564 F.2d 348 (9th Cir. 1977), 76-2172, United States v. Dunn

Docket Nº:76-2172, 76-2179, 76-2238, 76-2300 and 76-2429.
Citation:564 F.2d 348
Party Name:UNITED STATES of America, Appellee, v. Bruce DUNN, Richard Austin Mandeville, Joseph Harvey Zeligs, Darold Lanier Milligan, Richard Lee Shinafelt, Appellants.
Case Date:November 11, 1977
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 348

564 F.2d 348 (9th Cir. 1977)

UNITED STATES of America, Appellee,

v.

Bruce DUNN, Richard Austin Mandeville, Joseph Harvey Zeligs,

Darold Lanier Milligan, Richard Lee Shinafelt, Appellants.

Nos. 76-2172, 76-2179, 76-2238, 76-2300 and 76-2429.

United States Court of Appeals, Ninth Circuit

November 11, 1977

As Modified Nov. 16, 1977.

As Amended Dec. 14, 1977.

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[Copyrighted Material Omitted]

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James M. McCabe (argued), San Diego, Cal., Howard B. Frank (argued), San Diego, Cal., Peter J. Hughes (argued), of Sheela, Lightner, Hughes & Castro, San Diego, Cal., Charles R. Khoury, Jr. (argued), San Diego, Cal., for appellants.

Daniel K. Green, Asst. U. S. Atty., Terry J. Knoepp, U. S. Atty., Shelby R. Gott, and Stephen V. Pefix (argued), on the brief, Asst. U. S. Attys. San Diego, Cal., for appellee.

Appeal from the United States District Court for the Southern District of California.

Before BROWNING and ELY, Circuit Judges, and EAST, [*] Senior District Judge.

ELY, Circuit Judge:

Appellants Dunn, Mandeville, Zeligs, Milligan, Shinafelt, and others not parties to this appeal, were indicted on four counts of conspiracy and attempt in respect to possession, importation, and intended distribution of hashish, violations of 21 U.S.C. §§ 841(a)(1), 846, 952, 960 and 963. Following a three-week trial and almost two weeks of deliberation, the jury found Zeligs, Shinafelt, Dunn and Milligan guilty on all four counts. Mandeville was found guilty on counts I and III only, those relating, respectively, to conspiracy and attempt to import a controlled substance.

Subsequent to the jury's verdicts, appellants moved for judgments of acquittal or for a new trial, Fed.R.Crim.P. 29(c), 33. The motions were denied. Thereupon, the court entered judgments of conviction and imposed sentences upon all appellants. They now appeal.

The appeal is based, inter alia, upon the alleged insufficiency of the evidence. For reasons hereinafter stated, we have concluded as a matter of law that the evidence was indeed insufficient as to Dunn, Milligan, Shinafelt, and Mandeville; accordingly, we reverse the judgments of conviction as to them. However, we find that the evidence was overwhelming as to the guilt of Zeligs of the offenses with which he was charged, and the judgments against him are therefore affirmed.

I. FACTS

The core of the Government's case, that upon which the indictment was founded, related solely and we cannot emphasize this point too strongly at the outset to the abortive effort by the appellants and others (1) to effect the conversion of certain empty computer cabinets so as to make them suitable for containing and concealing a large quantity of hashish, (2) to transport such

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containers to confederates in Beirut, Lebanon, (3) to have them loaded with hashish in Beirut, (4) to import them into the United States in the guise of computers, and (5) to distribute the hashish so imported within this country. The scheme's success was thwarted when the computer cabinets (hereinafter referred to simply as "computers") 1, along with a ton of hashish and the two confederates, were intercepted in Beirut. The confederates are, or, at the time of the trial, were serving terms of confinement in Lebanon.

Viewing the evidence, as we must, in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 62, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Ramos, 476 F.2d 624, 626 (9th Cir. 1973), cert. denied, 414 U.S. 836, 94 S.Ct. 182, 38 L.Ed.2d 72 (1973), it is clear that the prime movers of this scheme (emphasizing, once again, the only scheme in the indictment) were Zeligs, Hillman, Geiger, and Humphries. 2 As is not altogether unusual in cases of this type, however, the Government cast a wider net, 3 enmeshing Mandeville, Shinafelt, Dunn, and Milligan. Since there was little or no evidence directly connecting those defendants with the computer operation, extensive evidence was adduced by the prosecution in respect to other transactions, concerning oceanographic buoys and transformers, in which their involvement was asserted.

