U.S. v. Herbert

• Citation: 698 F.2d 981
• Decision Date: 07 February 1983
• Docket Number: Nos. 81-1740,81-1741,s. 81-1740
• Parties: 12 Fed. R. Evid. Serv. 911 UNITED STATES of America, Plaintiff-Appellee, v. Joseph Anthony HERBERT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John David HERBERT, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 981

698 F.2d 981

12 Fed. R. Evid. Serv. 911

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Anthony HERBERT, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. John David HERBERT, Defendant-Appellant.

Nos. 81-1740, 81-1741.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Oct. 14, 1982.

Decided Feb. 7, 1983.

James Hamilton Kemper, Kemper & Henze, Phoenix, Ariz., for Joseph herbert.

Richard Michael Traynor, Traynor & Herbert, P.C., Chandler, Ariz., for John Herbert.

Susan A. Ehrlich, Phoenix, Ariz., for United States.

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

Before SKOPIL and FLETCHER, Circuit Judges, and SCHWARTZ, ^* District Judge.

SKOPIL, Circuit Judge:

John David Herbert and Joseph Anthony Herbert appeal their convictions of conspiracy to violate the firearm laws contrary to 18 U.S.C. Sec. 371, and of possession, making, and transferring of unregistered machine guns in violation of 26 U.S.C. Sec. 5861(d), (e) and (f). We affirm as to John Herbert and reverse as to Joseph Herbert.

I

Appellant John Herbert, an attorney, and John Davis, a gun dealer, delivered five automatic weapons to Robert Jacob, an ATF informant. These weapons had originally been manufactured as semi-automatics, and had been internally converted to be automatic. The automatic character of the weapons was not obvious; the weapons externally appeared to be legal semi-automatics. Several different transactions took place between John Herbert and Jacob, one of which was videotaped. At the videotaped transaction, John Herbert and Davis were present, as well as John's younger brother, appellant Joe Herbert. Joe Herbert had driven Davis to pick up the weapons, had waited at Davis' house while Davis worked on the guns in another room, and carried the guns into Jacob's house. During the meeting at Jacob's house, both appellants were present while the nature of the weapons was discussed. In particular, John Herbert discussed what to do if apprehended with the automatic weapons by police. Joe Herbert hardly spoke during the videotaped transaction, and left early.

John Herbert and Joseph Herbert were indicted on a 17-count indictment alleging conspiracy to violate the firearm laws contrary to 18 U.S.C. Sec. 371; five counts each of making and aiding and abetting the making, possession and transfer of unregistered firearms in violation of 26 U.S.C. Sec. 5681(d), (e) and (f); and one count of falsification of a federal firearms form in violation of 18 U.S.C. Sec. 922(m). ¹

At trial the government dismissed the count of falsification of a federal firearms form. The trial court granted Joseph Herbert's motion for judgment of acquittal on three counts regarding one of the transferred weapons. The jury found Joseph Herbert not guilty with respect to three counts regarding one automatic weapon, but returned a verdict of guilty on the remaining nine counts regarding three automatic weapons which were transferred during the videotaped transaction. The jury found John Herbert guilty on all 16 counts remaining.

Joseph Herbert was sentenced to two years probation on each count, to run concurrently. John Herbert was sentenced to two years in prison on each count, the sentences to run concurrently.

II

The issues on appeal are:

1. Whether the jury selection plan unconstitutionally excludes Native Americans, and whether the motion to transfer to a different division was properly denied;

2. Whether a comment by the trial court denied John Herbert a fair trial;

3. Whether the trial court's instructions on aiding and abetting and on conspiracy violated the double jeopardy clause;

4. Whether the trial court abused its discretion in denying the motion for a new trial on the basis of newly discovered evidence; and

5. Whether the trial court's instructions that scienter and the factual knowledge of the character of the weapon were not elements of 26 U.S.C. Sec. 5861 were correct statements of the law.

III

The test for determining whether a jury selection process meets the requirements of the fifth and sixth amendment is In order to establish a prima facie violation of the fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which jury are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that the under-representation is due to systematic exclusion of the group in the jury selection process.

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979), quoted in United States v. Berry, 627 F.2d 193, 196 (9th Cir.1980), cert. denied, 449 U.S. 1113, 101 S.Ct. 925, 66 L.Ed.2d 843 (1981).

