654 F.2d 538 (9th Cir. 1981), 80-1350, United States v. Pimentel
|Citation:||654 F.2d 538|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Ronald J. PIMENTEL, Defendant-Appellant.|
|Case Date:||June 15, 1981|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Rehearing and Rehearing En Banc Denied Aug. 28, 1981.
Argued and Submitted March 10, 1981.
Ronald J. Pimentel, in pro per.
Roger Hurt, Oakland, Cal., for defendant-appellant.
John E. Burns, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of California.
Before WALLACE and NORRIS, Circuit Judges, and GRANT, [*] District Judge.
WALLACE, Circuit Judge.
Pimentel was an employee of Roper Investigations, a private investigation firm. Pimentel's co-defendant at trial was John Kenneth Roper, the president of Roper Investigations. Blue Star Meat Company of San Leandro, California, hired Roper Investigations to investigate suspicions that certain Blue Star employees were involved in kickback schemes. Pimentel and another Roper employee, David Webb, installed a monitoring device and tape recorder on the business phones of Blue Star in order to monitor the conversations of employees. The employees were unaware of the monitoring of their phone calls, and never consented to such monitoring. There was apparently no discussion between Blue Star and any Roper employee concerning the legality of the installation of the monitoring devices. Several months after the installation of the equipment, Pimentel informed the president of Blue Star that there was a problem with some of the equipment, and that there might be an investigation. Subsequently, the equipment was disconnected and removed.
Another client of Roper's was the Big B Lumberteria in Oakland. The management at Big B suspected that certain of its employees were engaged in the theft and sale of Big B's lumber. Initially, Pimentel suggested that he and other Roper employees should pose as customers and attempt to induce Big B employees to engage in illicit sales. After this program proved unsuccessful, Pimentel suggested monitoring the yard employees' phone line. Pimentel assured the Big B management that such monitoring would be legal. To support this view, he produced a newspaper article reporting
a district court case. The Big B management was apparently convinced of the legality of the monitoring operation. According to Pimentel's apparent understanding of the law, a Big B employee had to make the final connection of the wiretap device to make the installation legal. This was done. The Big B employees were unaware that the phone had been tapped, and never consented to having their calls monitored. The monitoring operation produced results. A taped conversation indicated that a theft was about to occur. The tape was brought to the attention of the Oakland Police Department. An attempted theft did, in fact, occur with the police present. Four persons were arrested.
The FBI began to investigate the wiretaps at Blue Star and Big B. It was the threat of this investigation that caused Pimentel to suggest the removal of the wiretap equipment from Blue Star. In addition, the FBI subpoenaed Roper Investigations' files and records concerning its activities with Blue Star and Big B. Pimentel suggested to Big B employees, after the FBI had inquired about wiretaps there, that they not talk to the FBI about the wiretaps. Further, one of the Big B employees testified that despite Pimentel's initial assurances that the wiretaps were legal, Pimentel had subsequently stated that the monitoring of the conversations was not "kosher."
Pimentel and John Kenneth Roper were indicted for their wiretapping activities at Blue Star and Big B. Webb cooperated with the FBI, and apparently has not been indicted for his part in the wiretap activities. The jury found both defendants guilty.
Pimentel argues that he was deprived of three of the ten peremptory juror challenges to which he is entitled under Rule 24(b) of the Federal Rules of Criminal Procedure. He contends that the application to him of Local Rule 326-1 of the Northern District of California violates his Sixth Amendment right to a fair trial, as explained by our opinion in United States v. Turner, 558 F.2d 535 (9th Cir. 1977).
Pimentel's reading of Turner as having a constitutional basis is erroneous. In Turner, we stated:
Neither the number of peremptory challenges nor the manner of their exercise is constitutionally secured ..., but the peremptory challenge is "one of the most important rights secured to the accused."
Local Rule 326-1 provides for the alternating of peremptory challenges between the government and the defense. 1 It further provides that if either party passes a peremptory challenge, that challenge is waived. In Pimentel's trial, the defense exercised only one of the two challenges to which it was entitled in round two, and in round three passed both of the challenges to which it was entitled. Thereafter, the defense exercised all its remaining peremptories. Although it is not clear from the record whether Pimentel attempted to use the three peremptories that he passed at the close of the Local Rule 326-1 procedure, he complains that he was denied the use of those three peremptories in violation of United States v. Turner, supra.
In Turner, the defendant and his two co-defendants agreed that each would be able to use three of the ten peremptories allotted them under Rule 24(b), and that the final challenge would be exercised jointly. During the voir dire, Turner passed three times and accepted the jury panel as then constituted. After one of Turner's co-defendants exercised one of his peremptories, Turner attempted to use a peremptory challenge to excuse the new member of the panel. The district court refused to permit Turner to exercise a peremptory challenge, holding that Turner had used all of his peremptories by his three passes. We reversed. We held that the method chosen by the district court must not unreasonably restrict the defendant's use of his challenges, and that the district court must give...
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