329 F.2d 899 (9th Cir. 1964), 18467, Fernandez v. United States

Docket Nº:18467.
Citation:329 F.2d 899
Party Name:Anthony FERNANDEZ, a/k/a Tony Fernandez, Burl Elton Dalgliesh and Carl G. Pratt, Appellants, v. UNITED STATES of America, Appellee.
Case Date:March 26, 1964
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 899

329 F.2d 899 (9th Cir. 1964)

Anthony FERNANDEZ, a/k/a Tony Fernandez, Burl Elton Dalgliesh and Carl G. Pratt, Appellants,

v.

UNITED STATES of America, Appellee.

No. 18467.

United States Court of Appeals, Ninth Circuit.

March 26, 1964

Rehearing Denied April 29, 1964.

Page 900

Howard R. Lonergan, Portland, Or., for appellants.

Brockman Adams, U.S. Atty., and John S. Obenour, Asst. U.S. Atty., Tacoma, Wash., for appellee.

Before MADDEN, Judge of the Court of Claims, and HAMLEY and HAMLIN, Circuit Judges.

HAMLEY, Circuit Judge:

Anthony Fernandez, Burl Elton Dalgliesh and Carl G. Pratt appeal from their convictions under various counts of two indictments charging interstate frauds in violation of 18 U.S.C. § 2314 (1958), and conspiracy in violation of 18 U.S.C. § 371 (1958). 1

Interstate frauds were charged in counts 2, 3, 4, 5, 6 and 7 of indictment No. 16845, and in count 1 of indictment No. 16870, all of these being substantive counts. 2 Conspiracy was charged in

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count 2 of indictment No. 16870. 3 Fernandez was charged and convicted on all of these counts. 4 Dalgliesh was charged on counts 5 and 6 of indictment No. 16845, and count 2 of the other indictment. He was acquitted on count 5 and convicted on the other two. Pratt was charged and convicted on count 7 of the first indictment and counts 1 and 2 of the second.

The allegations of the indictments and the evidence tending to support the convictions pertain to a series of timber and banking deals extending from February, 1958 to August, 1962. In the course of these transactions a number of businessmen, companies and banks were defrauded of large sums of money, ranging from five thousand to forty thousand dollars. The methods employed in perpetrating these frauds included the making of false representations, falsification of documents, false impersonation, and the surreptitious placing of documents in the luggage of intended victims. There were also overtones of possible foul play, as two intended victims of fraud, on separate occasions, suffered mysterious accidents and received resulting injuries, one in the wilds of British Columbia and the other in timber land east of Longview, Washington, in each case while in the company or recent company of Fernandez.

Appellants first argue that the trial court erred in refusing to submit the testimony of a co-defendant, Joseph Delay, to the jury. 5 This has reference to the fact that after appellants and the other defendants except Delay had rested, and their cases had been submitted to the jury, Delay, who was being tried to the court without a jury, took the witness stand and testified in his own defense.

When counsel for appellants learned of this, at a time when the jury was still out, they moved for a mistrial on the ground that evidence was received at the trial in the absence of the jury and without notice to appellants. An additional ground advanced in support of this motion was that the Government, although knowing Delay to be innocent, had deliberately indicted him so that he could not be called as a witness on behalf of appellants. The motion was denied.

Alternatively, counsel for appellants moved that appellants' cases be reopened to hear Delay's testimony. Pointing out that they could not have called Delay as a witness, appellants argued that now that Delay had voluntarily testified, his testimony should be available to them.

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Upon inquiry by the court it became evident that some of appellants' counsel would have been content to have Delay's testimony read to the jury, while others thought Delay should testify in person before the jury and be subject to cross examination. Another complication arose from the fact that the cases against appellants had been submitted to the jury the previous day and that the foreman of the jury had reported late that evening that the jury had come to a decision on some of the counts. Counsel for appellants indicated that, in view of this circumstance, it would be necessary to examine the jury on voir dire to determine if they would be able to set aside their tentative determinations in connection with the consideration of Delay's testimony. This alternative motion was denied.

After the convictions were obtained appellants moved for a new trial, urging as one ground, the reception of Delay's testimony in the absence of the jury. This motion was also denied.

