Appeal from a judgment of the District Court for the Eastern District of New York, Mark A. Costantino, Judge, convicting appellant, after a jury trial, of conspiracy to violate and violation of the Hobbs Act, 18 U.S.C. § 1951, for his participation in a 1978 robbery of some $6,000,000 of cash and jewelry from the Lufthansa Cargo Building at John F. Kennedy Airport, and of violation of 18 U.S.C. § 659 for the 1976 theft from a foreign shipment of foreign currency from the same building. Appellant was sentenced to concurrent 15 year terms on the Hobbs Act counts and a concurrent 5 year term on the count under 18 U.S.C. § 659. The sole claims on appeal are improper joinder of the 1978 and 1976 charges under F.R. Cr. P. 8(a) and abuse of discretion in failure to grant a severance under F.R. Cr. P. 14. Affirmed.
Before Friendly, Oakes and Newman, Circuit Judges.
In an indictment dated March 2, 1979, in the District Court for the Eastern District of New York, appellant Louis Werner was charged with four counts relating to the six million dollar robbery on December 11, 1978 of currency and other valuables from the Lufthansa cargo area at John F. Kennedy Airport in that district. The first two counts charged substantive violation of and conspiracy to violate the Hobbs Act, 18 U.S.C. § 1951; the third and fourth counts charged theft and possession of goods stolen from a foreign shipment in violation of 18 U.S.C. § 659. A superseding indictment, filed five weeks later on April 6, 1979, added two more counts relating to the theft of $22,000 in foreign currency from the same Lufthansa cargo area on October 8, 1976. Count five in the superseding indictment charged theft of the currency and count six charged unlawful possession, both in violation of 18 U.S.C. § 659. Werner stood trial on this indictment before Judge Costantino and a jury in the United States District Court for the Eastern District of New York, and was convicted of the violations charged in counts one, two, and five.*fn1 The judge sentenced him to two concurrent fifteen year prison terms for the Hobbs Act violations arising out of the 1978 robbery of $6,000,000 and a concurrent five year term for the 1976 violation of 18 U.S.C. § 659 arising out of the 1976 theft of $22,000, and also assessed a fine of $10,000 for each Hobbs Act count and a fine of $5,000 for the violation of 18 U.S.C. § 659. Werner appeals, alleging that joinder of the first four counts with the last two was improper under F.R.Cr.P. 8(a),*fn2 and that the trial judge erred in denying his motion for a severance under F.R.Cr.P. 14.*fn3
Since the particular facts assume critical importance in the disposition of this appeal, we must recount them in some detail. The story begins on October 8, 1976, when a shipment of $22,000 in various foreign currencies arrived at Kennedy Airport on Lufthansa flight 493. The shipment was locked and sealed in one of the blue "val bags" customarily used by Lufthansa in transporting valuables. Werner, a Lufthansa employee since 1968, was responsible for meeting all incoming Lufthansa flights and immediately removing and securing in the cargo building all shipments, like the currency, appropriately designated "valuable" or "important". Werner did meet flight 493 that night and obtained the flight manifest, which indicated the presence of the valuable shipment, but he did not discharge his responsibility as usual. According to statements Werner made to a Lufthansa security officer,*fn4 he was suffering from diarrhea at the time and had to leave the plane twice, and also had to assist in the handling of an animal which had arrived on the flight. The val bag was mistakenly picked up by an employee of Serv-Air, the company hired by Lufthansa to unload planes, and taken to the airport post office. When the employee discovered his error, he returned the val bag, at 11:05 P.M., to its shipping container outside the cargo building, where all four cargo containers from the flight were located. Werner admitted that he walked past these containers shortly after, at 11:15 P.M. They were left unattended until midnight, when the midnight crew brought them inside. When Lufthansa freight handlers conducted the usual inventory of flight 493, they discovered that the val bag had been broken into and that the $22,000 in currency was gone.
Information about Werner's activities after October 8 in connection with the heist was provided at trial by Peter Gruenewald and William Fischetti. According to Gruenewald, a friend of Werner's for some eight years, Werner called him shortly after midnight on October 9 and said he had just stolen $22,000 in foreign currency. Werner went to Gruenewald's home, and Gruenewald agreed to hide the money for Werner and exchange it for American dollars if Werner would give him a percentage. A deal was worked out and Werner gave the money to Gruenewald. When Gruenewald had still not exchanged any of the money ten days later, Werner retrieved it from him and gave it to Fischetti, paying Gruenewald $5,000 for his trouble. Fischetti, a friend of Werner's for four years, testified at trial that Werner had approached him about exchanging the money, and that he had agreed to do this for a ten percent fee. Fischetti was not so timid about exchanging the stolen currency as Gruenewald had been, and completed the necessary transactions by the end of 1976. The jury found Werner guilty of violating 18 U.S.C. § 659 (theft of goods from a foreign shipment) by this transaction and Werner does not dispute there was sufficient evidence to support this.
