United States v. James C. Hatcher, United States of America v. Haralabos Manetas

680 F.2d 438, 1982 U.S. App. LEXIS 18594

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 8, 1982
• Docket: 80-5094, 80-5098
• Status: Published

Opinions

JOHN W. PECK, Senior Circuit Judge.

This case involves the consolidated appeals from the convictions of two defendants who were jointly indicted and jointly tried for federal narcotics crimes. Each defendant was charged with three counts that related to possession and distribution of heroin during the months of May to June of 1978, and each defendant was subsequently convicted by a jury on all three of these heroin-related counts. Furthermore, the joint indictment charged defendant Hatcher with two counts of distribution of cocaine in May of 1978. The joint indictment also charged Hatcher with one count of possession of cocaine at the time of his arrest in February of 1979.

The three cocaine counts against Hatcher were tried at the joint trial of Hatcher and defendant Manetas, and Hatcher was convicted by the jury on all three cocaine counts. Because the appeals of Manetas and Hatcher raise entirely separate questions they are treated separately below.

I. No. 80-5098, Defendant Manetas

Manetas contends that the trial court committed reversible error when it failed to grant his pretrial motion for severance. By that motion Manetas sought a separate trial on the ground that the three cocaine counts of the joint indictment related only to code-fendant Hatcher, and that a joint trial would therefore prejudice Manetas. Mane-tas’ memorandum to the trial court in support of that motion stated that severance was requested pursuant to Fed.R.Crim.Pro. 14. That rule provides that a court may grant appropriate relief when, in the exercise of its discretion, the court finds that joinder of offenses or of defendants will prejudice either a defendant or the government. The government’s response to Mane-tas’ motion focused on the question of prejudice under Rule 14, arguing that Manetas had not carried his burden of showing that a joint trial would unduly prejudice Mane-tas. After a hearing the district court denied the severance motion on the ground that Manetas had failed to carry his burden under Rule 14.

Unfortunately, in moving for a separate trial Manetas failed to emphasize the requirements of Fed.R.Crim.Pro. 8(b) for join-der of multiple defendants in a single indictment. Rule 8(b) 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.

While it is true that Rule 8(b) should be construed in favor of joinder, United States v. Franks, 511 F.2d 25, 28 (6th Cir.), cert, denied, 422 U.S. 1042, 95 S.Ct. 2654, 45 L.Ed.2d 693 (1975), it is also true that failure to meet the requirements of this rule constitutes misjoinder as a matter of law. Questions of prejudice are properly raised under Rule 14 only if the joinder of multiple defendants is proper under Rule 8(b). If multiple defendants are improperly joined under Rule 8(b) because they are charged with offenses that are unrelated, then they are to be considered as prejudiced by that fact and the trial judge has no discretion on the question of severance. Severance in such a case is mandatory. United States v. Kaplan, 588 F.2d 71, 74 (4th Cir. 1978); United States v. Nettles, 570 F.2d 547, 552 (5th Cir. 1978); Ward v. United States, 289 F.2d 877, 878 (D.C.Cir. 1961). See also, United States v. Bova, 493 F.2d 33 (5th Cir. 1974). No federal appellate cases to the contrary have been brought to our attention.

The joinder of multiple defendants is proper under Rule 8(b) only if each of the counts of the indictment arises out of the same act or transaction or series of acts or transactions, even if all counts of the indictment include a common defendant. United States v. Kaplan, supra, at 74; United States v. Martin, 567 F.2d 849, 853 (9th Cir. 1977); United States v. Nettles, supra at 551. In the present case the indictment on its face alleges no connection between Manetas and the cocaine-related charges against Hatcher. Neither does the record reveal any evidence of such a connection. As a matter of law the joinder of Manetas and Hatcher was therefore improper under Rule 8(b).

While a defendant may waive his rights under Rule 8(b) by failure to make a timely motion for severance, United States v. Parson, 452 F.2d 1007, 1008 (9th Cir. 1971), we are of the opinion that Manetas did not waive his Rule 8(b) rights in this case because his motion for a separate trial focused on Rule 14 rather than on Rule 8(b). Manetas’ motion for separate trial and his supporting memorandum, though asking for relief under Rule 14, nonetheless called the court’s attention to the fact that the joint indictment recited crimes with no alleged connection to Manetas. Furthermore, the government’s brief in response to Manetas’ severance motion began by reciting Rule 8(b)’s statement that joinder of multiple defendants in the same indictment is permissible only if the defendants are alleged to have participated in the same act or transaction constituting the offense or offenses.

