U.S. v. Croft

Decision Date05 September 1997
Docket NumberNos. 95-30378,95-30397,s. 95-30378
Parties47 Fed. R. Evid. Serv. 1048, 97 Cal. Daily Op. Serv. 7173, 97 Daily Journal D.A.R. 11,560 UNITED STATES of America, Plaintiff-Appellee, v. Sally Anne CROFT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Susan HAGAN, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

John F. DuPue, United States Department of Justice, Washington, DC, for plaintiff-appellee.

Leslie R. Weatherhead, Spokane, WA, for defendant-appellant Croft.

Steven T. Wax and Colleen B. Scissors, Portland, OR, for defendant-appellant Hagan.

Appeal from the United States District Court for the District of Oregon; Malcolm F. Marsh, District Judge, Presiding. D.C. Nos. CR-90-00146-2-MFM, CR-90-00146-04-MFM.

Before: CANBY, RYMER and KLEINFELD, Circuit Judges.

CANBY, Circuit Judge:

Sally-Anne Croft and Susan Hagan were convicted by a jury of conspiring to murder the United States Attorney for the District of Oregon, a violation of 18 U.S.C. §§ 1111, 1114, and 1117. Croft and Hagan now appeal their convictions, arguing on a variety of grounds that they were denied a fair trial and a full opportunity to confront the witnesses against them. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the convictions.

BACKGROUND

Bhagwan Shree Rajneesh ("Rajneesh") was an Indian mystic who developed a substantial following in Poona, India in the 1970s. In 1981, Rajneesh came to America with a number of his Western followers to found a spiritual community, known as Rajneeshpuram, in Central Oregon. From its inception, the community was highly controversial. The number of Rajneesh's followers living at the community eventually grew to approximately four thousand, with as many as 10-15,000 followers attending annual celebrations there.

Rajneesh's disciples were known as "sannyasins," and a small group of the most trusted among them oversaw the community's business and spiritual operations. Ma Anend Sheela ("Sheela"), Rajneesh's principal secretary and spokeswoman, was in charge of day-to-day operations, and was entrusted with transmitting and executing Rajneesh's orders. Below Sheela were "department coordinators," a group that included appellants Croft and Hagan. Croft was second-in-command of the community and the head of its financial department. Hagan was in charge of construction, heavy equipment, and the community's security force. Four of the five government witnesses--all of whom were indicted or unindicted co-conspirators--also held important positions in the community: David Knapp was the community's mayor; Richard Langford was the security force's weapons expert; Ava Avalos managed Rajneesh's correspondence and assisted Croft; and Alma Peralta was Sheela's aide-de-camp. The fifth government witness, Phyllis Caldwell, was a member of the community. Two other members of the community, who did not appear as witnesses, figure in this appeal. One is Jane Stork, an indicted co-conspirator whom the government unsuccessfully tried to extradite from Germany. The other is Jorg Dauscher, who attended a few of the meetings. He was not indicted for the conspiracy to murder the United States Attorney, but was indicted for a wiretapping offense and remained out of the United States during the trial.

The conspiracy to murder Charles Turner, then the United States Attorney for the District of Oregon, arose as a consequence of a series of legal difficulties that the Rajneeshpuram community encountered in 1984 and 1985. In 1984, the community learned that federal authorities were investigating numerous sham marriages by which members of the community had secured entry into the United States. At about the same time, a former member of the community, Helen Byron, sued the community to collect money she had lent it; a jury awarded $ 1.7 million in compensatory and punitive damages. Immediately Additional meetings involving Croft and Hagan, Sheela, and other key members of the commune followed. Although the testimony of the government's witnesses was not wholly consistent, the witnesses generally agreed that the conspirators formed a "hit team" to kill Turner that included Stork and Hagan, and that Croft was designated to supply the hit team with money for guns and passports. Stork and Caldwell did, in fact, travel to Texas and New Mexico and purchased handguns. Other conspirators engaged in surveillance of Turner, and obtained a photograph of him. The conspiracy then began to unravel. No actual attempt was made on Turner's life. One of the plotters, with approval of others, threw the handguns into a lake. Later several of the conspirators, including Sheela, departed from Rajneeshpuram.

                after the verdict, Sheela told several of her department coordinators that the community would never obtain a fair trial in Oregon and that, if the community were to survive, its members would have to take the law into their own hands.  Later, during a meeting attended by Croft, Hagan, Stork, Langford, and other members of the Rajneesh community, Sheela stated that it would be necessary for them to assassinate certain of the community's enemies, including Turner. 1  Hagan made a speech to the group at that meeting in which she told the others "we have to do something here.  We have to support Sheela."   She said that she was going to run the meeting "so that everyone knows that Sheela isn't forcing us to this, that everyone is taking responsibility on their own."
                

