Eslaminia v. White, 96-16987

Decision Date18 February 1998
Docket NumberNo. 96-16987,96-16987
Citation136 F.3d 1234
Parties98 Cal. Daily Op. Serv. 1143, 98 Daily Journal D.A.R. 1603 Reza ESLAMINIA, Petitioner-Appellant, v. Theo WHITE, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Gerald F. Uelmen, Law Offices of Ephraim Margolin, San Francisco, California, for petitioner-appellant.

John H. Deist, Deputy Attorney General, San Francisco, California, for respondent-appellee.

Appeal from the United States District Court for the Northern District of California; Saundra B. Armstrong, District Judge, Presiding. D.C. No. CV-95-03985-SBA.

Before: SNEED, SCHROEDER, and BRUNETTI, Circuit Judges.

SNEED, Circuit Judge:

California state prisoner Reza Eslaminia appeals the denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254, challenging his 1988 conviction for conspiracy to commit grand theft and kidnapping, kidnapping for extortion and second degree murder. We have jurisdiction under 28 U.S.C. § 2253.

Eslaminia argues that the jury's consideration of an audio tape containing a police interview of his brother--which was not admitted into evidence--had substantial influence on the jury's decision to convict. He also argues that the district court's decision to suppress potentially exculpatory evidence deprived him of a fair trial.

We hold that the tape recording, which bore on the credibility of key witnesses, was prejudicial because in this case their credibility was the central issue. Accordingly, we vacate the district court's denial of Eslaminia's petition and remand the case with instructions that he be given a new trial.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case concerns the activities of a group of young men known as the "BBC," which has been popularized in the media and in film as the "Billionaire Boys Club." The group was formed in Los Angeles in 1982 by a youthful and charismatic accountant and commodities trader named Joe Hunt and several of his friends, including Dean Karny and Arben Dosti. BBC was bound together by a theory of Hunt's known as the "paradox philosophy," which sanctioned lying, cheating and stealing as necessary and acceptable means to achieve personal and professional goals. Acting on that philosophy, BBC set out to generate income through various business ventures and investments. Start-up funding was obtained by soliciting the members' various wealthy friends and relatives, and a portion was used to obtain elegant townhomes and imported cars for members' use.

An early BBC investor was Ron Levin, a southern California resident, who promised in July 1983 to advance several million dollars, to be invested by Hunt. However, a few months later, Levin admitted that his business dealings with BBC were fraudulent and the millions illusory. Hunt reacted to this news by devising an elaborate scheme to extort money from and kill Levin. In June, 1984, Hunt and another BBC member, Jim Pittman, killed Levin and disposed of his body in a remote area north of Los Angeles. Karny was aware of the plot to kill Levin, and provided Hunt with an alibi for the night of the murder.

BBC's financial affairs deteriorated dramatically after the Levin murder. At the same time, however, Dosti became acquainted with the appellant, Reza Eslaminia. Dosti learned that Eslaminia was the son of an allegedly wealthy immigrant, Hedayat Eslaminia Soon after the party, Hunt, Karny, Pittman and Dosti concocted a plan to extort money from Hedayat. According to Karny, the prosecution's primary witness, they approached Eslaminia with a plan to abduct his father, coerce him into transferring assets which would be disguised as the fruits of legitimate business transactions, and then kill him. BBC members engaged in extensive preparatory work to this end, traveling to northern California to conduct reconnaissance of Hedayat's apartment complex. They also rented a "safe house" where Hedayat could be hidden, as well as a truck and delivery uniforms to be used in the abduction. Karny testified at trial that appellant was an active participant in the plan.

("Hedayat"), a former Iranian government official who had fled to the U.S. after the fall of the Shah. Eager to tap into these supposed family resources, the BBC set out to recruit Eslaminia to work on the group's projects. Hunt and Karny were introduced to Eslaminia at a party on July 7, 1984. After the party, Hunt told Karny that Eslaminia had described his father as very wealthy, but also complained that Hedayat had cut him off from the family fortune. As a result, father and son were estranged. Karny later testified that Eslaminia had claimed Hedayat had $30 million which he had brought from Iran.

According to Karny, BBC members and Eslaminia traveled to Belmont, California, to kidnap Hedayat on July 30, 1984. While Eslaminia and Karny waited outside, Hunt and other BBC members beat Hedayat and locked him inside a large trunk. The trunk was placed in a moving van and driven to Los Angeles. Somewhere in route, Hedayat died. The exact cause of death remains unknown. Hunt disposed of the body by dumping it outside Los Angeles and then attempted to salvage the plan to grab Hedayat's assets by having Eslaminia named conservator of the estate. BBC lawyers obtained a court order to that effect, and with Eslaminia's help attempted over several months to locate and seize Hedayat's assets. In fact, Eslaminia and Dosti traveled to Switzerland in an effort to withdraw money from an account in Hedayat's name. However, no additional deposits were ever located.

