Under 18 U.S.C. § 2314, three persons named Stracuzza, who
admittedly were the common center of a scheme to transport stolen
goods, were indicted in a single indictment with the four
petitioners for transporting in interstate commerce goods known to
have been stolen and having a value in excess of $5,000. Count 1
charged two of the petitioners and the Stracuzzas with transporting
stolen goods from New York to Pennsylvania; Count 2 charged another
petitioner and the Stracuzzas with transporting stolen goods from
New York to West Virginia; Count 3 charged another petitioner and
the Stracuzzas with transporting stolen goods from New York to
Massachusetts; and Count 4 charged all the defendants with a
conspiracy to commit the substantive offenses. On motion of
petitioners for acquittal at the close of the Government's case,
the court dismissed the conspiracy count for failure of proof; but
it found that no prejudice would result from a joint trial, and
submitted the substantive counts to the jury under careful detailed
instructions. Petitioners were convicted, and the Court of Appeals
affirmed, finding that no prejudice resulted from the joint
trial.
Held: the judgments are affirmed. Pp.
362 U. S.
512-518.
(a) The joinder of all the defendants in the original indictment
was proper under Rule 8(b) of the Federal Rules of Criminal
Procedure; even after dismissal of the conspiracy count, severance
was not required under Rule 14 unless the joinder prejudiced the
defendants; and, on the record, this Court cannot say that both the
trial court and the Court of Appeals erred in finding that
petitioners were not prejudiced by a joint trial. Pp.
362 U. S.
514-517.
(b) Though each individual shipment amounted to less than
$5,000, the trial court did not err in permitting the series of
related shipments to each petitioner to be aggregated in order to
meet the statutory minimum of $5,000, since 18 U.S.C. § 2311
provides
Page 362 U. S. 512
that "the aggregate value of all goods . . . referred to in a
single indictment shall constitute the value thereof." Pp.
362 U. S.
517-518.
(c) The prosecutor's remarks in his summation to the jury were
not prejudicial. P.
362 U. S.
518.
266 F.2d 435, affirmed.
MR. JUSTICE CLARK delivered the opinion of the Court.
Involved here are questions concerning joinder of defendants
under Rule 8(b) of the Federal Rules of Criminal Procedure
[
Footnote 1] and whether
shipments of stolen goods in interstate commerce may be aggregated
as to value in order to meet the statutory minimum of $5,000, under
18 U.S.C. § 2314. [
Footnote
2]
Page 362 U. S. 513
The indictment charged transportation in interstate commerce of
goods known to have been stolen and having a value in excess of
$5,000. In contained three substantive counts. Count 1 charged the
two Schaffers (petitioners in No. 111) and the three Stracuzzas
(defendants below, who either pleaded guilty or had the charges
against them
nolle prossed at trial) with transporting
stolen ladies' and children's wearing apparel from New York to
Pennsylvania. Count 2 charged petitioner Marco and the Stracuzzas
with a similar movement of stolen goods from New York to West
Virginia. Count 3 charged petitioner Karp and the Stracuzzas with
like shipments from New York to Massachusetts. The fourth and final
count of the indictment charged all of these parties with a
conspiracy to commit the substantive offenses charged in the first
three counts. The petitioners here were tried on the indictment
simultaneously in a single trial. On motion of petitioners for
acquittal at the close of the Government's case, the court
dismissed the conspiracy count for failure of proof. This motion
was denied, however, as to the substantive counts, the court
finding that no prejudice would result from the joint trial. Upon
submission of the substantive counts to the jury on a detailed
charge, each petitioner was found guilty, and thereafter fined and
sentenced to prison. The Court of Appeals affirmed the convictions,
likewise finding that no prejudice existed by reason of the joint
trial. 266 F.2d 435. We granted certiorari. 361 U.S. 809.
The allegations of the indictment having met the explicit
provisions of Rule 8(b) as to joinder of defendants, we cannot find
clearly erroneous the findings of the trial court and the Court of
Appeals that no prejudice resulted from the joint trial. As to the
requirements of
Page 362 U. S. 514
value, we hold that the shipments to a single defendant may be
aggregated. The judgments are therefore affirmed.
We first consider the question of joinder of defendants under
Rule 8(b) of the Federal Rules of Criminal Procedure. It is clear
that the initial joinder of the petitioners was permissible under
that Rule, which allows the joinder of defendants
"in the same indictment . . . if they are alleged to have
participated in the same act or transaction or in the same series
of acts or transactions constituting an offense or offenses."
