U.S. v. Murray

• Decision Date: 22 January 1985
• Docket Number: Nos. 83-1253,s. 83-1253
• Citation: 751 F.2d 1528
• Parties: Bankr. L. Rep. P 70,231, 17 Fed. R. Evid. Serv. 506 UNITED STATES of America, Plaintiff-Appellee, v. Robert MURRAY, James Moore, and Susan Watson, Defendants-Appellants. to 83-1255.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1528

751 F.2d 1528

Bankr. L. Rep. P 70,231, 17 Fed. R. Evid. Serv. 506

UNITED STATES of America, Plaintiff-Appellee, v. Robert MURRAY, James Moore, and Susan Watson, Defendants-Appellants.

Nos. 83-1253 to 83-1255.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 13, 1984.

Decided Jan. 22, 1985.

George L. O'Connell, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.

Margaret McKnight, Fresno, Cal., James M. Fallman, Fallman & Janof, Sacramento, Cal., Gerald R. Lewis, Lewis & Grove, Fresno, Cal., for defendants-appellants.

Appeal from the United States District Court For the Eastern District of California.

Before CHOY, HUG, and SCHROEDER, Circuit Judges.

HUG, Circuit Judge:

Pursuant to the second superseding indictment filed June 10, 1983, defendants Robert A. Murray ("Murray"), Susan Watson ("Watson"), and James A. Moore ("Moore") were charged with conspiracy to conceal assets in bankruptcy, in violation of 18 U.S.C. Secs. 371, 152 (1982) ("Count I"). Murray and Moore were individually charged with knowingly and fraudulently transferring and concealing assets from a trustee in bankruptcy to defraud creditors, in violation of 18 U.S.C. Sec. 152 ("Count II, Count III, and Count IV"). Murray was also indicted for destroying documents pertaining to the property and affairs of the bankrupt, Sun Stereo, Inc. ("SSI"), in violation of 18 U.S.C. Sec. 152 ("Count V"); obstructing justice, in violation of 18 U.S.C. Sec. 1503 ("Count VII"); and obstructing a The defendants were tried before a jury. Murray was convicted on all counts charged and sentenced to five years' imprisonment and five years' probation. Moore was convicted on Count I and Count IV and received a probationary sentence. Watson was convicted on Count I and was also placed on probation.

criminal investigation, in violation of 18 U.S.C. Sec. 1510 (1982), ("Count VI").

On appeal, Murray contends that the court erred in refusing to suppress evidence seized from his house, in permitting the Government to impeach his testimony with evidence of a prior felony conviction, in denying discovery of the transcripts of the first grand jury proceedings, and in holding that his convictions for bankruptcy fraud, obstruction of justice, and obstruction of a criminal investigation were supported by sufficient evidence. Moore asserts that he was denied effective assistance of counsel. All defendants claim that there was insufficient evidence to support their convictions for conspiracy. We disagree and affirm the convictions.

FACTS

SSI and its affiliate corporations operated retail stereo outlets in California, Arizona, and Nevada. During late 1980, SSI was reorganizing under federal bankruptcy law. Michael Sannes ("Sannes"), SSI's data processing manager and a former employee of Murray, introduced Murray to SSI's management in an apparent effort to secure a source of capital for SSI. Murray and SSI entered into an agreement whereby SSI agreed to borrow $100,000 (the "Loan") from Watson, who is Murray's step-daughter and business associate, and to lease a computer (the "Computer Lease") from Watson's company. The Loan was to be repaid in 13 weekly installments and was secured by a pledge of 80% of the voting stock in SSI. The Computer Lease stipulated that SSI would pay Murray and Watson $21,000 in stereo equipment as three months' rent. By January 1981, Murray and Watson had acquired over $32,000 in merchandise from SSI.

SSI's financial stability worsened. In January or February of 1981, Murray was elected president of SSI and Watson became the corporate secretary. Together they proceeded to exacerbate SSI's financial difficulties. Murray barred SSI's former president and majority shareholder, Tom Wirth, from the business and appointed Sannes general manager. Despite the warnings of a financial consultant, Murray (1) caused SSI to issue eight checks to Watson in full repayment of the Loan, even though the Loan was not in default; (2) ordered the repossession of the computer and the software from SSI, despite the fact that the lease payments were not in arrears; (3) directed the removal of stereo and video equipment from SSI; and (4) diverted the proceeds realized from the sale of the inventories of two closed SSI outlets to his own account.

