United States of America, Plaintiff-appellee, v. Alonza Ellis, Fred Crawford, and Benjamin Jordan,defendants-appellants, 709 F.2d 688 (11th Cir. 1983)

W. Troy Massey, Montgomery, Ala., for Jordan.

Solomon S. Seay, Jr., Montgomery, Ala., for Crawford.

Donald V. Watkins, Montgomery, Ala., for defendants-appellants.

D. Broward Segrest, Asst. U.S. Atty., Montgomery, Ala., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Alabama.

Before KRAVITCH and JOHNSON, Circuit Judges, and LYNNE^* , District Judge.

LYNNE, District Judge:

Tried jointly under a thirty-six count indictment charging violations of the mail fraud statute, 18 U.S.C. § 1341,¹  each appellant, his motion for severance having been overruled, was convicted under a single count in which he alone was named. This appeal followed. Concluding that there was a misjoinder of defendants, Rule 8(b), Federal Rules of Criminal Procedure,²  we reverse.

To demonstrate the basis for our conclusion, we severely capsulate the record evidence and reasonable inferences viewed in a light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942).

In each of the years included in the indictment, appellants were County Commissioners of Bullock County,³  Alabama. Within his budgetary allowance each commissioner was authorized to requisition materials for performing work in his district. Each month he would check and verify the invoices mailed to the county for his purchases. When the commission as a whole approved the invoices, a check was mailed to the supplier.

In each of such years, Dixie Concrete Pipe Company, Inc., of Tuskegee, Alabama, was the low and successful bidder for supplying concrete pipe in various dimensions to Bullock County. Dixie Pipe was a closely held corporation, of which Clayton C. Venable (Clayton) was President; his son, Clayton Kim Venable (Kim) was Vice-President, and Dan Forbus (Forbus) was a salesman. For a number of years Clayton had followed a practice of tendering to the commissioner who ordered pipe ten percent of the invoice price when payment by the county was received by Dixie Pipe.

The scheme confected by Clayton was simple and unvarying. As payments were received from the county, he would draw a check on the corporation's bank account ostensibly payable to the salesman as a commission in the amount of ten percent of each invoice; direct the salesman to cash the check and deliver the proceeds to him; place the cash in an envelope bearing the number of the ordering commissioner's district and have the envelope hand delivered to such commissioner by the salesman.

The scenario is bizarre. Although at all relevent times Bullock County was Dixie Pipe's captive market, there is no evidence that it sustained economic damage; no evidence that the pipe was defective; no evidence that more pipe was ordered than needed; no evidence that all of the pipe was not devoted to the maintenance of county roads; no evidence that concrete pipe was arbitrarily preferred to metal pipe, and no evidence that the county paid in excess of Dixie Pipe's low bid price. And yet, as found by the jury, the three kickbacks involving the two invoices of September 28, 1978, and the September 27, 1978, invoice were offered by Dixie Pipe⁴  and accepted by the respective commissioners as bribes.⁵ 

A short-handed rendition of the Government's theory is that Dixie Pipe devised a scheme to defraud the citizens of Bullock County, Alabama, of honest public service within the intendment of the mail fraud statute (R.Vol. II, pp. 131-32)⁶  and that appellants knowingly entered a conspiracy to effectuate such scheme. To paraphrase Judge Fay's opinion for the Court in United States v. Nettles, 570 F.2d 547, 551 (5th Cir. 1978), if the evidence showed one large conspiracy with Dixie Pipe as the hub, the three appellants as the spokes, and some interaction between the bribes to provide the rim, then the defendants could have been joined in one indictment. However, "for a wheel conspiracy to exist, those people who form the wheel's spokes must have been aware and must do something in furtherance of some single, illegal enterprise. If not, there is no rim to enclose the spokes." United States v. Levine, 546 F.2d 658, 663 (5th Cir. 1977).

We have combed the record for a shred of evidence from which an inference may be drawn that either appellant was aware that the others were accepting bribes and have found none. Beyond peradventure, the record reveals that appellants did not "participate in the same act or transaction or the same series of acts or transactions constituting an offense or offenses." The record evidence discloses three conspiracies and not one.⁷ 

The joinder of appellants in the same indictment was "inherently prejudicial" and is "completely reviewable on appeal." United States v. Marionneaux, 514 F.2d 1244, 1248 (5th Cir. 1975).

REVERSED AND REMANDED.