It cannot be denied that the petitioners were so charged in the
indictment. The problem remaining is whether, after dismissal of
the conspiracy count before submission of the cases to the jury, a
severance should have been ordered under Rule 14 [
Footnote 3] of the Federal Rules of Criminal
Procedure. This Rule requires a separate trial if
"it appears that a defendant or the government is prejudiced by
a joinder of offenses or of defendants in an indictment or
information or by such joinder for trial together. . . ."
Under the circumstances here, we think there was no such
prejudice.
It is admitted that the three Stracuzzas were the common center
of the scheme to transport the stolen goods. The four petitioners
here participated in some steps of the transactions in the stolen
goods, although each was involved with separate interstate
shipments. The separate substantive charges of the indictment
employed almost identical language and alleged violations of the
same criminal statute during the same period and in the same
manner. This made proof of the over-all operation
Page 362 U. S. 515
of the scheme competent as to all counts. The variations in the
proof related to the specific shipments proven against each
petitioner. This proof was related to each petitioner separately,
and proven as to each by different witnesses. It included entirely
separate invoices and other exhibits, all of which were first
clearly identified as applying only to a specific petitioner and
were so received and shown to the jury under painstaking
instructions to that effect. In short, the proof was carefully
compartmentalized as to each petitioner. The propriety of the
joinder prior to the failure of proof of conspiracy was not
assailed. [
Footnote 4] When the
Government rested, however, the petitioners filed their motion for
dismissal, and it was sustained as to the conspiracy count. The
petitioners then pressed for acquittal on the remaining counts, and
the court decided that the evidence was sufficient on the
substantive counts. The case was submitted to the jury on each of
these counts, and, under a charge which was characterized by
petitioners' counsel as being "extremely fair." This charge
meticulously set out separately the evidence as to each of the
petitioners and admonished the jury that they were "not to take
into consideration any proof against one defendant and apply it by
inference or otherwise to any other defendant."
Petitioners contend that prejudice would nevertheless be
implicit in a continuation of the joint trial after dismissal of
the conspiracy count. They say that the resulting prejudice could
not be cured by any cautionary instructions, and that therefore the
trial judge was left with no discretion. Petitioners overlook,
however, that the joinder was authorized under Rule 8(b), and that
subsequent severance was controlled by Rule 14, which provides for
separate trials where "it appears that a
Page 362 U. S. 516
defendant . . . is prejudiced . . . by such joinder for trial. .
. ." It appears that not only was no prejudice shown, but both the
trial court and the Court of Appeals affirmatively found that none
was present. We cannot say to the contrary on this record. Nor can
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 such a situation, the trial judge has a
continuing duty at all stages of the trial to grant a severance if
prejudice does appear. And where, as here, the charge which
originally justified joinder turns out to lack the support of
sufficient evidence, a trial judge should be particularly sensitive
to the possibility of such prejudice. However, the petitioners here
not only failed to show any prejudice that would call Rule 14 into
operation, but even failed to request a new trial. Instead, they
relied entirely on their motions for acquittal. Moreover, the judge
was acutely aware of the possibility of prejudice, and was strict
in his charge -- not only as to the testimony the jury was not to
consider, but also as to that evidence which was available in the
consideration of the guilt of each petitioner separately under the
respective substantive counts. The terms of Rule 8(b) having been
met and no prejudice under Rule 14 having been shown, there was no
misjoinder.
This case is not like
United States v. Dietrich,
[
Footnote 5] where a single
count indictment against two defendants charged only a single
conspiracy offense, or
McElroy v. United States, [
Footnote 6] where no count linked all
the defendants and all the offenses. Neither is
Kotteakos v.
United States, [
Footnote
7] on which the petitioners place their chief reliance,
apposite. That case turned on the harmless error rule, and its
application
Page 362 U. S. 517
to a serious variance between the indictment and the proof.
There, the Court found "it highly probable that the error had
substantial and injurious effect." 328 U.S. at
328 U. S. 776.
The dissent agreed that the test of injury resulting from joinder
"depends on the special circumstances of each case,"
id.,
at
328 U. S. 777;
but it reasoned that the possibility was "nonexistent" that
evidence relating to one defendant would be used to convict
another, and declared that the "dangers which petitioners conjure
up are abstract ones."
Id. at
328 U. S. 778.
The harmless error rule, which was the central issue in
Kotteakos, is not even reached in the instant case, since
here, the joinder was proper under Rule 8(b), and no error was
shown.
Petitioners also contend that, since the individual shipments
with which they were connected amounted to less than $5,000 each,
the requirements of the statute as to value were not present.
