455 F.2d 728 (9th Cir. 1971), 71-1165, United States v. Ryan

Docket Nº:71-1165.
Citation:455 F.2d 728
Party Name:UNITED STATES of America, Appellee, v. Raymond J. RYAN, Appellant.
Case Date:December 13, 1971
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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455 F.2d 728 (9th Cir. 1971)

UNITED STATES of America, Appellee,

v.

Raymond J. RYAN, Appellant.

No. 71-1165.

United States Court of Appeals, Ninth Circuit.

December 13, 1971

As Modified on Denial of Rehearing March 7, 1972.

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Herbert J. Miller (argued), Raymond G. Larroca, Nathan Lewin, of Miller,

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Cassidy, Larroca & Lewin, Washington, D. C., Orrick, Herrington, Rowley & Sutcliffe, San Francisco, Cal., for appellant.

Marvin R. Loewy (argued), Philip R. Michael, of Dept. of Justice, Will Wilson, Asst. Atty. Gen., Crim. Div., Washington, D. C., Robert L. Meyer, U. S. Atty., David R. Nissen, Asst. U. S. Atty., Los Angeles, Cal., Philip R. Michael, Asst. U. S. Atty. (argued), James L. Browning, U. S. Atty., San Francisco, Cal., for appellee.

Before WEICK, [*] HUFSTEDLER and TRASK, Circuit Judges.

WEICK, Circuit Judge:

Appellant Ryan was convicted by a jury in the District Court of the offenses of obstruction of justice (18 U.S.C. § 1503) and of violation of 18 U.S.C. § 2. The conspiracy count in the indictment was dismissed. Ryan was sentenced to three years' imprisonment.

In his appeal, he assigns many alleged errors of law occurring at his trial, but his principal claim is that the Court erred in denying his several motions for judgment of acquittal.

On July 26, 1967, the Clerk of the District Court issued three identical duces tecum subpoenas calling for the appearance before the grand jury of Ray Ryan, Helen Hansen and Frank Hayden, c/o El Mirador Hotel, Palm Springs, California, on July 27, 1967, at 9:30 o'clock A.M. and to bring with them all records, papers and documents pertaining to the operation of Mawingo, Ltd., d. b. a. Mount Kenya Safari Club, Nanyuki, Kenya, East Africa. 1 The subpoenas bore the name and telephone number of the United States Attorney and his assistant.

The issuance and service of the subpoenas have an interesting background. Assistant United States Attorney David R. Nissen, on July 26, 1967, received a telephone call at his Los Angeles office, from an attorney (whose name he could not recall) in the Department of Justice in Washington, who requested that the subpoenas be issued. The Department of Justice attorney dictated over the telephone to Nissen's secretary, the duces tecum portions of the subpoenas.

Nissen testified that he assigned the matter to the Robertson Grand Jury, so-called, because of the name of its foreman. Nissen instructed his secretary to furnish the subpoenas to I.R.S. agents for service. 2

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Chief Deputy Clerk Drew testified that the issuing clerk signs the subpoena, and affixes the seal of the Court at the time of its issuance.

Special Agent Hines of I.R.S. picked up the subpoenas upon instructions from his superior, and then departed for Riverside, California, where he met Special Agent Berry, who took possession of the subpoenas. They proceeded to Palm Spring, arriving there about 5:45 P.M., but they were unable to locate the witnesses and did not serve the subpoenas. Berry telephoned Nissen, who advised him to change the return date on the subpoenas to July 28. Berry crossed out the date of July 27 and wrote at the top of it, July 28, and initialed the change. 3 The subpoenas were served on the following morning, July 27th, around 10:00 o'clock. Arrangements were then made in Washington by counsel for the Government and the witnesses, for delivery of the documents to I.R.S. Agents. he excused the grand jury from coming in on July 28.

Some time during the afternoon of July 27, Ryan inquired of his secretary whether she had carried out the instructions which he had given her some months previously, about the club records. 4 She advised him that she had started the work but had not finished it. Ryan told her to complete it, which she did by changing about twelve cards in the latter part of the afternoon or early evening of July 27.

On the following day July 28, Special Agent Davis, acting under authority of his supervisor, went to Palm Springs and met with Helen Hansen. She prepared a typewritten receipt on IRS Form 399, "Document Receipt", furnished to her by Berry, who signed it. Hansen then turned over to Berry two boxes of 3"' x 5"' index cards and a large drawer of records and folders. These records were kept in the IRS office in Los Angeles until August 4, 1967, when they were returned to Hansen at the request of Ryan's counsel, after they had been microfilmed.

Ryan endeavored to prove that IRS custody of the records had nothing to do with the grand jury, but the Court barred such evidence.

Pursuant to the second subpoena, the records were flown to Los Angeles for return to the grand jury. Hansen was called to testify before the grand jury on August 16, 1967, but by agreement of counsel she was not to testify about any change in the records. The so-called Robertson Grand Jury was discharged on September 27, 1967. More than fourteen months elapsed before another grand jury indicted Ryan.

Several things are noteworthy concerning the procedures in connection with the Robertson Grand Jury. There is no proof that it knew anything about the issuance of the three subpoenas on July 26th, or about the alteration in the return dates, or the service of the subpoenas by Special Agents of I.R.S., or

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the arrangement for delivery of the subpoenaed documents to the Special Agents, or the excusing of the witnesses from appearance. The arrangements for excusing the witnesses and for delivery of the records to I.R.S. were made in Washington by counsel for the Government and the witnesses. Thus, by means of grand jury subpoenas, the I.R.S. obtained the records which it was unable to secure by an administrative subpoena.

After the verdict, Special Agent Glen Johnson testified at a hearing on a motion for judgment of acquittal that he learned of the alleged destruction of the records on July 25, 1967, or on the morning of July 26, 1967, and immediately notified Joyce of the Department of Justice in Washington. A fairly good inference may be drawn that this precipitated the issuance of the subpoenas for records, a portion of which had already been altered or destroyed.

Despite the Government's knowledge of the destruction of the records prior to the issuance of the...

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