Concluding that Rule 14 applies in such a situation,

giving the trial judge diseretion to grant a severanee when

justice so requires, the court said: 7

„Nor enn we fashion a hard-and-fast formula that,

when a conspiracy count fails, joinder is error as a

matter of law. We do emphasize, however, that, in

stich u situation, the trial judge has a continuing duty

at all stages of the trial to grant u severance if preju-

dice does appear. And where, as here, the charge

which originally justified joinder turns out to lack

tho support of sufficient evidence, a trial judge should

he particularly sensitive to the possibility of such

prejudice,’’ (p. 516),

Unlike the defendants in Schaffer, the defendants in the

instant case suffered severe prejudice in several ways.

First, the court did not instruet the jury that no conspiracy

had been proven. Rather, the jury was instrueted that

it could find a conspiracy and that the acts constituting the”

substantive counts could be used to conviet for that eon

wpiracy, Second, the jury never heard an opening —

ment that would have given it some direetion in — ;

all of the evidence. that it heard. Third, the evidence in

the instant case was not easily eompartmentalized or re-

lated to individual counts. Fourth, the evidence was cir-

cumstantial in nature, W and rambling, with no

focus.

. Lastly, in his opinion Justice Clark —— Schaf-

fer from McElroy v. United Siates, 164 U.S. 76 (1908),

stating, at page 516:

„This cane is not like. . McElroy v. United States,

where no count linked all the W and all the

offenses,’’

¢ McElroy — which held that distinet felonies not provable

by the same evidence, and in no sense resulting from the

same series of acts, cannot be consolidated for trial — is

similar to the instant case and Chief Justice Fuller“

analysis merits close attention, Af pages 79-80 he stated:

„The record also discloses that there was no evidence

offered tending to show that there had been or was

a conspiracy between defendants, or them and other

parties, to commit the alleged crimes,

The several charges. in the four indictments were

not against the same persons, nor were they for the

same act or transaction, nor for two or more acts or

transactions connected together; and in our opinion

they were not for two or more acts or transactions of

the same class of crimes or offenses which might be

properly joined, because they were substantive of-

fenses, separate and distinet, complete in themselves

and independent of each other, committed at different

times and not provable by the same evidence.“

The legal principle for which defendants contend has

heen succinetly stated BY the Ninth Circuit in analyzing

Rule 8 and Rule 14 problems in Williamson v. United

States, 310 F.2d 192, 197 (9th Cir., 1962), footnote 16:

„A misapprehension. reflected in the government '

brief should be corrected. Contrary to the goverh-

ment’s assumption, factually unrelated charges against

some defendants could not be joined for trial simply

‘because all of the defendants ... were jointly charged

with conspiracy in Count Three of the indictment.

This is true even though the charges in all counts were

‘of the same or similar character,’ and therefore under

Rule 8(a) might have been joined in an indictment

against a single defendant. Where multiple defendants

are involved, Rule 8(b) requires that each count of

the indictment arise out of ‘the same series of acts or

transactions’ in which all of the defendants ‘have

participated.,’’

2

The government — taking its evidénce at its best — can-

not show that the defendant Sidney participated in geveral

of the counts in which he is not named,

It is worth noting that not only is the participation of

the several defendants in thé instant case fragmented, and

isolated to the individual substantive counts in which they

are named, but the same disconnection is also true of the

crimes alleged in the substantive counts, The dates are

unrelated; the makes of cars are unrelated; the origins

of the thefts are unrelated; the sites from which the cars

were sold are unrelated; each modus operandi by which

either the defendants received or sold the cars is unrelated.

For example, Count Seven charges the defendants Clar-

ence Lewis and Charles Ayres with selling a stolen 1960

Chevrolet in October, 1967 that had been transported from

Indiana while Count Nine charges the defendant Sidney

with selling a stolen 1959 Ford in September, 1966, that

had been transported from Illinois. Certainly this is not

the ‘‘same or similar character’’ that was meant in Rule

S(a).

III.

