Kiley, Swygert and Kerner, Circuit Judges.
Defendants were indicted for violating 18 U.S.C. § 1703: Count I charged defendant-appellant Scott; Count II charged defendants-appellants Scott and Pearson; and Count III charged defendants-appellants Scott, Pearson and Staples. The defendants were tried together before a jury and all were found guilty. From this verdict, all appeal.
The issues before this Court are whether or not joinder was proper under Rule 8(b) of F.R.Crim.P. and whether or not a severance should have been granted under Rule 14 of F.R.Crim.P.
All three defendants were postal employees in the main post office in Chicago, Illinois. On October 27, 1965, a postal inspector positioned on top of an elevator shaft observed defendant Scott, an elevator operator, remove mail pouches filled with coin from a flat truck and hide them in an empty cart on the elevator. Scott pushed the flat truck off on the second floor where it belonged and took the cart up to the fourth floor where he was observed by another inspector. Later Scott removed the cart from the fourth floor to the third floor, which is a storage floor. There is no evidence of what happened after the cart was pushed off on the third floor since no inspector was present. This evidence is the basis for Scott's indictment and conviction under Count I.
On November 5, 1965, a postal inspector, again observed defendant Scott remove coin pouches from a flat bed truck on the elevator and place them in a cart. The flat truck was pushed off the elevator on the second floor, and the cart was taken off on the third floor and hidden among the other carts located there. Later an inspector saw defendant Scott return to the third floor where he met defendant Pearson. While Scott read a newspaper, defendant Pearson unloaded the cart containing the coin pouches and hid them. The pouches were not recovered. This evidence supports the indictment and conviction of defendants Scott and Pearson under Count II.
On November 8, 1965, another inspector observed defendant Scott remove mail pouches from a flat truck on the elevator and place them in a cart. Scott moved the elevator to the third floor where defendant Pearson removed the cart from the elevator and pushed it out of the view of the inspectors located there. Pearson then left the area. An hour later defendant Staples pushed a cart containing equipment into the area where the cart with the coin pouches was located. Staples hid the coin pouches on the floor amidst the bags of equipment taken from the other cart and left the area. Inspectors kept the pouches in sight until November 13, 1965, when they observed Staples return. Staples picked up the pouches and put them in a cart. He pushed the cart toward the elevator and disappeared. When he returned and began pushing the cart in the opposite direction, he was arrested. The pouches he had in his possession contained coin. This evidence is the basis for the indictment and conviction of Scott, Pearson and Staples under Count III.
Rule 8(b) of F.R.Crim.P. provides:
Joinder of Defendants. 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.
Under Rule 8(b) defendants may be joined together in the same indictment under two conditions: one, if they participated together in the same "act or transactions * * *;" or two, if they participated "in the same series of acts or transactions * * *." It is clear that the defendants here did not participate in the same act or transaction.
It is not necessary that defendants be charged with conspiracy. Schaffer v. United States, 362 U.S. 511, 80 S. Ct. 945, 4 L. Ed. 2d 921 (1960), is inapplicable to this case. In Schaffer the
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). Douglas, J. dissenting. Id. at 520, 80 S. Ct., at 950.
It is for this reason that without the conspiracy count, joinder under Rule 8(b) would have been improper in Schaffer.
If defendants' acts were part of a series of transactions, it is not necessary under Rule 8(b) that all the defendants need to be charged in the same count nor need the evidence show that each defendant participated in the same act or transaction. Kivette v. United States, 230 F.2d 749 (5th Cir. 1956). It must only be shown that each act or transaction was part of a series ...