U.S. v. Garner

• Decision Date: 19 November 1980
• Docket Number: No. 79-1802,79-1802
• Parties: UNITED STATES of America, Appellee, v. Roy Dalton GARNER, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 758

632 F.2d 758

UNITED STATES of America, Appellee, v. Roy Dalton GARNER, Appellant.

No. 79-1802.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 11, 1980.

Decided Oct. 6, 1980.

Rehearing Denied Nov. 19, 1980.

Burton Marks, Los Angeles, Cal., for appellant.

Samuel Coon, Asst. U. S. Atty., Reno, Nev., for appellee.

Appeal from the United States District Court for the District of Nevada.

Before KILKENNY and FARRIS, Circuit Judges, and BELLONI, District Judge. ^*

KILKENNY, Circuit Judge:

Appellant appeals from an order denying his motion to dismiss a seven count federal grand jury indictment charging him with: (1) violations of 18 U.S.C. § 1343 (fraud by wire); (2) violations of 18 U.S.C. § 1952(a)(3) (interstate travel in aid of racketeering enterprise and use of interstate facility in the aid of a racketeering enterprise).

Appellant filed motions to dismiss the indictment on three grounds: (a) the indictment violated Garner's right to be free from double jeopardy; (b) the indictment violated the Department of Justice's policy recognized in Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960); and (c) there were irregularities in the grand jury proceedings.

Briefly summarized the issues as outlined in the various counts of the indictment are: (1) Count I charges appellant and his accomplices with implementing a marked card system to defraud Harrah's Casino of substantial sums of money, of transporting that money across state lines, and using the telephone to make a call between Reno, Nevada, and Oxnard, California, in aid of the scheme, all in violation of the provisions of 18 U.S.C. §§ 1342 and 1343; (2) Counts II, IV and VI charge appellant and his accomplices with traveling and causing travel in interstate commerce on three occasions to carry on a business activity unlawful under Nevada law and in violation of 18 U.S.C. §§ 1952(a)(2) and (3); (3) Counts III and V charge appellant with using the telephone to make interstate calls in aid of racketeering in violation of §§ 1952(a)(2) and (3), and Count VII charges that one of appellant's accomplices transported stolen money in interstate commerce in violation of 18 U.S.C. § 2314.

ISSUES

(1) Were the denials of the pretrial motions appealable orders?

(2) Should the indictment be dismissed on double jeopardy grounds?

(3) Whether the policy announced in Petite v. United States, supra, requires a dismissal of the indictment.

(4) Whether the district court erred in not ordering disclosure of certain grand jury materials.

DOUBLE JEOPARDY CLAIM

Inasmuch as appellant has not been tried, our initial question is whether the denials of his pretrial motions are appealable orders. Generally speaking, such denials are not final judgments which are appealable. United States v. Griffin, 617 F.2d 1342 (CA9 1980). However, when a claim of double jeopardy is made in a pretrial motion to dismiss, the denial thereof is appealable. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); United States v. Solano, 605 F.2d 1141 (CA9 1979). Consequently, we are in a position to respond to appellant's double jeopardy claim. The claim, in our opinion, is without merit.

To support this claim, the appellant relies on an earlier trial and conviction in violation of 18 U.S.C. § 1343 (wire fraud). He had used what is known to the trade as a "blue box" to enable him to place undetected long distance telephone calls which defrauded the Nevada Bell Telephone Company. Appellant argues that because his use of the telephone on two occasions in aid of the scheme to defraud Harrah's, which is the basis of Counts III and V of the indictment, also served to support his earlier "blue box" conviction, his constitutional right not to be subject to double jeopardy was violated. We disagree. His earlier conviction was for defrauding the telephone company. Here he is charged with an entirely different offense, using the telephone in aid of the racketeering scheme. Although both offenses undeniably involved common facts the use of the telephone the appellant has not thereby established that the rights conferred upon him by the double jeopardy clause have been violated.