In the fall of 1984, several BBC members informed police that Hunt had murdered Levin. Karny, fearful that he would be implicated along with Hunt, contacted police and agreed to testify against the BBC leader and other members. After leading investigators to Hedayat's body, Karny was granted broad immunity. As a result of the details Karny thereafter provided about BBC activities, Eslaminia and Dosti were arrested and charged in connection with Hedayat's death.

At trial, Eslaminia maintained that he had not been party to the conspiracy to kidnap and extort assets from his father. Rather, he claimed that in fact he did not believe Hedayat had great wealth, and so had no motive to participate in the kidnapping scheme. Eslaminia also denied Karny's version of the actual kidnapping, and insisted that he had not participated but had instead spent the weekend at his girlfriend's home. He claimed that he was shocked when Hunt informed him of Hedayat's death, and participated in the search for his father's assets only because Hunt threatened to kill him, his family and girlfriend if he did not cooperate. Thus, the trial primarily turned on the credibility of Karny and Eslaminia with respect to their versions of events.

Eslaminia was convicted in California state court in August, 1987, and sentenced to life imprisonment without possibility of parole. The California Court of Appeals upheld the conviction, as did the district court, denying Eslaminia's petition for habeas corpus.

II. STANDARD OF REVIEW

The district court's decision to deny Eslaminia's petition for habeas corpus is reviewed de novo. Campbell v. Kincheloe, 829 F.2d 1453, 1457 (9th Cir.1987).

III. DISCUSSION
A. The Taped Interview of Eslaminia's Brother

At trial, the prosecution introduced a tape recording of an interview with Eslaminia It is clear that the jury's consideration of the tape is a serious error of constitutional dimensions. 1 Jury exposure to facts not in evidence deprives a defendant of the rights to confrontation, cross-examination and assistance of counsel embodied in the Sixth Amendment. Dickson v. Sullivan, 849 F.2d 403, 406 (9th Cir.1988). Not every constitutional error, however, is grounds for reversal. On collateral review, we must determine whether the constitutional error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 627, 113 S.Ct. 1710, 1716, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). Errors that do not have a "substantial and injurious effect" on the trial's outcome are deemed harmless. Bonin v. Calderon, 59 F.3d 815, 824 (9th Cir.1995).

conducted by police. The tape, with the interview recorded on one side only, was admitted into evidence, and was physically taken by jurors into the jury room during deliberations. Following the verdict, Eslaminia's lawyers learned that the jury had also listened to the reverse side of the tape, which contained comments made by Eslaminia's brother, Ali Eslaminia ("Ali"), also recorded during an interview with a police officer. Ali's interview had not been admitted into evidence, and Ali did not testify at trial.

Eslaminia claims that many of Ali's comments had a "substantial and injurious effect" because they directly impeached his credibility, as well as that of witnesses relied on by the defense, while simultaneously bolstering the prosecution's theory of the case and enhancing the credibility of the key prosecution witness, Dean Karny.

For instance, Ali may be heard on the tape telling police that he "always thought" Hedayat "had a lot of money ... put away somewhere." He also noted that title to property Hedayat owned in Iran was placed in the names of Ali and his other brothers, but that Eslaminia had been excluded from ownership. However, a key element of Eslaminia's defense was that although he had told Hunt and other BBC members that his father was wealthy (ostensibly in order to curry favor with the group), he actually knew that Hedayat had lost his property when the Shah fell from power and was relatively poor. Eslaminia therefore claimed he had no reason to hate his father for cutting him off from the family fortune, which was illusory. As a result, he had no motive to kidnap, extort and murder him. Ali's comments...

To continue reading

Request your trial
64 cases
  • Hernandez v. Martel
    • United States
    • U.S. District Court — Central District of California
    • August 16, 2011
    ...of the rights to confrontation, cross-examination and assistance of counsel embodied in the Sixth Amendment.” Eslaminia v. White, 136 F.3d 1234, 1237 (9th Cir.1998). Not every constitutional error supports the grant of a habeas petition, however. Eslaminia, 136 F.3d at 1237. No “bright line......
  • Rogers v. Dzurenda
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • February 14, 2022
    ...from one to two, could also be cumulative. The determination would turn on how similar the testimony would be. See Eslaminia v. White , 136 F.3d 1234, 1239 (9th Cir. 1998) ("To be truly considered cumulative, there must be an extremely close relationship between the extrinsic evidence and t......
  • Windham v. Merkle
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • November 4, 1998
    ...We review de novo the denial of a state prisoner's petition for habeas corpus pursuant to 28 U.S.C. § 2254. See Eslaminia v. White, 136 F.3d 1234, 1236 (9th Cir.1998). Typically, in reviewing a state trial court's judgment in a habeas corpus proceeding, trial errors affecting constitutional......
  • Mancuso v. Olivarez
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 6, 2002
    ...a "parole search." Gritzmacher's statements were not ambiguous nor cumulative of other evidence adduced at trial. See Eslaminia v. White, 136 F.3d 1234, 1239 (9th Cir.1998) ("[T]o be truly considered cumulative, there must be an extremely close relationship between the extrinsic evidence an......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT