U.S. v. Vaccaro

• Decision Date: 29 April 1987
• Docket Number: 85-1170,85-1161,85-1195 and 85-1198,Nos. 85-1153,85-1180,85-1179,85-1154,s. 85-1153
• Citation: 816 F.2d 443
• Parties: 22 Fed. R. Evid. Serv. 1570 UNITED STATES of America, Plaintiff-Appellee, v. Sandra VACCARO, John Vaccaro, Michael Brennan, Paul Bond, Norman Alvis, Stephen Labarbera, Dorothy Snider, and William Cushing, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 443

816 F.2d 443

22 Fed. R. Evid. Serv. 1570

UNITED STATES of America, Plaintiff-Appellee, v. Sandra VACCARO, John Vaccaro, Michael Brennan, Paul Bond Norman Alvis, Stephen Labarbera, Dorothy Snider and William Cushing, Defendants-Appellants.

Nos. 85-1153, 85-1154, 85-1161, 85-1170, 85-1179, 85-1180,

85-1195 and 85-1198.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 16, 1987.

Decided April 29, 1987.

Donald C. Hill, Reno, Nev., for plaintiff-appellee.

Dominic P. Gentile and David Z. Chesnoff, Las Vegas, Nev., John L. Conner, N. Patrick Flanagan, III, James F. Jacques, William M. O'Mara, Mark Mausert and Fred Hill Atcheson, Reno, Nev., David Weiner and Thomas R. Van Noord, Cameron Park, Cal., for defendants-appellants.

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

Before HUG, and ALARCON, Circuit Judges, and STEPHENS, Jr., ^* District Judge.

HUG, Circuit Judge:

This case involves charges of interstate travel to conduct unlawful activity in the State of Nevada in violation of 18 U.S.C. Sec. 1952(a)(3) (1982) and interstate transportation of money obtained by fraud in violation of 18 U.S.C. Sec. 2314 (1982). Some of the defendants were charged with aiding and abetting these offenses in violation of 18 U.S.C. Sec. 2. This case also involves charges of conspiracy to violate 18 U.S.C. Sec. 2314 and conspiracy to defraud the United States in violation of 18 U.S.C. Sec. 371 (1982).

The indictment charged that 11 named defendants participated in an unlawful business enterprise in Nevada to cheat Nevada hotels and casinos by rigging slot machines to pay jackpots. The indictment charged that this involved interstate travel and interstate transportation of the money fraudulently obtained. The conspiracy charged was that some of the defendants conspired to make false reports to the Internal Revenue Service concerning the money so obtained.

Three of the defendants pled guilty and the remaining eight defendants were tried in a joint trial. Six of the eight defendants were charged with the conspiracy. All of the defendants were charged with several counts relating to particular incidents involving unlawful interstate travel or transportation and the rigging of jackpots at Nevada hotels or casinos. All defendants were convicted on all counts submitted to the jury.

The defendants raise numerous issues.

I. FACTS

The evidence presented by the prosecution showed the following activity. The defendants were part of a scheme to cheat slot machines in which they rigged a large number of progressive slot machines by physically manipulating the slot machine reels to align winning combinations. They played various roles in this scheme to collect the rigged jackpots and avoid detection. For example, John Vaccaro and William Cushing scouted casinos to find favorable targets and to check the security systems. Ross Durham, a government witness who pled guilty prior to trial, would examine the machine to determine whether it could successfully be rigged. Once they determined that the jackpot could be "taken," Vaccaro would decide how many people would be required to rig the machine and collect the progressive jackpot.

A jackpot would be rigged by using a "collector," a "mechanic," "blockers," and "lookouts." A collector was usually recruited from outside the group and was given money to play the slot machine until the conditions in the casino were favorable for rigging the machine. While the collector was playing the slot machine, the lookouts would mingle about the casino and watch for casino personnel and were generally responsible for giving the "all clear" signal. The blockers played at machines nearby the targeted machine and gathered around the collector when the "all clear" signal was given.

When all appeared clear, the mechanic would go to the machine, open its door with a key or jam a wire through the side, and manipulate the reels to line up a jackpot. The jackpot would register and the entire group except the collector would leave the immediate area. The collector would then act excited, as if he or she had legitimately won, collect the money from the casino, and fill out the W-2-G tax form required by the Internal Revenue Service for jackpots over $1,200. Finally, the money would be divided. The collector received a slightly larger share to cover income tax liability and was advised about how illegally to avoid paying income taxes.