In Cupo v. United States, 359 F.2d 990 (D.C.Cir.1966), cert. denied, 385 U.S. 1013, 87 S.Ct. 723, 17 L.Ed.2d 549 (1967), the District of Columbia Court of Appeals concluded that a defendant had raised and therefore preserved an issue of misjoinder under Rule 8(b) though the facts in Cupo more strongly suggested a waiver of Rule 8(b) than do the facts of the present case. In Cupo a defendant’s pretrial motion for severance alleged that offenses charged against him were distinct from the other defendants joined in the indictment and argued that a joint trial would prejudice him. That defendant not only did not mention Rule 8(b) in his severance motion or at the hearing on the motion, but also he did not even argue the issue of joinder on appeal. Nonetheless, the D.C. Circuit concluded that the issue of misjoinder under Rule 8(b) had been raised by the fact of the defendant’s argument at the hearing that a charge against him was “distinguishable” from all the other counts and constituted a separate offense. Id. at 992, n.l. The D.C. Circuit then reversed that defendant’s conviction on grounds of misjoinder under Rule 8(b).

In the present case, as in Cupo, the issue of proper joinder in the face of an indictment alleging crimes unrelated to a joint defendant was raised. Furthermore, in the present case defendant Manetas has reasserted his contention that joinder was improper on appeal. Under these circumstances we believe that Manetas’ motion for a separate trial was minimally sufficient to raise and to preserve the question of mis-joinder under Rule 8(b). See, United States v. Bova, 493 F.2d 33, 37 (5th Cir. 1974) (failure to renew motion for severance after properly raised and improperly denied does not waive right to appeal denial).

On appeal the government argued that Manetas has failed to show that he was prejudiced by his joinder with Hatcher and that it was within the district court’s discretion to refuse to sever pursuant to Fed.R. Crim.Pro. 14. However, unlike the balancing of judicial efficiency against the potential for prejudice that is required by Rule 14, the joinder requirements of Rule 8(b) leave nothing to the discretion of the court. When misjoinder occurs severance is mandatory and failure to sever is error. We can take cognizance of the government’s argument that Manetas in faet suffered no prejudice from the improper joinder only by the application of the harmless error rule of Fed.R.Crim.Pro. 52.

We are of the opinion that Rule 52 must be applied with great caution in instances of misjoinder under Rule 8(b). Because misjoinder occurs under Rule 8(b) when a defendant is joined in an indictment containing charges that are unrelated to that defendant, there is a temptation to find that the trier of fact was able to keep the unrelated charge separate from the question of the particular defendant’s guilt, and that the misjoinder was therefore harmless. However, to apply this reasoning liberally would nullify the requirements of Rule 8(b). Consequently, we believe that misjoinder should be found harmless only where the unrelated charge and the evidence supporting that charge is such an inconsequential part of the joint indictment and trial that no possible harm from the misjoinder could reasonably have occurred. E.g., United States v. Martin, supra at 854.

Such a situation could occur when the evidence of the improperly joined offense would nonetheless have been admissible to prove the properly joined offenses. United States v. Seidel, 620 F.2d 1006 (4th Cir. 1980); United States v. Granello, 365 F.2d 990, 995 (2d Cir. 1966), cert. denied, 386 U.S. 1019, 87 S.Ct. 1367, 18 L.Ed.2d 458 (1967). In keeping with the requirement that the evidence must be an inconsequential part of the indictment and trial, if the extent of the proof is significantly greater than that reasonably used to demonstrate other crimes or if the focus of the trial is shifted away from proof of the properly joined offense, then prejudice is shown. United States v. Satterfield, 548 F.2d 1341, 1346 (9th Cir. 1977), cert. denied, 439 U.S. 840, 99 S.Ct. 128, 58 L.Ed.2d 138 (1978).

In the present case the indictment alleged no connection between' Manetas and any transactions related to the cocaine charges. Rather, the government’s proof against Manetas was directed at showing that. Manetas was Hatcher’s source of heroin. The cocaine count evidence would not be admissible against Manetas. In these circumstances, we cannot say that the misjoin-der of Manetas and Hatcher was harmless. These facts pose too great a risk of the type of prejudice and confusion that Rule 8(b) seeks to avoid by regulating the joinder of multiple defendants. Instructions to the jury to consider the proof against each defendant separately cannot replace adherence to the requirements of Rule 8(b). Therefore, we hold that failure to grant Manetas’ motion for severance was error and that the conviction of Manetas on three counts of the joint indictment must be reversed.

