John P. Tillman, Robert Barber Moore, Johnny C. Wilson, Larry Fox, Donald P. Stone and Michael W. Simmons v. United States

406 F.2d 930
CourtCourt of Appeals for the Fifth Circuit
DecidedMarch 10, 1969
Docket25381_1
StatusPublished
Cited by221 cases

This text of 406 F.2d 930 (John P. Tillman, Robert Barber Moore, Johnny C. Wilson, Larry Fox, Donald P. Stone and Michael W. Simmons v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
John P. Tillman, Robert Barber Moore, Johnny C. Wilson, Larry Fox, Donald P. Stone and Michael W. Simmons v. United States, 406 F.2d 930 (5th Cir. 1969).

Opinions

AINSWORTH, Circuit Judge:

Appellants Tillman, Stone, Wilson, and Fox appeal from a jury verdict finding them guilty of attempting to interfere with the administration of the Universal Military Training and Service Act, in violation of 50 U.S.C. App. § 462.1 In addition, these four appellants, as well as [933]*933appellants Moore and Simmons, were found guilty of wilfully injuring property of the United States, in violation of 18 U.S.C. § 1361,2 and likewise these convictions are appealed.3 After a painstaking consideration of the numerous objections of the appellants, we affirm the convictions.

On August 18, 1966, appellants and other picketers arrived at the Armed Forces Entry and Examining Station in Atlanta, Georgia, and commenced picketing the station as a protest against the war in Vietnam. On numerous occasions, they attempted to gain admission to the station, allegedly to protest a water-throwing incident of the previous day, but Army personnel, assigned to guard the entrance, prevented them from entering. In the midst of this somewhat confused confrontation, there were numerous inductees who had been ordered to report to the station for induction that day,4 and the testimony of Government witnesses shows that appellants' Tillman, Stone, Wilson, and Fox restrained at least one inductee, one Ver-bon Grimes, from entering the induction center. The testimony of Sergeant Faeemire, largely corroborated by the testimony of others assigned to guard the center, showed that while appellant Wilson grabbed Grimes’ AWOL bag and appellant Tillman had Grimes by an arm, appellant Stone held his trousers, and appellant Fox had „his arms around Stone’s waist in order to help pull Grimes back from the entrance. Grimes himself identified all of the appellants who were alleged to have been involved except Stone, but he stated that he could not see the individual who was holding him by his waist. Tillman, the only appellant to testify during the trial, admitted grabbing Grimes, but he said that he did so in a moment of passion to redress a personal affront and not to restrain him from entering the induction center. In addition, Tillman testified that none of the other appellants was involved in the incident.

In regard to the destruction of Government property, the prosecution alleged that all of the appellants wilfully injured a glass door with an aluminum frame, at the north side entrance to the induction station. While all of the Government witnesses were not able to identify all of the appellants as having pushed on the door when it was damaged, all of the appellants were identified as having taken part in the action by at least one witness. Thus, Sergeant Faeemire identified all seven appellants as having taken part, and the testimony of Lieutenant England was similar. Sergeant Fuller specifically identified Simmons, Wilson, and Fox.

I.

The appellants allege that the trial court erred in failing to grant their motions for severance, both as to the joinder of offenses and as to the joinder of defendants. In regard to any allegation of misjoinder of offenses,5 the rele[934]*934vant rule is Rule 8(a) of the Federal Rules of Criminal Procedure:

“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.”

This rule should not be interpreted in a technical or legalistic sense. 8 Moore, Federal Practice f[ 8.05 [1], p. 8-19 (2d ed. 1968), citing Cataneo v. United States, 4 Cir., 1948, 167 F.2d 820, 822-823. Where, as here, the offenses arose out of a series of connected acts, trial convenience dictates “that the government should not be made to prove the same facts more than once.” 6 8 Moore, Federal Practice |J 8.05 [2], p. 8-19 (2d ed. 1968). See Johnson v. United States, 8 Cir., 1966, 356 F.2d 680, 682. Thus, there was no misjoinder of offenses in the present case.

Similarly, there was no misjoinder of defendants. Rule 8(b) of the Federal Rules of Criminal Procedure states:

“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.”

In conjunction with a Rule 8(a) joinder of offenses, Rule 8(b) has the effect of permitting joinder of defendants where their alleged violations of law have arisen out of the same act or series of acts. 8 Moore, Federal Practice iff 8.06 [1], p. 8-23 (2d ed. 1968), citing United States v. Granello, 2 Cir., 1966, 365 F.2d 990, 993; Cupo v. United States, 1966, 123 U.S.App.D.C. 324, 359 F.2d 990; King v. United States, 1 Cir., 1966, 355 F.2d 700, 704-705; Ingram v. United States, 4 Cir., 1959, 272 F.2d 567. Again, since it is apparent that the offenses allegedly committed on August 18, 1966, arose out of a connected series of' acts at the induction station, there was no error under Rule 8(b) in trying the appellants together.

Having found that there was no misjoinder of offenses or defendants under Rule 8, it is still necessary to determine whether there was sufficient prejudice to require a severance under Rule 14 of the Federal Rules of Criminal Procedure. Smith v. United States, 5 Cir., 1966, 357 F.2d 486, 489; Bayless v. United States, 9 Cir., 1967, 381 F.2d 67, 72; Brown v. United States, 1967, 126 U.S.App.D.C. 134, 375 F.2d 310, 315. See 8 Moore, Federal Practice ¶ 14.02 [1] (2d ed. 1968). Rule 14 states, in relevant part, that

“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.”

The existence of prejudice, in large measure, depends upon the facts and circumstances of each ease, Flores v. United States, 5 Cir., 1967, 379 F.2d 905, 909; Blachly v. United States, 5 Cir., 1967, 380 F.2d 665, 675; Peterson v. United States, 5 Cir., 1965, 344 F.2d 419, 422, and it is axiomatic that the granting of a severance is within the discretion of the trial judge. Smith v. United States, 5 Cir., 1967, 385 F.2d 34, 37.7 [935]*935The burden of demonstrating prejudice is a difficult one, and the ruling of the trial judge will rarely be disturbed on review. 8 Moore, Federal Practice ft 14.02 [1], p. 14-3 (2d ed. 1968).

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406 F.2d 930, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-p-tillman-robert-barber-moore-johnny-c-wilson-larry-fox-donald-ca5-1969.