Schaffer v. United States/Dissent Douglas

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, 18 U.S.C.A. § 2314, for transporting in interstate commerce goods known to have been stolen and having a value in excess of $5,000.

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' 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, 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 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 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.'

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) 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, C.C., 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 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, 17 S.Ct. 31, 41 L.Ed. 355, 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., 164 U.S. at page 81, 17 S.Ct. at page 33.

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 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, 773, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557, 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 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., 328 U.S. at page 774, 66 S.Ct. at page 1252. 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 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 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, 69 S.Ct. 716, 93 L.Ed. 790; Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278. 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, 66 S.Ct. 1180, 90 L.Ed. 1489, 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. 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.