The conspirators, including Croft and Hagan, were indicted in May 1990, after Avalos revealed the conspiracy to state and federal law-enforcement officials. Knapp, Avalos, Langford, Peralta, and Caldwell all made arrangements with the government to testify against Croft and Hagan in exchange for lenient treatment for their crimes. Their agreements required them to testify truthfully and provided that, if they did not keep their bargains, the agreements would be rescinded. Several of the agreements provided that the government retained the exclusive right to determine whether the agreement had been breached. Avalos received complete immunity from prosecution. Knapp was sentenced to two years in prison after pleading guilty to making false statements. Phyllis Caldwell was placed on probation for five years following a plea of guilty to wiretapping. Peralta and Langford served two and three years respectively following pleas of guilty to conspiracy to murder.

Croft's and Hagan's trial lasted nearly a month. The jury deliberated for four days. On the third day, the jury announced that it had reached a verdict as to one defendant, but had "deadlocked" as to the other. The district court then gave the jury a modified Allen charge, and on the afternoon of the following day the jury returned verdicts of guilty against both Croft and Hagan. Croft and Hagan were each sentenced to five years imprisonment. This appeal followed.

ANALYSIS
I. Sufficiency of the Indictment.

Croft and Hagan argue that the district court should have dismissed the indictment because it alleged objects of the conspiracy that did not constitute federal offenses. Count I of the indictment alleged a conspiracy to murder a federal official and was entitled "Conspiracy to Murder the United States Attorney." Paragraph 14 of that Count, however, stated that "[a]mong the enemies of the commune targeted to be murdered were Mr. Turner and Swami Devaraj ... Bhagwan's personal physician." Devaraj is not a federal official; conspiring to kill him, therefore, is not a federal offense. Other non-federal criminal activities were also stated to be objects of the conspiracy.

The indictment does not fail to allege a federal offense. The inclusion of non-federal offenses as additional objects of a federal conspiracy is permissible as long as the indictment Croft and Hagan rely on United States v. Manarite, 44 F.3d 1407 (9th Cir.), cert. denied, 515 U.S. 1158, 115 S.Ct. 2610, 132 L.Ed.2d 854 (1995), and United States v. Pappadopoulos, 64 F.3d 522 (9th Cir.1995). Their reliance is misplaced. In both of those cases, we held that a federal conspiracy conviction could not be upheld when non-federal offenses as well as federal offenses were submitted to the jury as objects of the conspiracy, and it was impossible to determine on which basis the jury convicted. See Manarite, 44 F.3d at 1413-14; Pappadopoulos, 64 F.3d at 528. No such deficiency exists in this case. The district judge carefully confined the trial to the federal offense. He gave the jury a redacted indictment that deleted reference to Devaraj and other extraneous matters, excluded evidence relating to the Devaraj's attempted murder, and made clear to the jury in his instructions that it could convict Croft and Hagan of conspiracy only if it found beyond a reasonable doubt that they had conspired "to help accomplish the murder of then United States Attorney Charles Turner." There was no defect in the presentation of the charges to the jury.

also includes an object that constitutes a federal offense. United States v. Giese, 597 F.2d 1170, 1179 (9th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979). There is no likelihood that the grand jury failed to understand that it was indicting for conspiracy to murder the United States Attorney, as the title to Count I states. The district court did not err, therefore, in refusing to dismiss the indictment on the ground that it contained non-federal offenses.

II. Change of Venue.

Croft and Hagan argue that, in light of the extensive prejudice against the Rajneesh community in Oregon, the district court erred in refusing to grant their motion for a change of venue. 2 Croft and Hagan submitted evidence indicating that huge numbers of (largely negative) stories had appeared in local Oregon media since 1981 concerning Rajneesh and his followers, and introduced opinion polls conducted in 1984, 1992...

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