Two years later the largest armed robbery in American history occurred at the same Lufthansa cargo building. Gruenewald and Fischetti again supplied much of the critical testimony permitting the jury to conclude that Werner was the "inside man" behind the robbery. Both testified that Werner had approached them after the successful $22,000 heist about executing a "bigger score". Discussions progressed until at one point Gruenewald contacted a group of friends to provide the manpower to implement Werner's inside knowledge, but the group eventually decided to back out. Werner and Fischetti had independent discussions about a smaller robbery which Werner called off because of his more grandiose plans with Gruenewald. When Gruenewald proved incapable of recruiting a band of robbers, Werner approached Frank Menna, his bookmaker. Menna put Werner in contact with one Martin Krugman who professed interest in the plan.
The chance for the long mooted "big score" came on Friday, December 8, 1978. A Brinks armored truck drove up to the Lufthansa cargo area to pick up $5,000,000 in currency to be delivered to the Chase Manhattan Bank. Werner's responsibilities included assigning pick-up orders, but he did not assign anyone to deliver the requested shipments to the Brinks guards. When the guards demanded their shipments, Werner explained that he would not clear them without the presence of a supervisor or security officer, admittedly a novel procedure. The guards waited a while longer but eventually had to leave, and the $5,000,000 was left to be picked up after the weekend.
Some time around 3:00 A.M. on Monday morning, December 11, six masked gunmen entered the Lufthansa cargo building and surprised eleven Lufthansa employees on their meal break. The gunmen ordered one employee to disengage the alarm system and open the storage room in which the valuable shipments were kept. They then removed forty boxes containing the $5,000,000 and other boxes containing $1,000,000 worth of jewelry, packed the loot into a black van, and sped off into the night.
According to Gruenewald and Fischetti, Werner told them he had pulled off the robbery and expected $300,000 for his role. Gruenewald was promised $65,000 for his silence and an additional $50,000 if he lost his job. Gruenewald eventually received $10,000 from Werner. Werner's gambling debts were paid off shortly after the robbery, and he discussed with Fischetti the possibility of buying into the latter's taxi business.
There was no charge that Werner was one of the gunmen, but the familiarity of the robbers with the cargo area and Lufthansa procedures left little doubt that an inside man had been assisting the robbers. The Government charged that Werner was this man, the jury so found, and Werner does not challenge the sufficiency of the evidence to support this.
The question of the propriety of joinder under Rule 8 and of refusal to grant relief from prejudicial joinder under Rule 14 are quite different in nature, although some decisions tend to obscure this. The former is a question of law, subject to full appellate review; if the joinder was not permitted by Rule 8, a conviction must be reversed unless the error was harmless.*fn5 In contrast, the grant of relief under Rule 14 lies within the discretion of the trial judge and refusal to sever counts or defendants properly joined under Rule 8 will be reversed only if discretion was abused, see the many cases cited infra.
In seeking to sustain the propriety of joinder of the 1976 and 1978 offenses the Government has chosen to rely solely on the claim that they were "of the same or similar character." Since we deem this ground sufficient, we need not decide whether the case was not also one of "two or more acts or transactions connected together," although we are inclined to think it was. Both crimes involved the theft of valuables from the same place, Lufthansa's cargo warehouse at John F. Kennedy Airport. Both were accomplished by Werner's exploitation of his knowledge of the airline's cargo handling procedures. The success of the first theft stimulated Werner to be on the alert to commit another much larger one. Werner approached his confederates in the first crime to aid him in the second, paid one of them for his silence, and considered investing part of the loot with the other.
Werner's principal argument that the two crimes were not "of the same or similar character" is that the 1976 crime did not involve violence whereas the 1978 crime did. However, Werner's role in both was the same that of the inside master-mind. Moreover, Rule 8(a) is not limited to crimes of the "same" character but also covers those of "similar" character, which means "(n) early corresponding; resembling in many respects; somewhat alike; having a general likeness." Webster's New International Dictionary (2d ed.). As one court has pointed out, requiring too precise an identity between the character of the offenses "would fail to give effect to the word "similar' succeeding the word "same' and thus violate an elementary rule of statutory construction." Edwards v. Squier, 178 F.2d 758, 759 (9 Cir. 1949). Cf. United States v. Weber, supra, 437 F.2d at 333 (rejecting argument that malum in se and malum prohibitum ...