The test for a constitutionally selected jury is the same, whether challenged under the fifth and sixth amendments of the Constitution or under the Jury Selection and Service Act of 1968, 28 U.S.C. Secs. 1861 et seq. United States v. Brady, 579 F.2d 1121, 1133 (9th Cir.1978), cert. denied, 439 U.S. 1074, 99 S.Ct. 849, 59 L.Ed.2d 41 (1979); Foster v. Sparks, 506 F.2d 805, 816-17 (5th Cir.1975); United States v. Test, 550 F.2d 577, 584 (10th Cir.1976); United States v. Smith, 463 F.Supp. 680, 681-82 (E.D.Wis.1979).

The Jury Selection and Service Act specifically provides for splitting a district into divisions and using only one division's jury wheel for petit juries:

[A]ll litigants in Federal court entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes.

28 U.S.C. Sec. 1861 (emphasis added). A petit jury may be drawn constitutionally from only one division and not the whole district. Ruthenberg v. United States, 245 U.S. 480, 38 S.Ct. 168, 62 L.Ed.2d 414 (1918); United States v. Cates, 485 F.2d 26, 29 (1st Cir.1974). See also United States v. Smith, 463 F.Supp. at 685.

Appellant John Herbert argues that there is a lower percentage of Native Americans in the Phoenix Division than in the Prescott Division, and that the failure to transfer the case to the Prescott Division shows a systematic exclusion of Native Americans. As stated above, it is proper to draw a petit jury from only one division. Appellant made no showing that Native Americans within the single Phoenix Division were systematically excluded. The jury selection plan for the Phoenix Division was therefore constitutional.

Appellant John Herbert also argues that his motion for transfer to the Prescott Division should have been granted. The denial of a motion for transfer should be overruled only if the district court abused its discretion. United States v. Dreitzler, 577 F.2d 539, 552 (9th Cir.1978), cert. denied, 440 U.S. 921, 99 S.Ct. 1246, 59 L.Ed.2d 473 (1979) (motion for change of venue). Fed.R.Crim.P. 18 provides that "[t]he [district] court shall fix the place of trial within the district with due regard to the convenience of the defendant and the witnesses and the prompt administration of justice." This was meant to "vest[ ] discretion in the court to fix the place of trial at any place within the district." Fed.R.Crim.P. 18, Advisory Comm. Notes, 1966 Amendment. In this case almost all of the witnesses, the defendants and attorneys lived in the Phoenix area, and the incidents alleged in the indictment occurred within the Phoenix Division. Thus, the district court cannot be said to have abused its discretion in denying the motion for transfer to the Prescott Division.

IV

In determining whether a defendant was denied a fair trial by a comment of the court, defendant must show prejudice stemming from the comment. United States v. Price, 623 F.2d 587, 593 (9th Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475 (1980); United States v. Panza, 612 F.2d 432, 440 (9th Cir.1979), cert. denied, 447 U.S. 925, 100 S.Ct. 3019, 65 L.Ed.2d 1118 (1980).

While defense counsel was examining appellant John Herbert, an attorney, about his knowledge of the Gun Control Yes, sustained. You're not implying it's too complicated for a lawyer, are you?

                Act, defense counsel asked appellant "how complicated would you say that Act is?"    The prosecutor objected, on the grounds that a legal opinion was asked for.  The court responded
                

Appellant argues that this comment was a direct inference regarding appellant's veracity and his intent to violate the law, and therefore denied him a fair trial.

Defense counsel had been attempting to show that appellant John Herbert, because of the complexity of the Gun Control Act, did not understand what weapons were in violation of the Act. The court's comment was obviously a jocular aside. Further, the court later instructed the jury that it was not to draw any inference from the court's actions in the case. Though the court's unfortunate comment could be construed to mean that because appellant was a lawyer he should have understood the Act, this slight remark by the court could have had only minimal impact on the jury's decision, and thus could not be said to have prejudiced the defendant's opportunity for a fair trial.

V

"The Double Jeopardy Clause of the Fifth Amendment protects a defendant in a criminal proceeding against multiple punishments or repeated prosecutions for the same offense." United States v. Dinitz, 424 U.S. 600, 606, 96 S.Ct. 1075, 1079, 47 L.Ed.2d 267 (1976) (emphasis added) (footnote omitted); see United States v. Wilson, 420 U.S. 332, 343, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232 (1975); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). See also Whitebread, Criminal Procedure 483 (1980).

Appellants claim that the multiple punishments for the conspiracy convictions and the aiding and abetting convictions violated their double jeopardy rights. The offense of conspiracy is separate...