U.S. v. Lester, s. 83-1242

Citation749 F.2d 1288
Decision Date18 December 1984
Docket NumberNos. 83-1242,83-1262 and 83-1268,s. 83-1242
Parties, 17 Fed. R. Evid. Serv. 1213 UNITED STATES of America, Plaintiff-Appellee, v. Gary LESTER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Leroy "Obie" McGILL, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. Gary "Geek" LESTER, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Michael D. Howard, Michael Nerney, Asst. U.S. Attys., San Francisco, Cal., for plaintiff-appellee.

Marshall W. Krause, Esq., Krause, Timan, Baskin, Shell & Grant, Larkspur, Cal., Daniel H. Bookin, San Francisco, Cal., for defendant-appellant.

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

Before BROWNING, MERRILL, and SNEED, Circuit Judges.

SNEED, Circuit Judge:

These consolidated appeals follow the government's successful prosecution of Gary Lester and Leroy McGill for violations of 18 U.S.C. Sec. 371 (conspiracy to obstruct justice and to obstruct a criminal investigation), 18 U.S.C. Sec. 1503 (obstruction of justice), and 18 U.S.C. Sec. 1510 (obstruction of a criminal investigation). The jury returned guilty verdicts against both defendants on all counts. Acting under Fed.R.Crim.P. 29(c), the district judge entered judgments of acquittal as to the two substantive counts for Lester and the conspiracy count for McGill. The government appeals from the judgments of acquittal for both defendants. Lester appeals from his conviction on the conspiracy count. We affirm Lester's conviction for conspiracy, set aside the judgments of acquittal as to both defendants, and reinstate the guilty verdicts.

I. BACKGROUND

This case involves a conspiracy to prevent Leslie Brigham from testifying in a federal prosecution of Felix Mitchell, the alleged leader of an Oakland narcotics gang. In April 1983, the Oakland police department arrested Brigham for murder. While in custody, Brigham began cooperating with federal authorities as they prepared to prosecute Mitchell. Mitchell had been arrested in February 1983.

On April 17, 1983, while still in custody, Brigham was approached by Mitchell's attorney. The attorney urged Brigham not to cooperate with the federal authorities. In addition, she showed Brigham a note, authored by Mitchell, which directed him to refrain from testifying against Mitchell or speaking to the Justice Department Strike Force Attorney.

On or about April 15, 1983, Lester met with McGill and others to arrange Brigham's release from jail. This meeting apparently followed up a prior meeting in February 1983, attended by Lester and Mitchell, where Mitchell expressed concern that his own arrest was imminent and that Brigham might cooperate with the authorities. At the April 15 meeting, Lester said that the gang should get Brigham out of jail "because he [Brigham] was going to talk against Felix Mitchell." Accordingly, Lester approved the use of the gang's money for the purpose of securing Brigham's release; he instructed McGill to take $1000 to post as the cash part of Brigham's bail.

Before Lester or McGill could arrange Brigham's release, however, the Oakland police released Brigham into the temporary protection of the FBI. On April 18, 1983, the FBI checked Brigham and his wife into a San Francisco motel. Two days later, the couple left the motel and went to Brigham's sister's home in Oakland. There, Brigham called Tony Mitchell, Felix Mitchell's brother, and left a message that he was at his sister's home. A short time later, Lester called Brigham's sister and found to his surprise that Brigham was there. Apparently frightened, Brigham immediately called the Justice Department Attorney. While he was on the phone, however, Lester, Lester's brother Tony, and Tony Mitchell walked in. Brigham pretended he was talking to someone other Brigham, accompanied by Lester's brother, then went to a motel in Alameda. Lester's brother paid for the room and left Brigham $300 in cash. He told Brigham to wait there until McGill came by in the morning.

than the Justice Department Attorney, and he abruptly cut off the conversation. After some discussion and a telephone conversation with Mitchell, the parties agreed that Brigham should leave town for a time.

McGill met Brigham the next day. The two stayed with their wives at another Alameda motel for three days. Needing money, Brigham and McGill drove to the house of Annie MacDonald, who gave McGill $500.

Brigham, McGill, and their wives then departed for San Diego, where they stayed for roughly three weeks. One of Mitchell's girlfriends paid for the accommodations in cash. While in San Diego, McGill periodically received money from Oakland, which he divided with Brigham. Evidence suggested that Lester's brother sent the money. On returning to Oakland, Brigham was arrested by the FBI.