The interstate travel counts of the indictment involved thirteen separate slot machine cheating incidents in which interstate facilities were used to transport collectors from California to Nevada and to transport the proceeds of the incidents from Nevada to California. The conspiracy count alleged those thirteen incidents and four other cheating incidents as overt acts.

II.

JOINDER AND SEVERANCE

A. Joinder of Defendants

The contention is made in this appeal that charges against the multiple defendants were improperly joined in the same indictment. Joinder is an issue of law reviewed de novo. United States v. Friedman, 445 F.2d 1076, 1082 (9th Cir.), cert. denied, 404 U.S. 958, 92 S.Ct. 326, 30 L.Ed.2d 275 (1971). Joinder of two or more defendants in the same indictment is governed by Fed.R.Crim.P. 8(b), which provides:

Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

In this case, it is clear that the defendants were alleged to have participated in the same "series of acts or transactions." Whether the separate acts charged constitute a "series of acts or transactions" depends upon their being sufficiently related to each other. United States v. Guerrero, 756 F.2d 1342, 1345 (9th Cir.), cert. denied, 469 U.S. 934, 105 S.Ct. 334, 83 L.Ed.2d 270 (1984); United States v. Ford, 632 F.2d 1354, 1371 (9th Cir.1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1399, 67 L.Ed.2d 369 (1981). Here, the transactions were all part of a continuing scheme to travel to Nevada to rig jackpots, to take the money back to California, and to work out a method by which the "collector" would not have to pay the full income tax due on the money received.

B. Severance

Even though charges involving two or more defendants may have been properly joined, a defendant may move for severance under Fed.R.Crim.P. 14. Rule 14 provides:

If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires....

The rule requires that a defendant must show prejudice to obtain a severance. Since some prejudice is inherent in any joinder of defendants, if only "some" prejudice is all that need be shown, few, if any, multiple defendant trials could be held. See Ford, 632 F.2d at 1373; United States v. McDonald, 576 F.2d 1350, 1355 (9th Cir.), cert. denied, 439 U.S. 830 and 927, 99 S.Ct. 105 and 312, 58 L.Ed.2d 124 and 320 (1978). Judicial economy justifies reliance on the jury to follow the instructions of the court that segregate the evidence and limit the applicability of the evidence to each defendant. The primary concern is whether the jury will be able to segregate the evidence applicable to each defendant and follow the limiting instructions of the court as they apply to each defendant. The district court has wide discretion in ruling on a severance motion. Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 165, 99 L.Ed. 101 (1954).

To obtain a reversal, a party must show that "joinder was so prejudicial that it outweighed the dominant concern of judicial economy." United States v. Douglass, 780 F.2d 1472, 1478 (9th Cir.1986) (quoting United States v. Armstrong, 621 F.2d 951, 954 (9th Cir.1980)). The prejudice of a joint trial must be such as to violate a defendant's fair trial rights: i.e., unavailability of full cross-examination, lack of opportunity to present an individual defense, denial of the right of confrontation, lack of separate counsel among defendants with conflicting interests, or failure to instruct the jury properly on the admissibility of evidence as to each defendant. Id.; United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir.), cert. denied, 449 U.S. 856, 101 S.Ct. 154, 66 L.Ed.2d 71 (1980).

All of the defendants except Sandra Vaccaro and Paul Bond were charged and convicted of conspiracy to defraud the United States. All of the substantive charges in the other counts were overt acts forming a part of the conspiracy count. Thus, the evidence applicable to those counts was relevant to the conspiracy count. "When many conspire, they invite mass trial by their conduct." Kotteakos v. United States, 328 U.S. 750, 773, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (1946).

Both Sandra Vaccaro and Paul Bond, who were not charged with conspiracy, contend that they were unduly prejudiced because there was a mass of evidence presented that pertained only to their codefendants. They rely on United States v. Donaway, 447 F.2d 940 (9th Cir.1971).

In Donaway, nine defendants were charged in a ten-count indictment that involved two distinct schemes--one to affect illegally track odds on horse races and the other to drug horses. Donaway was accused of being involved only in the first scheme. The district court refused to grant a severance. The substantial majority of the Government's case was entirely irrelevant to Donaway. The court held that, despite the giving of jury instructions respecting the limited admissibility of evidence against the various defendants, Donaway was severely prejudiced...