The arguments advanced by appellants with regard to Delay's testimony bring into question the correctness of the court's rulings in denying all of these motions.

Delay was tried jointly with appellants and the other defendants up to the time that appellants and the other defendants rested. His counsel joined the other counsel in voicing objections, participated actively in the cross examination, engaged in voir dire examination, and offered exhibits. Nevertheless, and notwithstanding the fact that the motions of Delay and appellants for complete severance, made before the trial and renewed at the end of the evidence, had been denied, there was a severance in the limited sense that Delay's case was to be submitted to a different fact-finder, the judge instead of the jury. 6

This distinction was preserved throughout the trial. At the outset it was made clear to all counsel that Delay was being tried to the court. The jury was also so instructed. Opening statements were made at the beginning of the trial on behalf of each appellant, but Delay was permitted to reserve his opening statement. Appellants rested without putting on any case knowing that Delay, who had not up to then put on any case, was not resting.

There were other circumstances indicating that counsel for appellants were aware that Delay would go forward with a defense after appellants' cases had been submitted to the jury. During the course of the trial counsel for appellant Pratt objected to the reception of evidence concerning an interview which a Government agent had had with Delay, on the ground that 'this should be reserved for a later time since it isn't relevant to any inquiry that the jury will have.' During a colloquy between court and counsel as to the time counsel for appellants would require for closing argument, and at other times, the court made it clear that following the submission of appellants' cases to the jury, Delay would present his defense.

The record does not indicate that appellants or their counsel were aware that Delay would personally testify in his own defense. But they were sufficiently on notice so that they should have inquired of Delay as to his plans in this regard, if his testimony was deemed valuable to them. Despite the close cooperation between counsel for appellants and for Delay throughout the trial, apparently no such inquiry was made. Under these circumstances, appellants are hardly in a position to claim surprise.

Appellants do not, on this appeal, renew the charge that the Government, knowing Delay to be innocent, deliberately indicted him so that he could not be called as a witness on behalf of appellants. Nor is there anything in the record to substantiate such a serious accusation.

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While Delay was acquitted by the judge, he was vigorously prosecuted by the United States Attorney.

Appellants have never charged, nor would the record support such a charge, that the United States deliberately arranged to postpone Delay's testimony until after appellants had rested, so that the jury would not hear it. As before noted, when appellants rested they knew that Delay had not, and that he planned to go forward with his defense. There is no reason to believe that, had they chosen to do so, appellants could not have withheld resting their cases until Delay had completed his. The decision as to when Delay would put on his defense was made not by the Government, but by Delay, and was acquiesced in by appellants.

Therefore, finding no impropriety in the way in which Delay's testimony was received, we hold that the trial court did not err in denying the motion for a mistrial.

The motion to reopen for the purpose of receiving Delay's testimony, made after the jury had appellants' cases already under submission, rested within the sound discretion of the trial court. See Wolcher v. United States, 9 Cir., 218 F.2d 505, 509. Considering appellants' lack of diligence in previously ascertaining whether Delay would testify, the fact that the jury had already reached tentative decisions on some of the counts, and the improbability that Delay's testimony would have been helpful to appellants (to be discussed below), we do not believe that the trial court abused its discretion in denying that motion.

Appellants at no time moved for a new trial on the ground of newly-discovered evidence and, in fact, expressly stated in arguing their post-trial motion for a new trial, that the motion was not based on the theory of newly-discovered evidence. We will nevertheless assume that one of appellants' motions could be so regarded, and will consider whether appellants were entitled to a new trial on this ground.

Delay testified concerning his limited participation, as attorney for Fernandez, in the Belcher transaction dealt with in counts 2 and 3 of indictment No. 16845, the Casteel transaction dealt with in count 7 of that indictment, and the Royal Bank of Canada transaction, dealt with in count 4 of that indictment. All of these matters were also involved in the conspiracy charge set out in count 2 of indictment No. 16870. While Delay's testimony tended to show that his participation in these transactions was innocuous, it did not tend to show that the transactions themselves did not occur, or were innocent in character, or that any of the...

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