THE COURT ERRED IN ALLOWING THE GOVERN.

MENT TO INTRODUCE EVIDENCE OF ORIMES

NOT ALLEGED IN THE INDICTMENT.

Of the forty-nine witnesses put on the stand by the

government, twenty testified with respect to five stolen

cars that were not mentioned in the indictment. It was

the defendants’ contention during the trial (1) that they

were not prepared to defend against the allegations regard-

ing these cars; (2) that the introduction of evidence re-

garding these cars confused the jury and unduly preju-

diced the defendants; (3) there was no basis in law for

30

allowing the government to prove crimes not alleged in the

indietment because the actual evidence regarding the cars

did not fall within any exceptions to the rule that proof

of other crimes is not permissible; and (4) the evidence

regarding the cars did not relate to all of the defendants.

The issue arose early in the case, On the second day of

trial the government offered testimony of Francis Bruno

that a 1966 Chevrolet station wagon was stolen from his

company in Chicago on June 20, 1967 (Tr. 306-307) and

testimony of Jake Ayres that he had bought a 1966 Chev-

rolet station wagon rom his brother, Charlie Ayres, and

Mary Lewis on June 22, 1967 (Tr. 309-330).

Defendant Sidney objected to the introduction of this

testimony and moved that it be stricken, pointing out that

no where in the indictment was there any mention of a

1966 Chevrolet station wagon and that he was in no way

connected with the testimony introduced (Tr. 334-335),

When ‘requested by the court to explain why he was

introducing such evidence, the prosecutor said:

„ „ „ we tender the evidence pertaining to this auto-

mobile under the theory that it proves another crime

which shows intent, knowledge, and motive, and with-

in the conspiracy. It is a car proven within the date

alleged in the conspiracy count of the indictment, and

through the testimony of this witness is shown as-

sociation of two of these defendants with this particu-

lar automobile.“ (Tr. 334).

The court had its doubts about allowing in such evidence,

stating:

„So it is foreign, this automobile is completely for-

eign to the allegations of the indietment but, except,

you contend you can go outside of the overt acts and

prove incidents of similar nature existing between

the parties?“ (Tr. 336-337)

$1

The court initially sustained the defendants’ motions

(Tr, 339-340), but then decided to reserve its ruling (Tr.

_ 340-341), Appropriate objects were made whenever testi-

mony was introduced regarding ears not mentioned in the

indictment (Tr, 396, 482, 511, 540, 573, 670, 742, 767). The

trial judge either overruled the motions (Tr. 396, 511, 540,

671, 742, 855) or reserved his ruling (Tr. 578, 768), At

the close of the government's case the defendants moved

for a mistrial (Tr. 837-844) which was overrpled (Tr.

892).

The defendants do not contend that under no circum-

stances may evidence of other stolen cars be introduced

in a prosecution such as the instant one. However, a

perusal of the record will show, conclusively, that the

testimony regarding the five cars not alleged in the indict-

ment had no probative value in proving the existence of

u conspiracy,

The same arguments made by defendants for a sever-

unc and for a finding that no conspiracy as charged in the

indictment was proven, would apply to these five cars

if they had been set forth in the indictment. Each car

relates to less than all of the defendants on trial. No

modus operandi or scheme is proven through these cars.

