Lee Roy Leach, Appellant, v. United States of America, Appellee, 402 F.2d 268 (5th Cir. 1969)

Appellant was jointly indicted with James Nathan Thrasher for violating statutes relating to distilled spirits. The first count charged both with a conspiracy. Counts two and seven charged appellant with separate substantive violations. Count three charged appellant and Thrasher jointly with a substantive violation. Counts four, five and six charged Thrasher with substantive violations.

Each defendant filed motions for severance prior to trial and these were overruled. At the close of the government's case a motion for judgment of acquittal was granted as to both defendants on the conspiracy count and as to appellant on Counts three and seven. This left Count two standing against him and Counts three, four, five and six standing against Thrasher. Both defendants renewed their motions for severance and for mistrials. The court granted Thrasher's motion for severance by declaring a mistrial as to him.

The case proceeded against appellant on Count two, possession of nontax paid liquor. Having been convicted, he now contends that the trial court erred in overruling his motion for severance and for mistrial. He asserts that the evidence adduced against Thrasher prejudiced him under the circumstances. We find no merit in this contention. Whether the court should have granted severance as to appellant was a matter of discretion. Garcia v. United States, 5 Cir., 1963, 315 F.2d 679. There is no basis for finding an abuse of discretion. Cf. Schaffer v. United States, 362 U.S. 511, 80 S. Ct. 945, 4 L. Ed. 2d 921 (1960). Here the court was at pains to give appropriate cautionary instructions and we think these were sufficient.

Affirmed.