In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the Supreme Court stated that "The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Surely this does not mean that whenever there exist any common facts between the facts supporting an earlier conviction and those which form the basis for a subsequent prosecution the second prosecution is barred by the double jeopardy clause. See also, United States v. Rone, 598 F.2d 564 (CA9 1979).

Under Counts III and V, brought under § 1952(a)(3), the government must prove the use of the telephone with the intent to aid an unlawful activity. The unlawful activity involved herein is a business enterprise involving gambling i. e., the scheme to defraud Harrah's Casino. Under § 1952(a)(3) the government must clearly prove facts that were unnecessary to support the earlier conviction. Under the earlier § 1343 charge the government was required to prove the use of the telephone to aid a scheme to defraud the telephone company. The use of the telephone for that purpose was not necessary to sustain the § 1952(a)(3) conviction. We conclude that there is no merit to appellant's double jeopardy claim.

JUSTICE DEPARTMENT POLICY

Appellant argues that he is entitled to the protection of the Justice Department's policy recognized in Petite. In Petite, the Supreme Court, at the request of The Solicitor General, remanded a case to the district court with instructions to dismiss the indictment on the ground that it was the policy of the Justice Department not to prosecute a federal case where there has been a state prosecution for substantially the same act or acts unless, for compelling federal interest, The Attorney General recommends prosecution. In the instant case, appellant had been indicted in a Nevada state court for card cheating in violation of a Nevada statute. This indictment was later dismissed. Appellant argues that Petite requires the dismissal of the present prosecution.

Appellant's argument must be rejected. We have said that "Such arguments are not properly the subject of an Abney appeal. Even if the issue were before us, this court has held that a violation of the Petite policy does not compel the dismissal of a federal prosecution." United States v. Solano, 605 F.2d 1141, 1143 (CA9 1979).

ALLEGED GRAND JURY IRREGULARITIES

In his motion to dismiss the indictment on account of the grand jury irregularities, the appellant requested an order: (1) compelling disclosure of the sessions of the grand jury held to consider evidence leading to the indictment returned on April 26, 1979; (2) disclosure of the attendance of the grand jurors at each of the sessions; (3) upon such disclosure to dismiss the indictment upon the ground that it was returned by grand jurors who did not hear, evaluate, or deliberate upon the evidence presented to the grand jury; and (4) upon the further ground that the purpose of the grand jury as envisioned by the Fifth Amendment was defeated by the procedures utilized by the government in obtaining the indictment.

Appellant specifically complains that the jurors who indicted him did not hear the evidence. He claims that one grand jury heard the evidence and did not return a true bill and that there are indications in disclosures made by the government that a major portion of the testimony heard by the indicting grand jury was simply a recapitulation of the case presented to the first grand jury. Additionally, appellant asserts that the summary was submitted by a law enforcement agent who had inherited the case upon the retirement of another agent.

As a threshold matter we must consider whether the order denying appellant's motion to dismiss the indictment because of grand jury irregularities is appealable. Our jurisdiction is wholly statutory and so we must determine whether the order falls within the terms of the applicable statute in this case 28 U.S.C. § 1291.

Section 1291 provides that "The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States.". A final decision has long been regarded as a predicate to federal appellate jurisdiction. The finality requirement reflects the congressional policy to avoid the threats to efficient judicial administration incident to interlocutory or "piecemeal" appeals. And "(a)dherence to this rule of finality has been particularly stringent in criminal prosecutions because 'the delays and disruptions attendant upon intermediate appeal,' which the rule is designed to avoid, 'are especially inimical to the efficient and fair administration of the criminal law.' DiBella v. United States, supra, 369 U.S. 121 at 126, 82 S.Ct. 654 at 657." Abney v. United States, 431 U.S. 651, 657, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977).

The ease with which the finality rule is stated, however, belies the difficulty of its application. The Supreme Court has noted that "(n)o verbal formula yet devised can explain prior finality decisions with unerring accuracy or provide an utterly reliable guide for the future." Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974). Indeed, the Court's efforts to give the rule a "practical rather than a technical construction", Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949), have on occasion led to some rather curious results. See e. g., Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d...