However, it appeared at the trial that the total merchandise
shipped to each petitioner during the period charged in the several
counts was over $5,000, even though each individual shipment was
less. The trial court permitted the aggregation of the value of
these shipments to meet the statutory limit, [
Footnote 8] and it is this that is claimed to be
error. A sensible reading of the statute properly attributes to
Congress the view that, where the shipments have enough
relationship so that they may properly be charged as a single
offense, their value may be aggregated. The Act defines "value" in
terms of that aggregate. [
Footnote
9] The legislative history makes clear that the value may be
computed on a "series of transactions." [
Footnote 10] It seems plain that the Stracuzzas and
each of the petitioners were engaged in a series of
transactions,
Page 362 U. S. 518
and therefore there is no error on that phase of the case.
[
Footnote 11]
Petitioners in No. 122 further contend that certain of the
prosecutor's remarks in his summation to the jury were improper and
prejudicial. We agree with the treatment of this issue by the Court
of Appeals, and see no need for further elaboration.
The judgments are therefore
Affirmed.
* Together with No. 122,
Karp et al. v. United States,
also on certiorari to the same Court.
[
Footnote 1]
Rule 8(b) provides:
"Two or more defendants may be charged in the same indictment or
information if they are alleged to have participated in the same
act or transaction or in the same series of acts or transactions
constituting an offense or offenses. 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."
[
Footnote 2]
18 U.S.C. § 2314, provides in relevant part:
"Whoever transports in interstate or foreign commerce any goods,
wares, merchandise, securities or money, of the value of $5,000 or
more, knowing the same to have been stolen, converted or taken by
fraud; . . ."
"Shall be fined not more than $10,000 or imprisoned not more
than ten years, or both."
18 U.S.C. § 2311 provides so far as material here:
"'Value' means the face, par, or market value, whichever is the
greatest, and the aggregate value of all goods, wares, and
merchandise, securities, and money referred to in a single
indictment shall constitute the value thereof."
[
Footnote 3]
Rule 14 provides:
"If it appears that a defendant or the government is prejudiced
by a joinder of offenses or of defendants in an indictment or
information or by such joinder for trial together, the court may
order an election or separate trials of counts, grant a severance
of defendants or provide whatever other relief justice
requires."
[
Footnote 4]
A motion of petitioner Karp for a severance on grounds other
than those tendered here was denied.
United States v.
Stracuzza, 158 F. Supp. 552.
[
Footnote 5]
126 F. 664.
[
Footnote 6]
164 U. S. 76
(1896).
[
Footnote 7]
328 U. S. 750
(1946).
[
Footnote 8]
See note 2
supra.
[
Footnote 9]
See note 2
supra.
[
Footnote 10]
H.R.Rep. No. 1462, 73d Cong., 2d Sess., p. 2; H.R.Conf.Rep. No.
1599, 73d Cong., 2d Sess., p. 3.
[
Footnote 11]
This is not a case like
Andrews v. United States, 108
F.2d 511, where aggregation of shipments to a number of individuals
was justified on the theory of a common design among the
recipients. The instant case, unlike
Andrews, involves
aggregation of a number of shipments to a single defendant, and
therefore it was quite unnecessary to justify aggregation on the
theory of common design.
MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE, MR. JUSTICE
BLACK, and MR. JUSTICE BRENNAN concur, dissenting.
The indictment in these cases charged violations of 18 U.S.C. §
2314, for transporting in interstate commerce goods known to have
been stolen [
Footnote 2/1] and
having a value in excess of $5,000. [
Footnote 2/2]
Counts 1, 2, and 3 were substantive counts. Count 1 charged the
two Schaffers, petitioners in No. 111, together with the three
Stracuzzas, with transporting stolen ladies'
Page 362 U. S. 519
and children's wearing apparel from New York to Pennsylvania
between May 15, 1953, and July 27, 1953.
Count 2 charged Marco, one of the petitioners in No. 122, and
the Stracuzzas with a similar movement from New York to West
Virginia from June 11, 1953, to July 27, 1953.
Count 3 charged Karp, the other petitioner in No. 122, with like
shipments from New York to Massachusetts from May 21, 1953, to July
27, 1953.
Count 4 charged all the parties with a conspiracy to commit the
substantive offenses.
Two of the Stracuzzas (who seemed to be the brains behind the
various illegal transactions) pleaded guilty and received suspended
sentences. The indictment against the third Stracuzza was disposed
of
nol. pros. The four present petitioners pleaded not
guilty and were tried simultaneously in a single trial, [
Footnote 2/3] one of the Stracuzzas being
the principal witness for the Government.
