U.S. v. Prantil

• Decision Date: 25 June 1985
• Docket Number: No. 84-5024,84-5024
• Citation: 764 F.2d 548
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank G. PRANTIL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 548

764 F.2d 548

UNITED STATES of America, Plaintiff-Appellee, v. Frank G. PRANTIL, Defendant-Appellant.

No. 84-5024.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 2, 1984.

Decided March 29, 1985.

Amended June 25, 1985.

Charles F. Gorder, Jr., Asst. U.S. Atty., argued, Peter K. Nunez, U.S. Atty., Charles F. Gorder, Jr., Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee.

Eugene G. Iredale, San Diego, Cal., for defendant-appellant.

AMENDED OPINION

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

Before FERGUSON and NELSON, Circuit Judges, and JAMESON, ^* District Judge.

FERGUSON, Circuit Judge:

The defendant, a criminal defense attorney, appeals his conviction on eight out of eleven counts alleged in an indictment for the offenses of perjury, 18 U.S.C. Sec. 1623; false statements, 18 U.S.C. Sec. 1001; and being accessory after the fact, 18 U.S.C. Sec. 3. All of the defendant's convictions are predicated on actions he took while representing a criminal defendant, Betty Powell, in a separate criminal prosecution. After a seven-day trial the jury found the defendant not guilty on two counts of harboring a fugitive and perjury. The district court had previously dismissed the misprision of a felony count before the trial began. On appeal, the defendant raises a host of issues which, for the most part, we need not address. Three of the defendant's challenges, however, require reversal of the defendant's convictions for the reasons explained herein.

I. FACTUAL BACKGROUND

The defendant was retained by Ronald Powell to represent his wife, Betty Lou Powell, and her son in a federal criminal prosecution on various drug-related charges. ¹ Mr. Powell had been a previous client of the defendant in unrelated criminal proceedings. After Mrs. Powell and her son were arrested at the Powell residence on April 23, 1982 in connection with the narcotics charges, Mr. Powell, who was also named in the felony arrest warrant, remained a fugitive until his apprehension on August 10, 1982. On the day of his wife's arrest, Mr. Powell telephoned the defendant, Frank Prantil, and retained his services for the criminal proceedings against his immediate family. Throughout Mr. Powell's fugitive status, the defendant periodically telephoned Mr. Powell and met him on at least two occasions.

During their first meeting after the incarceration of Mrs. Powell, Mr. Powell presented the defendant with a partial payment of the retainer agreement and directed the defendant to the whereabouts of other sources of cash in various bank accounts and at the Powell residence. Mrs. Powell, unable to make a $750,000 bond, remained incarcerated until the completion of her criminal trial. She gave the defendant the power of attorney to collect the funds from the various bank accounts. The defendant also retrieved a substantial Mr. Prantil succeeded in obtaining an acquittal on all but four of the fifteen criminal counts leveled against his client Mrs. Powell. During the course of his representation of Mrs. Powell, the defendant also sent his sister-in-law, Malvina Schmidt, to meet the fugitive Ronald Powell for reasons not relevant here. Within the same time frame, the defendant, on several occasions, acted as the conduit for negotiations between the fugitive Ronald Powell and Assistant U.S. Attorney Gorder for Mr. Powell's surrender. During the period when Mr. Powell was a fugitive, the defendant was summoned before a grand jury and questioned by Mr. Gorder concerning his contacts and relationship with Mr. Powell. Three of the defendant's five perjury convictions rest on responses he made to Mr. Gorder's grand jury examination. The remaining two perjury charges and the two false statement counts stem from the events surrounding the defendant's efforts to obtain Mrs. Powell's release on bond pending the appeal from her criminal conviction. For purposes of this appeal, however, we need only discuss the evidence presented on one perjury count.

sum of money from a floor safe at the Powell residence that had been overlooked at the time of the Powell family arrest. Although questions over the capacity in which Mr. Prantil retained custody of these monies (as attorney fees or in bailment for Mrs. Powell) occupied a substantial portion of the defendant's trial, we need not parse the evidence on this subject here. Pursuant to the retainer agreement negotiated by Mr. Powell, the defendant represented Mrs. Powell for the duration of her criminal trial. The case was prosecuted by Assistant United States Attorney Charles Gorder.

