544 F.2d 353 (9th Cir. 1976), 75-1004, United States v. Pheaster

Docket Nº:75-1004 and 74-3308.
Citation:544 F.2d 353
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Hugh MacLeod PHEASTER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Angelo INCISO, Defendant-Appellant.
Case Date:August 19, 1976
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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544 F.2d 353 (9th Cir. 1976)

UNITED STATES of America, Plaintiff-Appellee,


Hugh MacLeod PHEASTER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,


Angelo INCISO, Defendant-Appellant.

Nos. 75-1004 and 74-3308.

United States Court of Appeals, Ninth Circuit

August 19, 1976

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John Van de Kamp (argued), Federal Public Defender, Los Angeles, Cal., for defendant-appellant in 75-1004.

Joe Reichmann (argued), Los Angeles, Cal., for defendant-appellant in 74-3308.

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Robert C. Bonner, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

Before ELY and WALLACE, Circuit Judges, and RENFREW, [*] District Judge.

RENFREW, District Judge:

Appellants Pheaster and Inciso were tried before a jury in the United States District Court for the Central District of California and were convicted on all counts of a 12-count criminal indictment. Count One charged appellants, together with other unindicted co-conspirators whose names were unknown to the grand jury, with a conspiracy to kidnap and hold Larry Adell for ransom in violation of Section 1201(c), Title 18, United States Code. The remaining eleven counts charged Pheaster with depositing letters in the mail containing both requests for ransom for the release of Larry Adell (Counts Two, Four, Six, Eight, Ten and Twelve) and extortionate threats to injure Larry Adell (Counts Three, Five, Seven, Nine and Eleven), in violation of the first and second paragraphs, respectively, of Section 876, Title 18, United States Code. Inciso was charged with having aided and abetted the offenses charged in Counts Two through Twelve. 1 Judgments of conviction were entered on November 21, 1974. Pheaster and Inciso were each sentenced to seventy years' imprisonment on Counts Two through Twelve of the indictment and to life imprisonment on Count One, with the sentences on Count One to run concurrently with the 70-year terms imposed on Counts Two through Twelve.

The jurisdiction of this Court to review the judgments of conviction below rests upon Sections 1291 and 1294, Title 28, United States Code. In this appeal, Pheaster and Inciso have asserted a large number of errors by the court below. We have considered all of the arguments advanced by appellants and have found no reversible error. Accordingly, we affirm.


This case arises from the disappearance of Larry Adell, the 16-year-old son of Palm Springs multi-millionaire Robert Adell. At approximately 9:30 P.M. on June 1, 1974, Larry Adell left a group of his high school friends in a Palm Springs restaurant known as Sambo's North. He walked into the parking lot of the restaurant with the expressed intention of meeting a man named Angelo who was supposed to deliver a pound of free marijuana. Larry never returned to his friends in the restaurant that evening, and his family never saw him thereafter.

The long, agonizing, and ultimately unsuccessful effort to find Larry began shortly after his disappearance. At about 2:30 A.M. on June 2, 1974, Larry's father was telephoned by a male caller who told him that his son was being held and that further instructions would be left in Larry's car in the parking lot of Sambo's North. Those instructions included a demand for a ransom of $400,000 for the release of Larry. Further instructions regarding the delivery of the ransom were promised within a week. Although the caller had warned Mr. Adell that he would never see Larry again if the police or the F.B.I. were notified, Mr. Adell immediately called the F.B.I., and that agency was actively involved in the investigation of the case from the beginning.

Numerous difficulties were encountered in attempting to deliver the ransom, necessitating a number of communications between the kidnappers and Mr. Adell. The communications from the kidnappers included a mixture of instructions and threats, as well as messages from Larry. Before the kidnappers finally broke off communications on June 30, 1974, Mr. Adell had received a total of ten letters from the

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kidnappers, nine of which were typed in a "script" style and one of which was handwritten. In addition, Mr. Adell had received two telephone calls from the kidnappers, one of which was tape-recorded by the F.B.I. In these communications, the kidnappers gave instructions for a total of four attempts to deliver the ransom, but it was never delivered for a number of reasons, and Larry was never released.