Testimony regarding them had no legitimate place in the

trial,

The court’s attention ix invited to the testimony regard-

ing a 1959 Buick not set forth in the indictment. Estele

Thompson testified that it was stolen from near his home

in Chicago on December 5, 1966 (Tr. 765-767). Perthina

Johnson bought the car from Jack Carson’s lot in 1967

(Tr. 772-779). Agent Neelley examined the car and de-

termined that the car bore a false vehicle identification

number plate (Tr. 785-788). Gladys McCaskill testified

+ be Deke et

Perthina Johnson bought u local tag for the eur in August,

1967 (Tr. 829-830),

Perthina Johnson does not know Ben Sidney (Tr, 779),

There is absolutely no evidence in the case linking the

defendant Sidney or the defendant Mary Lewis in any way

to that particular car,

The same lack of ‘relevance in apparent with respect to

another car not mentioned in the indictment but about

which the prosecution was allowed to introduce evidence,

Floyd Young owned a 1962 Chevrolet stolen from his resi-

dence in Maywood, Illinois, on January 18, 1967 (Tr. 797-

802). In April, 1967, John Smithart, who. owns a used

car lot in Indianola, Mississippi, bought the ear from

Charlie Ayres and subsequently sold it to Willie Brown in

Indianola (Tr, 806-810), Agent Neelley ‘examined the ear

while it was in the possession of Willie Brown and found

that the car had a false vehicle identification plate on its

door and that the true number matched that of Floyd

Young's car (Tr, 814-816),

When Charlie Ayres took the stand he testified that he

bought this car from a Jimmy Thompson (Tr, 956), No

place in the testimony of Charlie Ayres is the name Ben

Sidney mentioned, There. is absolutely no connection be-

tween Ben Sidney and any aspect of the. theft, interstate

transportation or sale of this car,

The confusion and prejudice genefaled by the govern-

mont 's tactics are apparent. Even the trial judge bo-

came concerned and directed the prosecutor to desist from

introducing evidence of other alleged crimes (Tr. 592-598),

But this came too late, The damage had already been

done, -

„It is hornbook that, absent a requirement of show- |

ing system or intent, evidence of offenses not charged

1

in the indictment is not only inadmissible, but preju-

dicial if admitted, Boyd v. United States, 142 U.S.

450, 12 8. Ct, 292, 35 L.Ed, 1077; Guilbeau v. United

States, 5 Cir,, 288 F. 731.“ Helton v. United States,

221 F.2d 338, 340 (5th Cir, 1955).

The evidence admitted in the instant case did not prove

either system or intent vis-a-vis the conspiracy charge, as

ulleged hy the prosecutor,

The court reversed the convietfon in Helton although

the trial judge ordered the improper evidence stricken

from the record, stating, at page 341:

“But where, as here, the improper evidence was

enleulated to make such an impression on the jury

that no direction from the court, however strong,

can eliminate the prejudice thereby created, the trial

court must declare a mistrial (citing cases),’’

The error in the instant case was doubly compounded

because the judge did not strike the evidence, As in Helton,

the defense offered in the instant case could not possibly

receive a fair evaluation by the jury in light of the ex-

traneous evidence of other crimes offered by the prose-

cution, As the court said in Melton at page 340:

„The defense in this case suggested that the mari-

juana found on the appellant's premises was left there

hy a former roomer, Whatever hope the appellant

had of the jury’s accepting that defense was blighted

by the admission that appellant himself was a mari-

Juana smoker.“

In the instant case whatever hope the defendants had

that the jury would consider their individual explanations

relating to their own acts was blighted by the introduction

of stolen cars not set forth in the indictment, not involving

them at all and not proving in any way the existence of a

conspiracy in which they were allegedly involved,

34

The prosecutor stated that the proof regarding the cars

not alleged in the indictment would show ‘intent, knowl. —

edge and motive“ (Tr. 334), Let him do so now for this

court. :

CONCLUSION

For the foregoing reasons, we pray that the Petition for

Certiorari be granted and that this court either remand

the cause to the Court of Appeals for the Fifth Cireuit

for a consideration of the points set out herein, or that

this court note the errors and make known its rulings

thereon, .

Respectfully submitted,

una M. Werksaman

Juimnus Locus KNonxius

Attorneys for Petitioners

4

APPENDIX A

In The

UNITED STATES COURT OF APPEALS

For The Fifth Cireuit

No, 27961

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHARLES AYRES, MARY LEWIS and BEN SIDNEY,

Defendants-Appellants,

Appeals from the United States District Court for

the Northern District f Mississippi

(November 4, 1970)

