U.S. v. Gordon

• Decision Date: 14 June 1988
• Docket Number: Nos. 86-1061,86-1062,s. 86-1061
• Parties: 25 Fed. R. Evid. Serv. 1076 UNITED STATES of America, Plaintiff-Appellee, v. Frederick Ines GORDON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Edward LOESWICK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1397

844 F.2d 1397

25 Fed. R. Evid. Serv. 1076

UNITED STATES of America, Plaintiff-Appellee, v. Frederick Ines GORDON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Edward LOESWICK, Defendant-Appellant.

Nos. 86-1061, 86-1062.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 15, 1987.

Decided April 25, 1988.

As Amended on Denial of Rehearing June 14, 1988.

Frank R. Ubhaus, Ubhaus & Collins, P.C., San Jose, Cal., for defendant-appellant Gordon.

Richard L. Carico, John M. Bekins, San Francisco, Cal., for defendant-appellant Loeswick.

Leida B. Schoggen, Leland B. Altschuler, Asst. U.S. Attys., for plaintiff-appellee.

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

Before FLETCHER, WIGGINS and NOONAN, Circuit Judges.

WIGGINS, Circuit Judge:

Frederick Gordon and Edward Loeswick appeal from their convictions for conspiracy (Count I), obstruction of justice (Counts II and III), and perjury (Counts IV, V, VI and VII). The convictions arose out of an alleged agreement between Gordon, Loeswick and Vernon Edler to direct Lockheed subcontracts for the Trident Missile to Edler Industries to the exclusion of other potential subcontractors. Appellants claim that their convictions should be reversed because Count I of the indictment was duplicitous, hearsay testimony of a coconspirator was impermissibly admitted, the prosecution failed to turn over exculpatory Brady material, an allegedly perjurious statement was immaterial, and the evidence produced at trial was insufficient. We REVERSE on Count I and AFFIRM as to all other counts.

I. FACTS AND PROCEEDINGS BELOW

Lockheed Missiles and Space Company contracted with the Navy Department to design and manufacture hardware for the Trident II Ballistic Missile Program. Frederick Gordon was a mechanical engineer at Lockheed in Sunnyvale, California. He was responsible for designing a ring- shaped antenna for test missiles and for ordering the necessary parts and materials through the Lockheed purchasing office.

Edward Loeswick was the president of Loeswick's, Inc., an independent manufacturer's representative. Edler Industries was a material supply house in Newport Beach, California that manufactured reinforced plastic parts for the aerospace industry. Vernon Edler was president during most of the period relevant to this proceeding.

From mid-1980 until February of 1981, Gordon spoke with Edler about manufacturing silicon glass panels. Although initially reluctant, Edler agreed to do a small amount of work for Lockheed. In February of 1981, Gordon suggested that Edler hire Loeswick as his local sales representative. On February 11, 1981, Loeswick presented Edler with a letter agreement calling for a 10% commission on all business that Loeswick obtained for Edler. Then in late 1981, Loeswick asked Edler for a 20% commission on future Lockheed contracts. Edler orally agreed but never signed the letter memorializing the agreement.

The government presented evidence at trial that Gordon and Loeswick provided Edler with inside information, enabling Edler to secure Lockheed subcontracts to the exclusion of competitive bidders. Specifically, appellants supplied Edler with Engineering Material Requests ("EMRs"), internal Lockheed documents containing specifications for work to be performed, required delivery dates, and cost estimates. This information enabled Edler to match Lockheed prices and specifications exactly and to order raw materials in advance. In return, Edler treated Gordon and Loeswick to extravagant meals and a trip to Puerto Vallarta. The government also presented evidence that Gordon asked for a $15,000 payoff in return for Edler getting a Lockheed job at a higher price.

During 1983, a federal grand jury began an investigation of possible violations of 41 U.S.C. Sec. 51 et seq., the antikickback statute pertaining to government contractors and subcontractors. The grand jury subpoenaed Loeswick in March of 1984.

Unknown to Gordon and Loeswick, Edler was granted immunity on May 15, 1984. He then called Loeswick to arrange a meeting about the grand jury investigation. Loeswick was reluctant to meet and said that his attorney had advised against it. Nevertheless, Edler, Loeswick and Gordon met on May 21, 1984. Edler wore a body recorder. The three men discussed Loeswick's commission, their trip to Mexico, the expensive meals, and the $15,000 payoff to Gordon.

Loeswick testified before the grand jury on June 19, 1984. He made four statements that later formed the basis for four counts of perjury (Counts IV through VII).

Loeswick and Edler met again in June, 1984 and January, 1985 to discuss the grand jury investigation and the destruction of their respective files.

On February 19, 1985, the government filed an indictment charging Loeswick and Gordon with one count of conspiracy to defraud the United States in violation of 18 U.S.C. Sec. 371 (Count I), and one count of obstruction of justice arising out of the May 21, 1984 meeting, a violation of 18 U.S.C. Sec. 1503 (Count II). Count III charged Loeswick with obstruction of justice arising out of his June 26, 1984 meeting with Edler and charged Gordon with aiding and abetting in violation of 18 U.S.C. Sec. 2. Counts IV through VII charged Loeswick with perjury before the grand jury in violation of 18 U.S.C. Sec. 1623.