The instructions for the first delivery, set for June 8th, were nullified by the late delivery of the letter containing them on June 9th. The second delivery failed when, on June 12th, Mr. Adell balked at turning over the money without more adequate assurances that his son would be released. The third delivery on June 23d was aborted, apparently because of the kidnappers' awareness that the pick-up site was being monitored. A duffel bag containing the ransom money was thrown into the designated spot, but it was never retrieved by the kidnappers. The fourth and final attempt never really began. On June 30th, pursuant to instructions, Mr. Adell went to a designated hotel pay telephone to await further instructions but was never contacted. No further communications were received from the kidnappers, despite Mr. Adell's attempt to renew contact by messages published in the Los Angeles Times.

When it appeared that further efforts to communicate with the kidnappers would be futile, the F.B.I. arrested appellants, who had been under surveillance for some time, in a coordinated operation on July 14, 1974.


  1. Sufficiency of Count One of the Indictment

    Appellant Pheaster argues that his conviction under Count One of the indictment must be reversed, because that count fails to state a federal offense and is therefore, incapable of supporting his conviction. Although this argument was not raised on appeal by appellant Inciso, it would, if accepted, apply equally to his conviction under Count One.

    Count One of the indictment charges that appellants "did willfully and knowingly combine, conspire, confederate and agree together, with each other, and with other co-conspirators whose names are unknown to the Grand Jury to unlawfully kidnap and hold for ransom Larry Adell, the said Larry Adell having been willfully transported in interstate and foreign commerce following his kidnapping, in violation of Title 18, United States Code, Section 1201." The "natural construction" of the quoted language urged by Pheaster is a charge that "the conspiracy to kidnap (in which appellants were allegedly involved) arose after Larry Adell had been kidnapped and transported in interstate commerce." (Emphasis added.) The advantage to appellants of this construction is that it removes from their alleged involvement in the kidnapping all reference to interstate transportation of the victim, a necessary element of the substantive offense in Section 1201(a) and also of the conspiracy offense in Section 1201(c). 2 Under this interpretation, the

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    grand jury's charge concerning appellants is simply that they conspired to kidnap Larry Adell and to hold him for ransom. Stripped of the allegation concerning interstate transportation, the alleged conspiracy to kidnap Larry from the earlier (hypothetical) kidnappers might constitute a state offense but would lack the requisite jurisdictional element of interstate transportation to convert it into a federal offense.

    Before considering the merits of Pheaster's argument, it is appropriate that we state the standards that guide our decision. We begin with the requirement or Rule 7 of the Federal Rules of Criminal Procedure that an indictment "shall be a plain, concise and definitive written statement of the essential facts constituting the offense charged." Any evaluation of a challenged indictment must also take into account the more fundamental requirements imposed by the Sixth Amendment. The judicial interpretations of those requirements provide the framework for our analysis here.

    A challenge to the sufficiency of an indictment is not a game in which the lawyer with the sharpest eye or the cleverest argument can gain reversal for his client. " 'Convictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused.' " Russell v. United States, 369 U.S. 749, 763, 82 S.Ct. 1038, 1046, 8 L.Ed.2d 240 (1962), quoting Smith v. United States, 360 U.S. 1, 9, 79 S.Ct. 991, 3 L.Ed.2d 1041 (1959). A criminal indictment must, however, perform certain essential functions which are of utmost importance to the protection of persons accused of crimes. The Supreme Court has emphasized that the performance of these functions is not to be compromised. Russell, 369 U.S. at 763, 82 S.Ct. 1038. In Russell the Supreme Court drew on its previous decisions in formulating the criteria to be used in evaluating a challenged indictment:

    "These criteria are, first, whether the indictment 'contains the elements of the offense intended to be charged, "and sufficiently apprises the defendant of what he must be prepared to meet," ' and, secondly, ' "in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction." (Citations omitted.)' " Id. at 763-764, 82 S.Ct. at 1047.

    Although essentially the same criteria apply to indictments charging conspiracies, certain differences do flow from the very nature of the crime of conspiracy. Because "the conspiracy is the gist of the crime" charged in such an indictment, the Supreme Court has held that "it is...

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