Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. 72 CR 241 BERNARD M. DECKER, Judge.
Swygert, Chief Judge, Fairchild, Cummings, Pell, Stevens and Sprecher, Circuit Judges. Swygert, Chief Judge, dissenting. Sprecher, Circuit Judge, dissenting.
FAIRCHILD, Circuit Judge.
Defendant Pacente appealed from convictions of extortion under 18 U.S.C. § 1951, and of a false material declaration before a grand jury, under § 1623. A panel of this court reversed and remanded for a new trial. United States v. Pacente, 490 F.2d 661 (7th Cir. 1973). Pursuant to the government's suggestion, we reheard the appeal en banc.
Defendant, a Chicago police officer, was indicted on two counts. The first charged the extortion of $200 from Kovacevic, a liquor store owner. The second charged that defendant made a materially false declaration to the grand jury in denying that he had ever received a certain $200 check, and alleged that he had in fact received it at the time of the alleged extortion. Before trial, defendant moved that the court require the government to elect on which count to proceed, or alternatively, order separate trials.*fn1 The district court denied this motion.*fn2 Defendant does not appear to have renewed the motion during the course of the trial, although he did unsuccessfully raise the issue in his motion after verdict.
The government's evidence is summarized in 490 F.2d 661-63 and requires only brief description here. Kovacevic, owner of Chicago-Oak Liquors, testified that on June 10, 1971, defendant entered his store and accused him of having sold liquor to a minor. Defendant informed Kovacevic that he would be arrested, and then asked, "How much money can you give me?" After negotiations, Kovacevic gave defendant a check for $200 payable to cash; no arrest occurred. The parties stipulated that, before the grand jury, the prosecutor had shown defendant a $200 Chicago-Oak Liquors check, dated June 10, 1971, signed by Kovacevic and payable to cash. Defendant then denied receiving the check.
Defendant argues that the indictment misjoins the extortion and false declaration counts contrary to Rule 8(a), F.R. Cr. P., and, even if a joint indictment is permissible, that Rule 14 requires separate trials.
"Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan."
As stated by the panel, both offenses are "'based on the same act or transaction': Pacente's taking of the $200 from Kovacevic"*fn3 and both require substantially the same proof. See United States v. Sweig, 441 F.2d 114, 118-19 (2d Cir. 1971), cert. denied, 403 U.S. 932, 29 L. Ed. 2d 711, 91 S. Ct. 2256. We conclude, as did the panel, that Rule 8(a) permitted joinder.
Rule 14, F.R. Cr. P., provides in part:
"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."*fn4
The grant or denial of severance or separate trials under Rule 14 is discretionary. See, e.g., United States v. Kahn, 381 F.2d 824, 841 (7th Cir. 1967), cert. denied, 389 U.S. 1015, 19 L. Ed. 2d 661, 88 S. Ct. 591; United States v. Quinn, 365 F.2d 256, 267 (7th Cir. 1966). Denial of relief will produce reversal only if abuse of discretion is shown. United States v. Rogers, 475 F.2d 821, 828 (7th Cir. 1973).
Review of the exercise of this discretion must be based on the state of the record at the time of the motion. Rogers, supra.
In United States v. Sweig, 316 F. Supp. 1148 (S.D.N.Y. 1970), aff'd 441 F.2d 114 (2d Cir. 1971), cert. denied, 403 U.S. 932, 29 L. Ed. 2d 711, 91 S. Ct. 2256, Sweig and Voloshen were indicted for conspiracy to defraud the United States, and a number of overt acts were alleged. A number of other counts charged one or the other defendant with perjury in testimony before the grand jury concerning the transactions charged as overt acts. Because joint trial of defendants on the conspiracy count was unquestionably permissible, and because substantially all the evidence on the perjury counts could properly be heard in such joint trial for conspiracy even if the perjury counts were absent, the district court denied severance of defendants (and apparently separate trials of the perjury counts), but did so without prejudice to a renewed application later on, noting that "It remains possible, of course, that different things or a different light may appear as the case advances toward or through the trial stage."
Voloshen pleaded guilty. Sweig was convicted and appealed, arguing that the conspiracy and perjury counts should not have been tried together. In affirming, the second circuit noted that Sweig had not taken advantage of the willingness of the district court to reconsider at a later stage and held that under the circumstances, the denial of the motion was not plain error. Evidently the court of appeals deemed it was not an abuse of discretion to deny separate trials where the sole ground of the motion was that one count charged conspiracy and other counts charged perjury before the grand jury with respect to elements of the conspiracy.*fn5
"To find an abuse of discretion it would be necessary, in effect, to find that the facts and law presented to the trial judge at the time of the motion for severance demonstrated that a trial under joinder was likely to be unfair and that the trial was in fact unfair." Kahn, supra, at 841. See also United States v. Blue, 440 F.2d 300, 302 (7th Cir. 1971), cert. denied, 404 U.S. 836, 30 L. Ed. 2d 68, 92 S. Ct. 123.
Defendant's claim of prejudice is based on the supposed effect on the jury's consideration of Count I of information the jury would glean from Count II. One of the allegations of Count I was that defendant obtained $200 from Kovacevic in June, 1971. Count II charged that defendant declared to the grand jury under oath that he never received a $200 Kovacevic check, payable to cash, dated June 10, 1971, and charged that such declaration was false in that he had received such check on June 10. Competent evidence that defendant received the check June 10 would tend to establish an element of both counts. Defendant argues that in considering whether or not defendant received the $200 as charged in Count I, the jury would not only have before it such competent proof, but, in addition, would be aware from Count II (and proof of defendant's grand jury testimony) (1) that defendant had told the grand jury he did not receive the check, and (2) that the grand jury did not believe the defendant. If Count I were tried separately, on the other hand, the jurors would be unaware of (1) and (2).*fn6
It is claimed that the jury's awareness of (1) and (2) was prejudicial to fair consideration of Count I because the grand jury's disbelief of defendant's denial would discredit defendant's denial at trial if he chose to testify, and would in any event tend to make the proof against him seem more persuasive.
The view which the trial jury ought to take is that each count is a mere accusation. Although the issue concerning receipt of the $200 check was central to each count, proof on that issue was to be weighed and the issue resolved according to the instructions of the court, and not differently by reason of the presence of two accusations as to both of which the issue was significant. In order to find merit in defendant's position, we would have to assume that the trial jurors will treat Count II not merely as a formal accusation of a false declaration, but as a pronouncement, worthy of respect, of an opinion concerning Count I. Trial jurors may in fact know what a grand jury is and how it functions. A trial juror may or may not realize that the standard of certainty required of a grand jury is probable cause to believe that a defendant has committed an offense, and may believe that a grand juror will not vote to indict for a false statement unless personally convinced that the witness lied. Conceivably a trial juror may be influenced in deciding to believe a witness' testimony by the fact that the grand jurors heard the same testimony and did not believe it.*fn7
These things are all conceivable, but it is the judgment of a majority of this court that it is an unwarranted over-refinement to speculate that they present a significant danger that the trial jurors, acting together, will give weight to the conclusion reached by the grand jurors and fail to decide the issues of fact according to their own proper evaluation of the evidence.*fn7a
Jurors are ordinarily, and were in this case, fortified in viewing the indictment as mere accusation, by instructions from the court. They were told:
"The indictment that I am going to refer to in a few moments is not evidence of the defendant's guilt, it is simply, as I told you before [presumably on voir dire], the manner by which the government accuses a person of a crime, and you should not be prejudice[d] against ...