Don Marionneaux, Hugh Marionneaux, Harold Sykes and Ben Trantham appeal their convictions under an indictment charging the brothers Marionneaux in Count I and Sykes and Trantham in Count II with separate conspiracies to obstruct justice in violation of 18 U.S. *1247 C.A. § 371. Defendants assеrt two meritorious arguments for reversal: first, that a severance should have been granted because the indictment charged separate crimes against separate defendants, improper under Rule 8, F.R.Crim.P; and second, that the district court erroneously instructed the jury, over defendants’ objection, that once the existence of a conspiracy is shown, only “slight evidence” is required to connect a particular defendant with the conspiracy. Accordingly, we reverse.
On October 9, 1973, the Federal Grand Jury for the Middle District of Louisiana returned two counts of an indictment against eleven defendants for conspiracies to obstruct justice. Although each conspiracy had as its alleged objective interference with the criminal prosecution of Edward G. Partin, the mаnner of interference was different in each case and, except for Partin as a common defendant, the conspirators were all different in each count.
Count I charged that two of the four defendants here, Hugh Marionneaux and Don Marionneaux, together with Edward G. Partin, Jerry Thomas, Jeffrey Roy Brasseaux, Joseph Green and Jerry Milli-can conspired with each other and with unindicted co-conspirator Richard Baker and other unknown parties to violate 18 U.S.C.A. § 1503. Count I defined the objects of the conspiracy to be the obstruction of justice by supplying sustenance and transportation to Richard Baker in order (1) to prevent his appear--anee, under a subpoena, before the Federal Grand Jury in the Eastern District of Louisiana and (2) to insure his false tеstimony as a subpoenaed witness in a criminal case pending in the United States District Court for the Southern District of Texas in which Edward Par-tin was the defendant. Count I further charged defendants with committing one or more of eighteen overt acts to effect the objeсts of the conspiracy.
Count II of the indictment charged that the other two of the four defendants here, Harold Sykes and Ben Trant-ham, together with Edward G. Partin, Jack P. F. Gremillion, Jr. and Crockett Carleton conspired with each other and with unindicted co-conspirators, Claude W. Roberson, Mitchell Husser and other unknown parties, to violate 18 U.S.C.A. § 1503. Count II delineated the objects of that conspiracy to be the obstruction of justice by persuading Claude W. Roberson, a subpoenaed witness, not to testify in the Partin criminal case аnd by rendering sustenance and transportation to Roberson to avoid his appearance as a witness at the Partin trial. Count II further charged defendants with committing one or more of seven overt acts to effect the objects of the conspiracy.
After pretrial severance of the other defendants, a motion to sever Count I of the indictment from Count II was filed by the remaining defendants, Hugh Mar-ionneaux, Don Marionneaux, Harold Sykes, Ben Trantham, Crockett Carleton and Edward Partin. Defendants asserted the сonspiracies of Counts I and II to be separate schemes, not subject to join-der in a single indictment under Rule 8(a), F.R.Crim.P. Defendants alleged that Partin was the only defendant common to both counts and that, with or without Partin joined as a defendant, the overlapping evidence of each separate conspiracy would prejudicially influence the jury and subject the other defendants to the risk of conviction upon evidence wholly unrelated to the accusations against them. The district court denied defendants’ motion to sever, but effectively severed Partin from the trial by granting a change of venue from the Eastern to the Western District of Louisiana to Sykes, Trantham, the brothers Marionneaux, and Crockett Carleton. Partin did not move for a change of venue. He was not tried with the others.
Following a five day trial, the jury found all but Crockett Carleton guilty. Defendants’ motions for judgment of acquittal or for new trials were denied. Each was sentenced to imprisonment for three years.
*1248 Misjoinder
Rule 8, F.R.Crim.P., governs the joinder of offenses and the joinder of defendants in the same indictment. Improper joinder under Rule 8 is inherently prejudicial and the granting of a motion for severance, where there has been misjoinder, is mandatory and not discretionary with the district court. United States v. Bova,
Rule 8, F.R.Crim.P., is divided into two subsections. Subsection (a) enumerates offenses which may be joined in one indictment or information:
(a) Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected tоgether or constituting parts of a common scheme or plan.