Lester and McGill were charged by indictment with conspiracy, obstructing justice, and obstructing a criminal investigation. The government's case rested primarily on the testimony of two witnesses: Brigham and Norbert Bluitt, another alleged member of the gang. The jury returned guilty verdicts against both defendants on all counts. The district judge granted Lester's Rule 29 motion for acquittal on the two substantive counts, but he affirmed the conspiracy conviction; the judge acquitted McGill of the conspiracy count, but he affirmed the conviction as to the two substantive counts.

II. ISSUES

The primary issue raised by these appeals is whether 15 U.S.C. Sec. 1503 covers witness tampering of the sort suggested by the facts in the present case. In addition, Lester and McGill dispute whether there was sufficient evidence to convict either of them of the conspiracy count and to convict Lester of the substantive counts. McGill also disputes the applicability of 18 U.S.C. Sec. 1510 (obstructing a criminal investigation) to the conduct charged. Finally, Lester and McGill raise a variety of objections to the presentation of certain evidence by the prosecution and the exclusion of certain evidence offered by the defense and to various alleged instances of prosecutorial misconduct. We shall address each of these issues in the order here stated.

III. APPLICABILITY OF SECTION 1503
A. Statutory Coverage

Both Lester's appeal of his conspiracy conviction and the government's appeal of Lester's substantive count acquittal and of McGill's conspiracy acquittal center on the applicability of 18 U.S.C. Sec. 1503 to witness-related offenses. 1 Lester and McGill contend Prior to the enactment of 18 U.S.C. Sec. 1512, section 1503 prohibited influencing or intimidating "any witness ... any grand or petit juror, or officer in or of any court of the United States" or injuring any of them for discharging their duties in court. The Act removed from section 1503 all references to witnesses and enacted section 1512 to protect witnesses, victims, and informants. The Act, however, left the omnibus provision of section 1503 intact. Lester and McGill argue that the Act evinces a congressional intent to redress all forms of witness tampering under section 1512, leaving section 1503 to remedy only tampering with court officers and jurors. We disagree.

                that by enacting the Victim and Witness Protection Act of 1982, Pub.L. No. 97-291, 96 Stat. 1248, Congress intended to remove witness tampering from section 1503 and to consolidate all such offenses in a new provision, 18 U.S.C. Sec. 1512. 2   The government argues that the omnibus clause in section 1503--which prohibits "endeavors to influence, obstruct, or impede, the due administration of justice"--reaches witness tampering of the type presented in this case
                

As originally enacted, section 1503 had two objectives: " 'It [was] designed to protect witnesses in Federal courts and also to prevent a miscarriage of Justice by corrupt methods.' " Catrino v. United States, 176 F.2d 884, 887 (9th Cir.1949) (quoting Samples v. United States, 121 F.2d 263, 265 (5th Cir.1941)). Undeniably, Congress passed the Act "to strengthen existing legal protections for victims and witnesses of Federal crimes." S.Rep. No. 532, 97th Cong., 2d Sess. 9 (1982), reprinted in 1982 U.S.Code Cong. & Ad.News 2515, 2515. And Congress may well have intended to remove the protection of witnesses from section 1503. It by no means follows, however An examination of the scope of section 1512 and the scope of section 1503 prior to the enactment of section 1512 makes this clear. The witness tampering reached by section 1512 involves the use of force or coercion. Section 1512(a) proscribes knowing use of intimidation, physical force, threats, or misleading conduct to "cause or induce any person to ... be absent from an official proceeding to which such person has been summoned by legal process ...." 18 U.S.C. Sec. 1512(a)(2)(D). With the exception of misleading conduct, which is not alleged in the present case, all of the activities proscribed by the provision involve some element of coercion. Similarly, section 1512(b) prohibits intentional harassment that "hinders, delays, prevents, or dissuades any person from ... attending or testifying in an official proceeding ...." 18 U.S.C. Sec. 1512(b)(1). Although section 1512(b) apparently requires less force or intimidation than does section 1512(a), the gist of the offense is coercive conduct. As the Senate report notes, section 1512(b) "covers any conduct that maliciously hinders, delays, prevents, or dissuades a witness or victim from ... attending or testifying in an official proceeding ... if the conduct is done with intent to intimidate, harass, harm, or injure another person." S.Rep. No. 532, 97th Cong., 2d Sess. 17 (1982), reprinted in 1982 U.S.Code Cong. & Ad.News 2515, 2523 (discussing section 1512(a)(2), the precursor of section 1512(b)) (emphasis added); see also 128 Cong.Rec. H8469 (daily ed. Oct. 1, 1982) (remarks of Congressman Rodino)...

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2 books & journal articles
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