United States v. Malone , 29 F.R.D. 156 ( 1961 )

FREEDMAN, District Judge.

The Government has filed a motion-under F.R.Crim.P. 13, 18 U.S.C.A., to have the indictments against these three-defendants, Thomas Malone, Albert Myers and Nathan Sherman, tried together. They have been separately indicted for (1) knowingly and willfullj engaging in the business of accepting-wagers without having paid the Special Occupational Tax, in violation of 26 U. S.C. § 7262, and (2) willfully failing to pay the Special Occupational Tax before engaging in the business of accepting wagers, in violation of 26 U.S.C. § 7203.

A motion had previously been made to-join the trial of the indictment against Myers and similar indictments against, two others, Brand and Scully. This motion was denied as to Myers and granted as to Brand and Scully, who were later-tried and found guilty.

There is enough diversity in their individual situations and in some of the-evidence admissible against one, but not. against others, that each defendant should be permitted to have the jury determine his guilt or innocence separately from the others. We, therefore, are not satisfied that the interests of justice would best be served by having the indictments against these three defendants tried together.

Order

And now, December 28, 1961, the motion of the United States of America to-have tried together the indictments against the defendants in the above cases is denied.