II. No. 80-5094, Defendant Hatcher

Defendant Hatcher raises a number of issues on appeal. Because we decide that the first of these requires reversal of Hatcher’s convictions on all counts, wc do not reach the other issues presented by him.

Hatcher contends that the cocaine seized from the basement of his residence at the time of his arrest was discovered as the result of an illegal search and should therefore not have been admitted as evidence. It is uncontradicted that the arresting agents conducted a warrantless search of Hatcher’s entire dwelling subsequent to arresting Hatcher and placing him under their control. It hardly needs to be noted that warrantless searches of dwellings are per se unreasonable under the Fourth Amendment, subject only to a few narrowly delineated exceptions.

During a pretrial hearing on Hatcher’s motion to suppress the cocaine seized at the time of his arrest, conflicting testimony was given regarding when and where the cocaine was discovered. Clearly, the agents conducted a “sweep search” of the entire house, including several rooms in the basement, for the asserted purpose of determining whether other persons or weapons were present. However, there was dispute whether the cocaine had been visible at the time and place where Hatcher was apprehended, or whether it was discovered only during the search subsequent to the arrest. Both arresting agents testified that the cocaine had been found in “plain view” on top of a water heater in the basement. One of the agents stated that the cocaine could be seen from the spot where Hatcher was apprehended. The other agent could not remember whether the water heater could be seen from the place where Hatcher was found or if it was discovered during the subsequent search.

Hatcher’s counsel has erroneously stated in his appellate brief that Hatcher testified that the cocaine was in a desk drawer and hence was not in “plain view.” Actually, Hatcher testified that the cocaine was on a desk, presumably in plain view of anyone with a right to be where the desk was located. However, Hatcher testified that the desk was underneath a stairway and not visible from the spot where the agents arrested him.

In denying Hatcher’s motion to suppress, the court concluded that the agents’ exploration of the basement subsequent to the arrest was justified by the inherent dangers attending narcotics arrests and that the agents therefore had a right to be at whatever place in the basement the cocaine was discovered “in plain view.” The district court’s discussion of the search issue contains an implicit but rather clear rejection of the plain view exception unaided by the sweep search approval. Thus, we can affirm the district court’s denial of Hatcher’s suppression motion only if we conclude that the agents’ search of the basement was proper.

Certainly the agents’ warrantless search was not proper unless the circumstances surrounding that search provided an exception to the warrant requirement of the Fourth Amendment. We conclude, however, that the “plain view” doctrine cannot provide that exception in this case. The district court did not find that the cocaine was inadvertently discovered within the plain view of the agents at the time and ’place of Hatcher’s arrest, but rather that the “protective sweep” type search that the agents conducted subsequent to the arrest was proper and gave the agents the right to be at the place in the basement where the cocaine was discovered in “plain view.” If this sweep search was proper as an exception to the warrant requirement in order to protect the arresting agents, then whether the cocaine was in plain view or not is largely irrelevant. If the circumstances permitted a protective search, discovery of the cocaine would have been proper since the district court found that it was seen in the basement. If the protective search was improper, then the court’s finding that the agents had a right to be wherever it was in the basement that they discovered the cocaine cannot be sustained.

Under certain exigent circumstances an unwarranted “protective sweep” search for other persons during the execution of an arrest warrant is permissible. E.g., United States v. Bowdaeh, 561 F.2d 1160, 1168-69 (5th Cir. 1977); Kinser v. Cooper, 413 F.2d 730, 733 (6th Cir. 1969). However, this exception is no more lightly taken than any other instance where the government seeks to justify an unwarranted search, and the burden on the government to show the exigency that made an unwarranted search imperative is a heavy one. E.g., United States v. Gamble, 473 F.2d 1274, 1277 (7th Cir. 1973) (even fact that arresting officers knew defendant’s home to be an armed fortress did not justify protective sweep search following defendant’s arrest where officers could have obtained search warrant prior to arrest). The Supreme Court stated:

We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police ... [W]e cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.

McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948).

In order that a protective sweep search be “made imperative” for law enforcement agents who enter a home to execute an arrest warrant, there must be at the time of the search some basis for a reasonable belief by the officers that there may be other persons on the premises who could pose a danger to the agents. United States v. Gardner, 627 F.2d 906, 909 (9th Cir. 1980). Courts should be cautious “in limiting the ability of police officers to protect themselves as they carry out missions which routinely incorporate danger,” United States v. Coates, 495 F.2d 160, 165 (D.C. Cir.1974). Nonetheless, officers must be able to articulate justification for a warrantless search. Id.

