Citations
- 167 F.2d 820
Full opinion text
DOBIE, Circuit Judge.
In the United States District Court for the District of Maryland, John Cataneo, Benjamin Magliano and Vincent Drecchio were indicted, tried before a jury, convicted and sentenced for violation of 50 U.S.C.A. Appendix, § 311, which reads, in part, as follows:
“* * * any person who shall knowingly make, or be a party to the making of, any false statement or certificate as to the fitness or unfitness or liability or nonliability of himself or any other person for service under the provisions of this Act, or rules, regulations,- or directions made pursuant thereto, or who otherwise evades registration or service in the land or naval forces or any of the requirements of this Act, or who knowingly counsels, aids, or abets another to evade registration or service in the land or naval forces or any of the requirements of this Act, or of said rules, regulations, or directions, or who in any manner shall knowingly fail or neglect to perform any duty required of him under or in the execution of this Act, or rules or regulations made pursuant to this Act, * * * or conspire to do so, shall, upon conviction in the district court of the United States having jurisdiction thereof, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment * *
These defendants were tried on two indictments. One indictment (in two counts) charged Magliano and Drecchio with making and causing to be made false statements in affidavits to Selective Service Form 41-A (Occupational Deferment) submitted by the American Ship Cleaning Company on behalf of Magliano. The other indictment charged Cataneo and Magliano with making and causing to be made false statements in a letter to the Local Draft Board on behalf of Magliano. As a result of this letter and Selective Service Form 42-A, Magliano was placed in a deferred classification. Over strenuous objections, the indictments were consolidated for trial. Drecchio did not appeal but Cataneo and Magliano have appealed to us.
As will subsequently appear, the appeals of Magliano and Cataneo have much in common; in some respects, however, the two appeals differ. We take up first the appeal of Cataneo.
The contention of .Cataneo which merits our most serious attention is that prejudicial error was committed when he was joined with Magliano in indictment No. 20741, and when the trial court consolidated for common trial this indictment with indictment No. 20740 against Magliano and Drecchio.
We quote the apposite Rules of Criminal Procedure, 18 U.S.C.A. following section 687:
“Rule 8. Joinder of Offenses and of Defendants
“(a) Joinder of Offenses. 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.
“(b) 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.”
“Rule 13. Trial Together of Indictments or Informations
“The court may order two or more indictments or informations or both to be tried together if the offenses, and the defendants if there is more than one, could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution were under such single indictment or information.”
“Rule 14. Relief from Prejudicial Joinder
“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.”
It will be noted that Rule 8(a) permits the joinder of two or more offenses in the same indictment when the offenses “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.” Rule 8(b) permits the joinder of two or more