Before TUTTLE, BELL, and GOLDBERG,

Cireuit Judges,

BELL, Circuit Judge; This appeal is from the con-

viction of multiple defendants on Dyer Act charges, The

defendants who are appellants here, along with two ad-

ditional defendants, were charged in Count 1 of an in-

dictment with a conspiracy to violate the Dyer Act, 16

USCA, 1 371, 2312 and 2313, by transporting stolen’ cars

in interstate commerce and to receive, conceal, sell and

dispose of the stolen cars, All were charged separately in

other counts with substantive violations of the Act, One

5

1 ORR

Pr — . 7 ]

' App. 2

of the five defendants was acquitted, another was ac-

quitted on the conspiracy count but found guilty on two

substantive counts and did not appeal, The appellants

here were all convicted on the conspiracy count. In ad-

dition, Ayres was convicted on substantive Counts 5 and

7; regio on Count 9; and Mary Lewis on Counts 2 and 6,

This appeal followed and we affirm.

Appellants challenge the sufficiency of the sins to

support their convictions on the conspiracy charge. Then,

assuming the validity of this challenge, Lewis and Sidney

urge that the court erred in denying each a severance,

Axres and Lewis also attack the sufficiency of the evidence

to conviet them of the substantive counts, Lastly, it is

contended that the court erred in ddmitting evidence as to

stolen vehicles not mentioned in the indictment.

The gist of the case for the government, developed

through the testimony of 49 witneesses, was that thir-

teen vehicles were stolen, transported in interstate com-

“merce, and sold, One of the vehicles was not connected

to the defendants as charge! and the appropriate count

‘of the indictment was dismissed, Eleven of the vehicles

were stolen in the Chicago area where Sidney resided and

were sold in the Hollandale, Mississippi area where Ayres

and Lewis resided and from which place Sidney moved to

Chicago, Sidney was in Hollandale in possession of some

of the cars during the period of the alleged conspiracy.

The proof was that the other vehicle was stolen in Mem-

phis and ended up in the possession of Sidney in Chicago.

Sidney was in the business of buying junk cars in

Chicago, stripping them and selling the parts, The evi-

dence direétly connected Sidney with Lewis and Lewis

with Ayres. Mary Lewis was connected with six of

the vehicles, Ayres with five, and Sidney with five. Sid-

ney and Mary Lewis were connected jointly with two of

the vehicles while Mary Lewis and Ayres were jointly

App. 3 |

connected with three. Seven of the twelve vehicles were

sold with fictitious vehicle identification numbers and six

were disposed of within five days after their theft.

The above is by no means all of the evidence from

which a jury might conclude that defendants were en-

gaged in a conspiracy as charged, What we have ro-

cited is sufficient to set out the outline of the conspira-

oy. Taking the evidence in the view most favorable to

the government as we are required to do, Glasser v.

United States, 1942, 315 U.S. 60, 61 8. Ot. 457, 86 L. Ed.

