Before GOODRICH and HASTIE, Circuit Judges, and MILLER, District Judge.
JOHN L. MILLER, District Judge.
Appellants were convicted under two indictments: the first, containing thirty counts, charged that James Scoblick, Frank Scoblick and Anthony Scoblick, and the corporate defendant, Scoblick Bros., Inc., aided and abetted Michael Senio, cashier of Mayfield State Bank, in misapplying certain funds of the bank and in making false entries in the bank's records, and that the same defendants conspired with Senio to commit such acts.
The second indictment, containing thirty-five counts, charged defendants with using the mails to defraud.
Defendant Senio pleaded guilty and testified for the Government. Appellants were found guilty on all of the counts save one, No. 28 in the first indictment, charging a false entry. All of the defendants except Senio filed motions for judgments of acquittal and new trials.
The trial court directed the entry of a judgment of acquittal as to all appellants under Count 5 of the first indictment, charging misapplication, and denied all other motions. D.C., 124 F.Supp. 881. Judgment and sentences were then entered.
These appeals on behalf of James Paul Scoblick, Frank Scoblick, and Scoblick Bros., Inc., followed.
1. Appellants contend that the trial court committed reversible error in refusing, upon their motion, to sever the conspiracy count from the other twenty-nine counts of the first indictment. The twenty-nine substantive counts charged misapplication of funds and the making of false entries, and the thirtieth count charged a conspiracy to commit the offenses charged in the preceding twenty-nine counts. Appellants urge, in substance, that such denial of severance was prejudicial because certain evidence was admitted as being relevant to the conspiracy count which would not have been admissible in a trial of the counts charging substantive offenses alone.
Appellants place much reliance upon the concurring opinion of Mr. Justice Jackson in Krulewitch v. United States, 1949, 336 U.S. 440, 445-458, 69 S. Ct. 716, 93 L. Ed. 790, and the dissenting opinion of Mr. Justice Frankfurter in Nye & Nissen v. United States, 1949, 336 U.S. 613, 626, 69 S. Ct. 766, 93 L. Ed. 919. These opinions are concerned primarily with the development of the conspiracy doctrine itself, rather than with the practice of trying conspiracy counts together with substantive counts. In the instant case it is not asserted that the offending evidence admitted was not relevant, competent, and material to the conspiracy count. We perceive no error in the denial of severance unless we are to hold that trying a conspiracy count together with substantive counts constitutes, per se, an abuse of discretion. The law is well settled to the contrary.See United States v. Antonelli Fireworks, Co., 2 Cir., 155 F.2d 631, 635, certiorari denied 329 U.S. 742, 67 S. Ct. 49, 91 L. Ed. 640, rehearing denied, 1946, 329 U.S. 826, 67 S. Ct. 182, 91 L. Ed. 1945, 149 F.2d States v. Marzano, 2 Cir., 1945, 149 F.2d 923; Davis v. United States, 5 Cir., 148 F.2d 203, certiorari denied, 1945, 325 U.S. 888, 65 S. Ct. 1570, 89 L. Ed. 2001; United States v. Brandenburgh, 2 Cir., 1945, 146 F.2d 878; Firotto v. United States, 8 Cir., 1942, 124 F.2d 532; Cardigan v. Biddle, 8 Cir., 1925, 10 F.2d 444; cf. Opper v. United States, 1954, 348 U.S. 84, 94-95, 75 S. Ct. 158.
Moreover, the admission of evidence relevant to the conspiracy count in the trial of the substantive counts could not possibly constitute prejudicial error as to the conspiracy count. The individual defendants were sentenced concurrently on all counts. Hence, as to them, it is clear that any error with respect to the substantive counts alone would not justify a reversal. See United States v. Sherican, 1946, 329 U.S. 379, 381, 67 S. Ct. 332, 91 L. Ed. 359; Pinkerton v. United States, 1946, 328 U.S. 640, 641 note 1, 66 S. Ct. 1180, 90 L. Ed. 1489; Hirabayashi v. United States, 1943, 320 U.S. 81, 85, 63 S. Ct. 1375, 87 L. Ed. 1774; Whitfield v. Ohio, 1936, 297 U.S. 431, 438, 56 S. Ct. 532, 80 L. Ed. 778; United States v. Smith, 3 Cir., 1953, 206 F.2d 905, 908; United States v. Murphy, 3 Cir., 1941, 123 F.2d 1008.
2. Appellants argue that a new trial should be granted because of certain exaggerations made during the trial as to the amount of money and the number of checks involved. Chiefly, appellants contend that reversible error occurred in the denial of their motion for withdrawal of a juror after the following statement was made in government counsel's opening address to the jury:
"Now, the operation of that system and scheme of these insufficient fund checks, and there were many and many of them as the evidence here will show you, and the aggregate amount of which checks, as the evidence here will show you, was considerable. I believe the evidence will show you that they wrote and put through under this scheme that I have been describing to you here, 342 checks aggregating four and a third million dollars."
Appellants' position is that the foregoing constituted a gross exaggeration, inasmuch as they were charged with the misapplication of only $74,000, and the proof showed a misapplication of no more than $16,000. Most of the discrepancy in amounts, however, lies in the fact that government counsel was referring to the total face amount of the checks involved in the fraudulent scheme which he had been describing to the jury, rather than to the total amount of bank funds misapplied.
Appellee asserts, first, that there is no likelihood that any exaggerated charge which was not proved would have been prejudicial to the defendants, and second, that the amount mentioned in the opening statement was substantially proved. We are in agreement with appellee's first contention; as to the second, we need only say that a sufficient showing has been made in support ...