c38:Nos. 80-5172, 80-5173

ALBERT V. BRYAN, Senior Circuit Judge,
dissenting:
I would affirm. The joinder, in my view, was authorized under Fed.R.Crim.P. 8(b), since the defendants “participated ... in the same series of acts or transactions constituting an offense or offenses.” (Accent added) This does not require each defendant’s participation in each act: “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.” Id.
Testimony, apparently believed by the jury, established a “series” sufficient for purposes of Rule 8(b). Maras and Mercier recounted that in the spring of 1977 they, with three other participants including Chinchic, traveled from Ohio to Florida “after” a jewelry store. On the return trip they passed through Wilmington, scouting for stores to burglarize.
As Maras put it, “[A] couple of them looked pretty good,” but according to Mer-cier “[tjhere were some questions that . . . could not be resolved on one — on the Reed’s store.” The party therefore settled on Gibson’s, burglarizing it to provide the expedition’s “expense money.”
However, this was not to be the last act of the series, for as Maras further testified “[W]e was going to come back to them [the other stores in Wilmington, including Reed’s].” Scarcely more than one month later, according to Maras and Mercier, the same group except for Chinchic returned to Wilmington and burglarized Reed’s. The similarity of the two crimes, their proximity in time, and the near-identity of the group carrying them out (indeed, although Chinchic was absent from the second expedition, his previous joint conduct with the perpetrators would have justified a charge of aiding and abetting) support the conclusion that they were constituents of the same “series of acts or transactions.”
As to Melia, the demonstrated connection between the two burglaries settles adversely his claim of misjoinder as well. His alleged offense — facilitating the disposition of the Reed’s proceeds — was unquestionably part of the same “series” as the Reed’s incident, which in turn was linked in a single chain with the Gibson’s break-in.
I would affirm the District Court’s judgments of conviction.

Passage view · GavelSight