680, we conclude that the evidence was sufficient to support

a finding by the jury of guilt beyond a reasonable doubt a

that a conspiracy existed and that Ayres, Lewis and

Sidney had an identity of interest and a common goél in

the conspiracy. We have carefully reviewed the evidence

and have determined that it was likewise . as to

the respective substantive counts,

There is no merit in Sidney’ i view that the proof es-

_ tablished several separate conspiracies rather than one

overall conspiracy nor in the contention of Ayres that

he was not joined to the conspiracy nor in the position

of Lewis that the proof was insufficient with respect to

her. On proof of knowledge that the vehicles were stolen,

see United States v. Kolsky, 5 Cir., 1970, 423 F.2d 1111,

Next, appellants Sidney and Lewin argue that the lower

court erred in denying various motions for severance,

This argument challenges the original joinder of the de-

tendants under Rule 8(b), Fed. R. Crim, P. They ad-

Rule 8(b): ,

“Two or more defendants may. be charged in the same in-

dietment or information if they are alleged to have par-

ticipated in the same act or transaction or in the same

series of acta or transactions constituting an offense or of-

Tensen. Such defendants may be charged in one or more

counts together or separately and all of the defendants need

not be charged in each count.“

2 App. 4

mit, however, that if the conspiracy charge was proven,

there was no statutory misjoinder under 8(b). As noted

above, the conspiracy charge was amply proven. The

question then becomes whether appellants were preju-

diced by the joinder so as to require a severance under

Rule 14, and this is a matter within the discretion of the

trial judge. See James v. United States, 5 Cir., 1969, 416

F.2d 467. It is apparent that there was no more prejudice

than is usually occasioned in a trial involving multiple

defendants. The district court was at pains to prevent

_ prejudice from the joint trial in carefully instructing the

jury that they should consider the evidence as to each de-

fendant and each count. The resulting jury verdict demon-

strated that the jury followed this instruction, at least

with regard to two of the dfendants and there is nothing

to indicate. that it was disregarded as to the others.

Finally, the contention that it was error to allow the

government to introduce evidence of crimes not alleged

in the indictment is without merit. The government in-

troduced evidence concerning five stolen vehicles which

were not mentioned in the conspiracy count nor in any

of the substantive counts. Each of the five cars was

stolen, transported in interstate commerce, and disposed

of within the dates. alleged in the conspiracy count,

and two or more of the defendants were connected with

each of these cars. The rule is followed in this eir—

cuit that the government is not limited to overt acts

pleaded in proving a conspiracy but may show other

acts of the conspirators occurring during the life of the

conspiracy for the purpose of proving it. Reese v. United

States, 5 Cir., 1965, 353, F.2d 732.

AFFIRMED.

App. 5

APPENDIX B

INDICTMENT

The grand jury charges:

COUNT ONE

That beginning on or about July 20, 1966, and continu-

ing until on or about May 30, 1968, in the Northern Dis-

trict of Mississippi and elsewhere, Charles Ayres, Jack

Carson, Clarence Lewis, Mary Lewis, and Ben Sidney, de-

fendants herein, and other persons to the grand jury un-

known, did wilfully, unlawfully, knowingly, and fraudu-

lently combine, conspire, confederate, and agree together,

with each other, and between and among themselves, to

commit offenses against the United States, in violation of

Section 371, Title 18, United States Code; that is, to

transport stolen automobiles in interstate commerce, know-

ing them to have been stolen, in violation of Section 2312,

Title 18, United States Code, and to receive, conceal, store,

sell and dispose of stolen motor vehicles moving in inter--

state commerce, knowing them to have been stolen, in vio-

lation of Section 2313, Title 18, United States Code; and

having so conspired, combined, and agreed, said conspira-

tors in furtherance of such conspiracy and to’ effect the

objects and purposes thereof, did commit numerous overt

acts within the jurisdiction of this Court and elsewhere,

among which were the following:

(1)

On or about June 28, 1967, Mary Lewis introduced

R. L. Mitchell to Maggie Pennington in Hollandale, Missis-

sippi.

(2)

On or about June 28, 1967, Mary Lewis prepared a fie—

titious bill of sale showing the sale of a 1967 Chevrolet

automobile by R. L. Mitchell to Maggie Pennington.

App. 6

(3)

On or about August 26, 1967, Jack Carson sold a stolen

1967 Chevrolet automobile which had: been transported in

interstate commerce from in or near Whiting, in the State

of Indiana, to the Northern District of Mississippi.

(4)

On or about September 18, 1967, Charles Ayers sold a

stolen 1963 Chevrolet automobile which had moved in in-

terstate commerce from in or near St. Louis, in the State

of Missouri, to the Northern District of Mississippi.

(5)

On or about September 19, 1967, Mary Lewis endorsed

and cashed a personal check which had been given to

Charles Ayers as payment for the sale of the automobile

described in Overt Act (4).

(6)

On or about November 4, 1966, Charles Ayers sold a

stolen 1964 Chevrolet automobile which had moved in in-

terstate commerce from in or near Chicago, in the State of

Illinois, to the Northern District of Mississippi.