Subsection (b) provides for the joinder of two or more defendants in the same indictment or information under certain circumstances:
(b) Joinder of Defendants. Two or more defendants may be сharged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in оne or more counts together or separately and all of the defendants need not be charged in each count.
The presence of multiple defendants in the instant case invokes the provisions of subsection (b) of Rule 8, F.R.Crim.P., United States v. Bova,
supra;
Cupo v. United States,
Counts I and II of the indictment charge two separate conspiracies to obstruct justice. The indictment, therefore, does not allege that defendants participated in the “same act or transactiоn.” On appeal, the Government" concedes that the conspiracies are separate, but argues that joinder was nevertheless proper because the two conspiracies were “in the same series of acts or transactions constituting an offense or offenses.” Such is not the case.
A “series” of acts under Rule 8(b), F.R.Crim.P., is something more than “similar” acts. King v. United States,
A review of the facts and record shows' that the offenses were clearly distinguishable, each dealing with a particular witness and tracing completely different physical locations, handled by different co-defendants.
Where, as in the case
sub judice,
there is no substantial identity of facts оr participants between the two offenses, there is no “series” of acts under Rule 8(b).
Cf.
Robinson v. United States,
We note that dеfendants’ pretrial motion to sever Counts I and II of the indictment was premised on Rule 8(a). Because there has been some misapplication of subsection (a) to cases involving the joinder of multiple defendants, see generally 8 Moore’s Federal Practice § 8.06[1] (2d ed. 1975), defendants’ failure to move for severance on the proper basis of subsection (b) is not fatal to their cause on appeal.
We reverse and remand for separate trials on each count.
“Slight Evidence” Instruction
Over defendants’ objection, the district court instructed the jury that
[o]nce the existence of the agreement оr common scheme or conspiracy is shown, however, “slight evidence” is all that is required to connect a particular defendant with the conspiracy.
The court reporter underlined “slight” in the transcript. Defendants argue that this reflects the emphasis put upon this word by the trial court.
In the recent case of United States v. Brasseaux,
In the case аt bar, defendants repeatedly objected to the use of the “slight evidence” language. Under Brasseaux, the district court’s use of the “slight evidence” instruction over defendants’ objection was reversible error.
Other Arguments for Reversal
Defendants’ argument that § 1503 does not involve interferencе with a witness before the grand jury, and therefore, that the facts alleged in the indictment do not state an offense under § 1503 is without merit. In pertinent part, Count I of the indictment charges defendants with conspiring to violate 18 U.S.C.A. § 1503 by influencing and aiding one Richard Baker to avoid tеstifying before a federal grand jury pursuant to- a subpoena. A person who prevents or endeavors to prevent a witness under subpoena from testifying before a federal grand jury obstructs or endeavors to obstruct the due administration of justice in violatiоn of 18 U.S.C.A. § 1503.
See
United States v. Knohl,
Defendants’ assertion that 18 U.S.C.A. § 1503 is unconstitutionally vague as applied to Count I of the indictment is inextricably bound to their argument that the facts concerning a grand jury witness alleged in the indictment do not state an offense under § 1503 and is without merit.
*1250 The final contention on appeal is that the district court erred in failing to direct a partial verdict of acquittal in favor of Hugh Marionneaux on Count I. The substance of this argument is that Marionneaux is entitled to acquittal as a matter of law because he joined the conspiracy after it had already achieved its first alleged objective, the prevention of Baker’s appearance before the grand jury. He does not assert that the second object of the conspiracy, to insure Baker’s false testimony as a subpoenaed trial witness, had been attained by the time he was shown to have joined the conspiracy.
In United States v. Brasseaux,
The indictment did not charge Bras-seaux with personal participation in the two alleged incidents of obstructiоn of justice. It charged him with willfully and knowingly joining with other conspirators whose purpose comprised those acts. . . . We find no warrant in the evidence for appellant’s suggestion that he joined no more than a “lesser” conspiracy that somehow slips through thе interstices of the government’s indictment net.
Once having entered into a common plan with other conspirators, Marionneaux was bound by all acts committed by them in furtherance of the scheme, including those acts committed without his knowledge before he jоined the conspiracy. United States v. Brasseaux,
Reversed and remanded.