At the close of the Government's case, the court dismissed the
conspiracy count [
Footnote 2/4] for
failure of proof. Indeed, it does not appear even arguable that
there was evidence linking all petitioners with each other in one
conspiracy. Over objection, the court continued the joint trial on
the remaining substantive counts, instructing the jury that the
evidence against each defendant was to be considered separately,
the proof against one not to be used against another.
It is clear that, but for the conspiracy count, the joinder of
these petitioners for similar but unrelated crimes would have been
in error. Rule 8(b) of the Federal Rules of Criminal Procedure
allows joinder of defendants in the
Page 362 U. S. 520
same indictment
"if they are alleged to have participated in the same act or
transaction or in the same series of acts or transactions
constituting an offense or offenses. [
Footnote 2/5]"
The Court of Appeals, while conceding that it would have been
clearly erroneous to try petitioners together were it not for the
conspiracy count, concluded that no showing of prejudice had been
established, and that the District Court did not abuse its
discretion in denying separate trials.
I take a different view. I believe that, once the conspiracy
count was dismissed, the court had before it the same problem as
would be presented if the prosecution had sought to try before a
single jury separate indictments against defendants who had been
charged with like crimes, but which were wholly unrelated to each
other.
Rule 8(b) [
Footnote 2/6]
contemplates joinder of defendants in two types of situations --
first, where they participate jointly in one "act or transaction";
or, second, where they participate "in the same serious of acts or
transactions constituting an offense or offenses." These four
petitioners did not participate in one act or transaction, as
evidenced by the fact that the proof of conspiracy utterly failed.
The other acts or transactions charged were not in the same
"series," within the meaning of Rule 8(b).
Mr. Justice Van Devanter, when circuit judge, in
United
States v. Dietrich, 126 F. 664, 670, said:
"Much can be said in support of a practice which, subject to a
discretion invested in the court to enable
Page 362 U. S. 521
it to do justice between the government and the accused, permits
two or more defendants to be in separate counts of the same
indictment severally charged with distinct and several offenses of
the same class and grade, and subject to the same punishment, where
the offenses appear to have been committed at the same time and
place and to form parts of the same transaction. Under such
circumstances, the proof in respect to one offense would almost
necessarily throw light upon the other or others, and the
connection between them would frequently be so close that it would
be difficult or impossible to separate the proof of one from the
proof of the other or others."
McElroy v. United States, 164 U. S.
76, decided long before the present Rules, held it error
to consolidate four indictments charging unrelated offenses (arson
and assault with intent to kill) where six people were named in
three of the indictments and only three of the six in the remaining
one. The Court said the question of joinder or severance did not
rest "in mere discretion"; that, under those circumstances joinder,
was error as a matter of law:
"[S]uch joinder cannot be sustained where the parties are not
the same, and where the offenses are in nowise parts of the same
transaction, and must depend upon evidence of a different state of
facts as to each or some of them. It cannot be said in such case
that all the defendants may not have been embarrassed and
prejudiced in their defense, or that the attention of the jury may
not have been distracted to their injury in passing upon distinct
and independent transactions."
Id. at
164 U. S. 81.
I think this is the sound rule, and consistent with what Mr.
Justice Van Devanter said in the
Dietrich case. There must
somehow be a nexus between the several
Page 362 U. S. 522
transactions charged against the several defendants, lest proof
of distinct transactions blend to the prejudice of some defendants.
The evidence concerning these petitioners was not in any proper
sense of the words evidence concerning "the same series of acts or
transactions" constituting an offense. The Schaffers had nothing to
do with Karp's shipments to Massachusetts, nor Marco's shipments to
West Virginia; nor did the latter two have anything to do with
Schaffers' shipments to Pennsylvania. The only possible connection
between these disparate transactions was the fact that each
petitioner dealt with the Stracuzzas, who were the brains of these
deals. But that was a happenstance which did not make petitioners
any the less strangers to each other. The Pennsylvania,
Massachusetts, and West Virginia shipments had nothing in common
except that they were all from the house of Stracuzza. Yet
customers of one shop, engaged in an illegal enterprise, do not
become participants "in the same series of acts or transactions"
unless, somehow or other, what each does is connected up with the
others or has some relation to them.
It is said that the joinder was proper if participation "in the
same series" of transactions was "alleged" in the indictment. Such
an allegation, to be sure, saves the indictment from attack at the
preliminary stages. Yet, once it becomes apparent during the trial
that the defendants have not participated "in the same series" of
transactions, it would make a mockery of Rule 8(b) to hold that the
allegation alone, now known to be false, is enough to continue the
joint trial.
The Court, in
Kotteakos v. United States, 328 U.
S. 750,
328 U. S. 773,
disapproved the joinder for trial of eight or more conspiracies
related in kind "when the only nexus among them lies in the fact
that one man participated in all." Guilt with us remains
personal.