At the close of the government's case-in-chief the district court granted Loeswick's motion for judgment of acquittal on Count VI and Gordon's motion for judgment of acquittal on Count III. After a jury trial, Loeswick was convicted on Counts I, II, III, V and VII. The jury found Gordon guilty on Counts I and II. Appellants filed post-conviction motions for judgment of acquittal and for a new trial. The district court implicitly denied these motions.

On January 6, 1986, the district court entered judgment. Loeswick was sentenced to one year on Count I, and one year and one day on each of Counts V and VII. The sentences on Counts V and VII were to run concurrently to each other and consecutively to the sentence on Count I. Loeswick was fined $5,000 on each of Counts II and III. Gordon was sentenced to eighteen months on Count I and fined $5,000 on Count II. Execution of the sentences was stayed pending appeal pursuant to 18 U.S.C. Sec. 3143(b).

II. DISCUSSION

A. Duplicitous Indictment

Appellants contend that Count I of the indictment was duplicitous because it impermissibly charged two conspiracies in a single count. We review this question of law de novo. United States v. Aguilar, 756 F.2d 1418, 1421 (9th Cir.1985). Our task is solely to assess whether the indictment can be read to charge only one violation in each count. United States v. Mastelotto, 717 F.2d 1238, 1244 (9th Cir.1983).

Assuming that Count I of the indictment was duplicitous, appellants waived this objection by failing to make it before trial. Fed.R.Crim.P. 12(b)(2) requires that defenses and objections based on defects in the indictment be raised prior to trial. Failure to do so, unless for a good cause, constitutes a waiver of the objection. Fed.R.Crim.P. 12(f). Although this court has never been squarely presented with the question of whether duplicity objections must be made pretrial, we have so noted in dicta. See Mastelotto, 717 F.2d at 1244 n. 4; United States v. Westover, 511 F.2d 1154, 1155 n. 2 (9th Cir.), cert. denied, 422 U.S. 1009, 95 S.Ct. 2633, 45 L.Ed.2d 673 (1975).

Appellants cite Mitchell v. United States, 434 F.2d 230 (9th Cir.1970), cert. denied, 402 U.S. 946, 91 S.Ct. 1636, 29 L.Ed.2d 115 (1971), for the proposition that in this circuit objections to duplicity may be made prior to or during trial. The court in that case stated that "[i]t is the rule in this Circuit that failure to object to duplicity either prior to or during trial, constitutes a waiver of that objection." Id. at 231. This language in Mitchell is dicta however, because in Mitchell the first objection to the indictment was made at the oral argument on appeal and thus this court rejected the claim. Here, the objection was first made during trial. To the extent that Mitchell is inconsistent with Mastelotto and Westover, we adopt the language of these later cases. These cases follow the unambiguous language of Rule 12(b)(2). Moreover, a duplicity objection can easily be made before trial because a duplicity claim is directed at the face of the indictment and not at the evidence presented at trial. See Mastelotto, 717 F.2d at 1244. Mastelotto and Westover are also consistent with the majority of other circuits that have decided the issue. See United States v. Mosley, 786 F.2d 1330, 1333 (7th Cir.), cert denied, 476 U.S. 1184, 106 S.Ct. 2919, 91 L.Ed.2d 548 (1986); United States v. Price, 763 F.2d 640, 643 (4th Cir.1985); United States v. Lyons, 703 F.2d 815, 821 (5th Cir.1983); United States v. Berardi, 629 F.2d 723, 729 (2d Cir.), cert. denied, 449 U.S. 995, 101 S.Ct. 534, 66 L.Ed.2d 293 (1980); United States v. Sheehy, 541 F.2d 123, 130 (1st Cir.1976); United States v. Untiedt, 493 F.2d 1056, 1059 n. 3 (8th Cir.), cert. denied, 419 U.S. 862, 95 S.Ct. 115, 42 L.Ed.2d 98 (1974); United States v. Frank, 290 F.2d 195, 196 (3d Cir.), cert. denied sub nom. Toomer v. United States, 368 U.S. 821, 82 S.Ct. 38, 7 L.Ed.2d 26 (1961); but see United States v. Costner, 359 F.2d 969, 974 (6th Cir.1966); Franklin v. United States, 330 F.2d 205, 207 (D.C.Cir.1963).

In this case Gordon first raised the duplicity issue in his Rule 29 motion at the close of the government's case-in-chief and he has not made any showing of good cause. We conclude that appellants have waived an objection to the form of the indictment and their right to force the government to divide Count I into two separate conspiracy counts. Appellants, however, have a right under Article III, sec. 2 and the sixth amendment to a unanimous jury verdict. See United States v. Echeverry, 698 F.2d 375, 377...