The Government's evidence in respect to buoys and transformers was tendered ostensibly (1) to lend circumstantial proof to the allegation that the hashish secreted in the computers was ultimately destined for the United States and (2) to establish a prior similar course of conduct, or modus operandi, among those defendants involved with the buoys and transformers and those involved with the computers. See, e. g., Nye & Nissen v. United States, 336 U.S. 613, 618, 69 S.Ct. 766, 93 L.Ed. 919 (1949); United States v. Nunez,483 F.2d 453 (9th Cir.), cert. denied, 414 U.S. 1076, 94 S.Ct. 594, 38 L.Ed.2d 483 (1973); United States v. Bonnano, 467 F.2d 14 (9th Cir. 1972), cert. denied, 410 U.S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271 (1973). But the prosecution never established that any criminal conduct occurred or was contemplated with respect to the buoys and transformers despite repeated assurances to the District Court that such proof would be forthcoming. Because the Government failed to connect the buoy and transformer transactions with those forming the basis of the indictment, the court erred in admitting this evidence and then allowing it to remain over repeated objections and motions to strike. 4 This error was so prejudicial that were it not for the obvious guilt of Zeligs in the computer smuggling operation, we would

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feel compelled to reverse as to him also. Cf. United States v. Bonnano, supra, at 17.

Despite valiant efforts by the Government to overcome the force of Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), and its numerous progeny, including our Rocha v. United States, 288 F.2d 545 (9th Cir. 1961), cert. denied, 366 U.S. 948, 81 S.Ct. 1902, 6 L.Ed.2d 1241 (1961) and Daily v. United States, 282 F.2d 818 (9th Cir. 1960), the evidence does not, as we see it, provide the rim for the wheel necessary to bind together the appellants, other than Zeligs, with the single conspiracy charged in the indictment. In fact, there is not even a hub. We are not here dealing with the ordinary claim of variance between an indictment and proof or proof of multiple conspiracies without a common bond. Rather, we here have no proof whatsoever of any criminal conspiracy on the part of those appellants other than Zeligs. In these circumstances we deem it necessary to outline in some detail the evidence and its bearing on the various transactions.

  1. COMPUTERS.

    Following acquisition of the computer cabinets, apparently by Geiger, modifications were deemed necessary. Geiger arranged, early in 1975, for these modifications to be accomplished in the custom metal workshop of one Ali Roushan in Costa Mesa, California. This work consisted of installing square corners in lieu of the original rounded corners by welding and painting them so as more closely to simulate the appearance of operative computers. While this work was progressing, Zeligs and Humphries frequently visited Roushan's premises. Conveniently, a portion of those premises was occupied by a body and fender man, who was able to do a final touch-up, including smoothing the newly-welded edges and painting the computers.

    When the modifications were completed in February, 1975, the computers were transferred to a warehouse in Escondido, California, which was under lease to Mandeville. 5 While located in Mandeville's warehouse, the computers were custom-crated for shipment. In early May, 1975, a rented truck was backed into the warehouse and, by means of a forklift rented by Zeligs under the name "Mandeville Engineering Company," 6 was loaded with the wooden crates housing the computers. At the same time, a white van was loaded with certain materials. Hillman, Geiger, and Zeligs then drove the crates to a public storage facility a short distance away, unloaded them by means of the forklift, and finally deposited them in a rented storage unit.

    Several months later, in early July, Hillman, Geiger, and Zeligs transferred the crated computers from the storage unit to a rented truck by means of a rented forklift and transported them to the premises of an import-export brokerage house in Los Angeles. A member of the export-import firm prepared shipping documents for the shipment of the computers to Geiger and Hillman, in Lebanon. A "G.T.E." (General License Temporary Export) was obtained, indicating anticipated return to the United States, upon representations to the export-import firm by Hillman and Geiger. 7 Shipping tags were placed on the crates and they were then transported by these three appellants to an airline freight terminal where they were unloaded and taken inside the terminal's warehouse for shipment to Beirut. Shortly thereafter, one of the confederates, Geiger, purchased a round trip airplane ticket to and from Beirut.

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    The computers were shipped on July 8. Geiger departed on the following day, July 9. Approximately one month later, Geiger and Hillman were arrested at the Beirut airport 8 as they were attempting to clear the computers out of Beirut. The computers, according to the shipping manifests, were destined for Switzerland. The crates and computers contained therein were indisputably identified as being among those to which we have heretofore referred. They were found to contain about one ton of hashish.

    As previously stated, there can be no reasonable doubt that the principal figures in all phases of the computer transaction were Zeligs, Geiger, Hillman, and Humphries. As to the involvement of the other appellants in the computer transaction, the evidence was as follows:

    1. Mandeville

      Mandeville leased the Escondido warehouse approximately eight months...

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