"The dangers of transference of guilt from one to another across
the line
Page 362 U. S. 523
separating conspiracies, subconsciously or otherwise, are so
great,"
said the Court in the
Kotteakos case, "that no one
really can say prejudice to substantial right has not taken place."
Id. at
328 U. S. 774.
A like danger of such transference existed in the present case. It
is not enough to say that evidence of the guilt of each of the
present petitioners may have been clear. Reasons for severance are
founded on the principle that evidence against one person may not
be used against a codefendant whose crime is unrelated to the
others. Instructions can be given the jury, and admonitions can be
made explicit that the line between the various defendants must be
kept separate. The district judge conscientiously made that effort
here. But where, as here, there is no nexus between the several
crimes, the mounting proof of the guilt of one is likely to affect
another. There is no sure way to protect against it except by
separate trials, especially where, as here, the several defendants,
though unconnected, commit the crimes charged by dealing with one
person, one house, one establishment. By a joint trial of such
separate offenses, a subtle bond is likely to be created between
the several defendants though they have never met nor acted in
unison; prejudice within the meaning of Rule 14 [
Footnote 2/7] is implicit.
This is unlike the case where the conspiracy count and the
substantive counts are submitted to the jury, the verdict being not
guilty of conspiracy, but guilty on the other counts. There is then
no escape from the quandary in which defendants find themselves.
Once the conspiracy is supported by evidence, it presents issues
for the jury to
Page 362 U. S. 524
decide. What may motivate a particular jury in returning a
verdict of not guilty on the conspiracy count may never be
known.
Conspiracy presents perplexing problems that have long concerned
courts.
See Krulewitch v. United States, 336 U.
S. 440;
Delli Paoli v. United States,
352 U. S. 232.
While it is proper at times to join a conspiracy count with
substantive counts even where the latter are the same as the overt
acts charged in the conspiracy count,
Pinkerton v. United
States, 328 U. S. 640,
there is danger in any multiplication. The loose practice of trying
to bring together into one conspiracy those whose ties are, at
best, extremely tenuous has often been criticized. [
Footnote 2/8] We allow conspiracy to be put to new
dangerous uses when we sanction the practice approved here.
I would reverse these judgments and remand the causes for new
trials.
[
Footnote 2/1]
18 U.S.C. § 2314, provides in relevant part:
"Whoever transports in interstate or foreign commerce any goods,
wares, merchandise, securities or money, of the value of $5,000 or
more, knowing the same to have been stolen, converted or taken by
fraud; . . ."
"Shall be fined not more than $10,000 or imprisoned not more
than ten years, or both."
[
Footnote 2/2]
18 U.S.C. § 2311, provides, so far as material here:
"'Value' means the face, par, or market value, whichever is the
greatest, and the aggregate value of all goods, wares, and
merchandise, securities, and money referred to in a single
indictment shall constitute the value thereof."
[
Footnote 2/3]
A motion of petitioner Karp for a severance was denied.
United States v. Stracuzza, 158 F.
Supp. 522.
[
Footnote 2/4]
A separate indictment charging a conspiracy between petitioners
and others to violate 18 U.S.C. § 659 by receiving and concealing
goods stolen in interstate commerce was also dismissed.
[
Footnote 2/5]
Rule 8(b) provides:
"Two or more defendants may be charged in the same indictment or
information if they are alleged to have participated in the same
act or transaction or in the same series of acts or transactions
constituting an offense or offenses. 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."
[
Footnote 2/6]
See 362
U.S. 511fn2/5|>note 5,
supra.
[
Footnote 2/7]
Rule 14 provides:
"If it appears that a defendant or the government is prejudiced
by a joinder of offenses or of defendants in an indictment or
information or by such joinder for trial together, the court may
order an election or separate trials of counts, grant a severance
of defendants or provide whatever other relief justice
requires."
[
Footnote 2/8]
See Annual Report of the Attorney General for 1925, pp.
5-6; O'Dougherty, Prosecution and Defense Under Conspiracy
Indictments, 9 Brooklyn L.Rev. 263; Developments in the Law:
Criminal Conspiracy, 72 Harv.L.Rev. 920, 980-983; Note, Guilt by
Association -- Three Words in Search of a Meaning, 17 U. of
Chi.L.Rev. 148; Note, The Conspiracy Dilemma: Prosecution of Group
Crime or Protection of Individual Defendants, 62 Harv.L.Rev. 276;
United States v. Falcone, 109 F.2d 579, 581;
United
States v. Liss, 137 F.2d 995, 1003 (dissenting opinion).