In the present case the district court stated that there was no evidence that Hatcher was a dangerous individual and no indication that any other persons were in the house at the time of Hatcher’s arrest. In the face of these specific findings we believe it was error for the district court to conclude that a search of the basement subsequent to Hatcher’s arrest and handcuffing was justified solely because “the subject of drugs is a dangerous one, dangerous for all of those persons involved in it, especially those who are on the law enforcement side.” That reasoning may be too easily applied to any number of categories of criminal arrests, and would permit wholesale abrogation of the Fourth Amendment reasonableness requirement whenever an arrest is made in such subject areas. On the facts of this case the warrantless search of the basement was not justified on the basis of a need for protection of the arresting agents. Because the burden of showing exigent circumstances justifying the war-rantless search was on the government, the district court’s denial of Hatcher’s suppression motion was error.¹

Where evidence seized in violation of the Fourth Amendment rights of a defendant is erroneously admitted, any conviction of that defendant which might have been influenced by the admission of that evidence must be reversed. Fahy v. Connecticut, 375 U.S. 85, 86, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963). Only if the erroneously admitted evidence could not have contributed to the conviction can that error be found harmless beyond a reasonable doubt.

In the present case it cannot be disputed that Hatcher’s conviction on the charge of possession of cocaine at the time of his arrest was influenced by the admission of the cocaine seized at his arrest. Consequently that conviction must be set aside.

The question of the effect of the erroneously admitted cocaine evidence on Hatcher’s convictions on the remaining five counts presents a closer issue. Arguably, because these counts were unrelated to the separate count of possession, the evidence of possession may not have influenced the jury’s determination on the other five charges. However, the effect of the erroneously admitted evidence on Hatcher’s convictions cannot be considered harmless merely because those charges are technically unrelated to the erroneously admitted cocaine evidence. “Our judgment must be based on our own reading of the record and on what seems to us to have been the probable impact of the . . . [erroneously admitted evidence] ... on the minds of an average jury.” Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (1969). Only if our review of the entire record leaves us convinced that the impact of the cocaine evidence was in-consequential to the jury’s determination of Hatcher’s guilt can we consider the erroneous admission to be harmless error. See, id.

In the present case Hatcher was convicted on five narcotics charges based on events alleged to have occurred in the first half of 1978. The cocaine was seized at the time of Hatcher’s arrest in February of 1979. Hatcher’s defense to all counts was entrapment, claiming that he only became involved in narcotics because a government informant whom he considered to be his friend and other government agents reportedly solicited him early in 1978 to procure drugs for them. Hatcher testified that he had never had anything to do with drugs before these solicitations, that he only became involved with drugs out of friendship and pity for the informant, and that he made no profit from his involvement in narcotics on behalf of the informant and other agents.

With respect to at least some, if not all, of the transactions involving Hatcher, a government agent testified that Hatcher had not initiated the drug transactions, but rather that the agent himself had initiated the contacts. The government informant, however, testified that Hatcher had first approached him concerning possible drug deals.

On these facts the jury was confronted with a genuine issue whether Hatcher was predisposed to possess and distribute narcotics, or whether Hatcher was induced to deal in drugs by and for his friend the informant. The last of the transactions that Hatcher contended that he had undertaken at the government agents’ urging occurred in June of 1978. However, evidence was erroneously admitted at trial that Hatcher was in possession of cocaine in February of 1979, eight months later.

We are of the opinion that the effect of this evidence on an average jury would be to influence them to disbelieve Hatcher’s contention that he had only been involved in drugs at the behest of the government agents. The average juror, we feel, would be likely to discount that testimony, and consequently Hatcher’s only defense, in light of the evidence that Hatcher had cocaine in his home eight months after the last transaction that was allegedly induced by the agents. Because of this “probable impact ... on the minds of an average jury,” Harrington, supra, we cannot say that the erroneous admission of the cocaine seized at Hatcher’s arrest was inconsequential to the jury’s determination of Hatcher’s guilt on any counts of the indictment. Therefore Hatcher’s convictions on all counts must be reversed.

For the reasons stated above all convictions of each defendant-appellant must be reversed and the judgments of conviction vacated, and the causes are remanded for further action not inconsistent herewith.

1 . The district court’s refusal to hold the unwarranted search invalid was not based on a finding that the search was proper as “incidental to arrest.” Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Since such a search must be limited to the area from which the arrestee might have obtained a weapon or evidence, and since the court in the present case did not resolve the conflicting testimony on the location of the cocaine at the time of arrest in favor of the government, the district court’s decision cannot be affirmed on the ground that the search was incident to an arrest.