On March 10, 1981, SSI was adjudicated bankrupt. Murray was charged with the responsibility of collecting the company's assets, storing the goods, and preparing them for auction, pending the appointment of a trustee. During this time, the defendants removed a large quantity of merchandise from the SSI warehouse and stored it in a warehouse rented by Moore, on the false pretense of delivering the merchandise to the auctioneer, without disclosing these transfers to the trustee. To divert any suspicion that may have arisen by reason of their activities, the defendants attempted to conceal their actions: Watson prepared and filed with the bankruptcy court false proofs of claim against SSI, including a claim for the full amount owing under the Computer Lease, and Murray and Sannes destroyed numerous corporate business records, including SSI's closing inventories, so that the stereo equipment could not be traced to them.

In April 1981, the FBI began its investigation of possible fraud related to SSI's bankruptcy. In the course of its investigation, the FBI executed a search warrant on the warehouse space rented by Moore and discovered a large quantity of stereo and Sometime during the course of the various pending federal investigations, Murray contacted Sannes to warn him not to cooperate in the FBI's investigation of Moore and the tax evasion investigation against Murray. Unbeknownst to Murray, Sannes was carrying a concealed tape recorder. During the initial conversation, Murray instructed Sannes not to speak to the FBI about the removal of the goods from the SSI warehouse. Murray also informed Sannes that he, Murray, had a source at the United States Attorney's Office who would tell him the names of any witnesses against him and that he had paid $10,000 to a reputed "Mafia" attorney for the names of people "that do the things necessary to make the witnesses not witnesses." One week later, Murray met with Sannes, accused Sannes of cooperating with the FBI, and threatened to have Sannes "blown away" if Sannes testified against Murray.

video equipment in its original SSI packaging.

Pursuant to its investigation of Murray for income tax evasion, the FBI executed a search warrant for the business records located at Murray's Squaw Valley, California home. During the search, the agents seized Murray's financial records, as well as a large quantity of stereo equipment contained in boxes displaying the SSI name. The agents telephoned the prosecuting attorney to verify that the merchandise was evidence relevant to the bankruptcy fraud investigation.

DISCUSSION

I. Suppression of the Stereo Equipment Seized From Murray's Home.

Murray challenges the district court's refusal to suppress the stereo equipment found in the basement of his home and seized by IRS agents during the course of a lawful search. The Government contends that the stereo equipment was inadvertently discovered and seizable as evidence of criminal conduct found in plain view.

In the course of a legal search, officers may make a warrantless seizure of objects inadvertently found in plain view, if it is "immediately apparent to the police that they have evidence before them." Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971); United States v. Hillyard, 677 F.2d 1336, 1341 (9th Cir.1982); United States v. Wright, 667 F.2d 793, 797 (9th Cir.1982). Application of the "plain view" doctrine was recently addressed by the Supreme Court in Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502, (1983). The Court reaffirmed its statement in Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980), that "[t]he seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity." Texas v. Brown, 103 S.Ct. at 1540 (emphasis in original). The Court stated that probable cause merely requires

that the facts available to the officer would "warrant a man of reasonable caution in the belief," that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A "practical, nontechnical" probability that incriminating evidence is involved is all that is required.

(Citations omitted.) Texas v. Brown, 103 S.Ct. at 1543. ¹ Under the standard of Brown, the agent who had knowledge of the FBI's investigation of the SSI bankruptcy fraud and who recognized the SSI marking on the boxes, had probable cause to believe that the merchandise might be evidence of a crime committed by Murray. His subsequent actions, designed to confirm his belief, do not affect the legality of

the initial seizure. Murray's motion to suppress was properly refused.

II. Use of Murray's 1966 Felony Conviction For Impeachment Purposes.

Murray was convicted in 1966 for receiving stolen property. At trial, the district court allowed this evidence for impeachment purposes pursuant to Fed.R.Evid. 609(b), which states that convictions more than ten years old are inadmissible impeachment evidence "unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." An erroneous evidentiary ruling will be reversed if a defendant shows that a substantial right has been affected. Fed.R.Evid. 103; United States v. Portillo, 699 F.2d 461, 464 (9th Cir.1982).

As required by Portillo, the district court did articulate "specific facts and circumstances" to support...