(7)

On or about November 5, 1966, Mary Lewis registered

a stolen 1964 Oldsmobile automobile in her name in Wash-

ington County, Mississippi, said automobile having moved

in interstate commerce from in or near Chicago, in the

State of Illinois, to the Northern District of Mississippi.

(8)

On or about October 3, 1967, Clarence Lewis and Charles

Ayres sold a stolen 1960 Chevrolet automobile in tlie

Northern District of Mississippi, which had moved in in-

terstate commerce from in or near Gary, in the State of

Indiana, to the Northern District of Mississippi. |

N App. 7

9)

In the early part of October, 1966, Ben Sidney sold

a stolen 1960 Chevrolet automobile in the Northern Dis-

trict of Mississippi, which had moved in interstate com-

merce from in or near Chicago, in the State of Illinois,

to the Northern District of Mississippi.

All in violation of Section 371, Title 18, United States

Code. |

COUNT TWO

That on or about June 28, 1967, Mary Lewis and R. L.

Mitchell, aided and abetted by each other, sold and dis-

posed of a stolen 1967 Chevrolet automobile in the North-

ern District of Mississippi, moving in interstate commerce

from in or near Chicago, in the State of Illinois, to the

Northern District of Mississippi, knowing the said auto-

mobile to have been stolen; in violation of Sections 2 and

2313, Title 18, United States Code.

COUNT THREE

That on or about August 26, 1967, Jack Carson sold and

disposed of a stolen 1961 Chevrolet automobile in the

Northern District of Mississippi, moving in interstate com-

merce from in or near Whiting, in the State of Indiana, to

the Northern District of Mississippi; in violation of See-

tion 2313, Title 18, United States Code.

COUNT FOUR

That on or about September 18, 1967, Charles Ayres

and Mary Lewis, aided and abetted by each other, sold a

stolen 1963 Chevrolet automobile in the Northern District

of Mississippi, moving in interstate commerce from

in or near St. Louis, in the State of Missouri, to the

Northern District .of Mississippi, knowing said automa-

bile to have been stolen; in violation of Sections 2 and

2312, Title 18, United States Code,

App. 8

COUNT FIVE

That on or about November 4, 1966, Charles Ayres sold

a stolen 1964 Chevrolet automobile in the Northern Dis-

trict of Mississippi, moving in interstate commerce from

in or near Chicago, in the State of Illinois, to the Northern

District of Mississippi, knowing the said automobile to

have been stolen; in violation of Section 2313, Title 18,

United States Code. N

COUNT SIX

That on or about November 5, 1966, Mary Lewis and

Clarence Lewis, aided and abetted by each other, did re-

ceive and conceal a stolen 1964 Oldsmobile automobile in

the Northern District of Mississippi, moving in inter-

state commerce from in or near Chicago, in the State of

Illinois, to the Northern Dirtrict of Mississippi, knowing

the said automobile to have been stolen; in violation of

Section 2 and 2313, Title 18, United States Code,

COUNT SEVEN

That on or about October 3, 1967, Clarence Lewis and

“Charles Ayres, aided and abetted by each other, sold a

stolen 1960 Chevrolet automobile in the Northern District

of Mississippi, moving in interstate commerce from in or

near Gary, in the State pf Indiana, to the Northern Dis-

trict of Mississippi; in violation of Sections 2 and 2313,

Title 18, United States Code,

COUNT BIGHT

That on or about September 20, 1966, Ben Sidney sold

and disposed of a stolen 1960 Chevrolet automobile in the

Northern District of Mississippi, moving in interstate

commerce from in or near Chicago, in the State of Illinois,

to the Northern District of Mississippi, knowing said au—

tomobile to have been stolen; in violation of Section 2318,

Title 18, United States Code,

P tia 8

App. 9

COUNT NINE

That on or about September 25, 1966, Ben Sidney sold

a stolen 1959 Ford automobile in the Northern District of

Mississippi, moving in interstate commerce from in or

near Chicago, in the State of Illinois, to the Northern.Dis-

trict of Mississippi, knowing the said vehicle to have been

stolen; in violation of Section 2313, Title 18, United States

Code.