One of the defendant's perjury convictions rests on grand jury testimony the defendant gave under questioning by Mr. Gorder regarding a trip to Omaha, Nebraska. In his testimony the defendant stated that he was picked up by a blonde woman at his hotel in Omaha, Nebraska who took him to meet Mr. Powell and then transported the defendant to the airport. The defendant further testified that he did not know the identity of this woman. At trial the government contended that the defendant committed perjury when he denied knowing the name of this woman.

Under the government's theory, the defendant falsely denied knowing the identity of this blonde woman in order to protect the woman from the grand jury's investigation. The government unsuccessfully sought to prove that the blonde woman who met the defendant at his hotel was Malvina Schmidt, the defendant's sister-in-law. The evidence at trial revealed that although the defendant had been met and transported to a different airport by a blonde woman on a different occasion, no one picked up the defendant at his Omaha hotel. The evidence did demonstrate that the defendant eventually met his sister-in-law at a restaurant in the Omaha area. Accordingly, on appeal the government has shifted its perjury allegation by recasting the defendant's denial of knowledge about the name of the blonde woman who met him at his hotel into a denial of "knowing who was with [Mr.] Powell in the Omaha area." In response, the defendant claims his conviction should be reversed because the identity of the woman whom he incorrectly recalled to have met at his Omaha hotel is immaterial to any matters then before the grand jury and thus not perjurious.

II. ISSUES ON APPEAL

The defendant has raised several challenges to his convictions on appeal. We reach only three of his challenges. The defendant's first allegation of error involves the refusal of the trial court to grant a pretrial motion to have the prosecutor, Mr. Gorder, recused from the case so that the defendant could call Mr. Gorder as a witness. The defendant also claims that the prosecutor exceeded the bounds of proper argument during closing argument and the defendant was thereby prejudiced. The final contention of error challenges the materiality of the defendant's allegedly The defendant has also raised a claim of insufficiency of the evidence as to counts seven and eight of the indictment which charged the defendant with violations of the false statement statute, 18 U.S.C. Sec. 1001. In essence, the government presented evidence that the defendant attempted to secure the release of his client Betty Powell through the submission of an appeal bond form that the defendant knew was not authorized by the named bond company. Viewing the evidence in the light most favorable to the prosecution we find the evidence presented sufficient to enable a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Nonetheless, for the reasons discussed in the balance of the opinion, we reverse the defendant's convictions on these and the other counts of the indictment.

perjurious statements regarding the blonde woman at the Omaha airport.

A. The Propriety of a Prosecuting Witness

The prosecutor in this case, Assistant United States Attorney Charles Gorder, was also the prosecutor in the previous trial of Betty Powell. Mr. Gorder not only opposed the defendant in that trial but also conducted the examination of the defendant in both the grand jury and bond proceedings that are the subject of defendant's perjury convictions in this case. Mr. Gorder was also involved in the discussions with the bond agency as to the adequacy of Mrs. Powell's bond collateral which gave rise to the defendant's false statement convictions. Finally, on several occasions Mr. Gorder negotiated directly with the defendant for the surrender of Ronald Powell, the fugitive whom the defendant was accused of harboring and giving aid. Thus, although he never took the stand, Mr. Gorder was a witness to, and indeed a participant in, some aspect of all of the events alleged in the indictment.

The defendant was charged and convicted of being an accessory after the fact to Mr. Powell's criminal offenses in that the defendant did "receive, relieve, comfort and assist Ronald Lee Powell in order to hinder and prevent his apprehension, trial and punishment," in violation of 18 U.S.C. Sec. 3. During trial the principal defense asserted by the defendant to this count, and the harboring a fugitive charge, revolved around the defendant's efforts to successfully negotiate Mr. Powell's surrender with Mr. Gorder. Rather than harboring or assisting Mr. Powell, the defendant contended he was actively conducting the ongoing negotiations for Mr. Powell's timely surrender through direct communications with both Mr. Gorder and Mr. Powell. Obviously, this defense hinges substantially on the availability of evidence detailing the defendant's role in these surrender negotiations.

Both before and during the trial defense counsel unsuccessfully moved the court to recuse the prosecutor to enable the defense to call him as a witness. After final argument the defendant moved for a mistrial because the prosecutor's remarks "...