844 F.2d 660 (9th Cir. 1988), 86-1383, United States v. Kirk

• Citation: 844 F.2d 660
• Docket Number: 86-1383.
• Date: 14 April 1988
• Parties: RICO Bus.Disp.Guide 6931, UNITED STATES of America, Plaintiff-Appellee, v. Ben Farrell KIRK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 660

844 F.2d 660 (9th Cir. 1988)

RICO Bus.Disp.Guide 6931,

UNITED STATES of America, Plaintiff-Appellee,

v.

Ben Farrell KIRK, Defendant-Appellant.

No. 86-1383.

United States Court of Appeals, Ninth Circuit

April 14, 1988

Argued and Submitted Jan. 11, 1988.

Page 661

Leslie E. Osborne, Jr., Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellee.

Ray A. Findlay, Kailua-Kona, Hawaii, for defendant-appellant.

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

Before GOODWIN, FARRIS and NELSON, Circuit Judges.

PER CURIAM:

Ben Farrell Kirk appeals from his conviction on one count of conspiracy, one count of RICO, fifty-six counts of mail fraud, three counts of wire fraud, and two counts of interstate transportation of stolen property. Kirk contends that his conviction should be reversed because (1) the denial of certain trial transcripts violated his right to prepare an adequate defense; (2) the admission of certain testimony violated the hearsay prohibition and his right to confront the witnesses against him; and (3) the government failed to prove sufficiently the RICO charge. The district court had jurisdiction pursuant to 18 U.S.C. Sec. 3231 and we have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm the conviction on all counts.

FACTUAL AND PROCEDURAL BACKGROUND

W.P.M.K., a company founded by Kirk and three others in 1979, provided condominiums and apartments for purchase through a "right-to-use" time share club. Members purchased the right to use club condominiums, primarily in Hawaii, for a specified number of weeks. Kirk ran the day-to-day operations while the other three original founders financed the scheme. Because of financial difficulties, Kirk hired James Quincy in 1980 to handle marketing operations. W.P.M.K. acquired the facilities while Quincy's organization serviced the purchasers and maintained the facilities. Quincy contracted to receive 50% of the net sale proceeds of the venture. This arrangement operated until Quincy signed a termination agreement in May of 1981. W.P.M.K. went into bankruptcy in late 1981.

The indictment charged Kirk and nine others with conspiracy to defraud in connection with the time share venture. Two of the ten originally indicted pled guilty and testified for the government. Evidence supports the conclusion that the group was "overselling" time share contracts--e.g., selling consumers eight-year, monthly contracts while only having three-year lease or purchase agreements for the facilities, and obligating the venture to provide 5,270 weeks of use when an inventory of only 3,068 weeks was acquired.

Testimony reveals that misrepresentations were made in the sale of time share purchase contracts. Testimony shows that W.P.M.K. had financial difficulties and the inventory was oversold even before Quincy was part of the venture. Kirk's control over the time share scheme even during Quincy's involvement is supported by testimony. One potential financier for the venture, Walter Gribben, testified that Kirk knew of Quincy's prior problems in such ventures and was warned that the agreement with Quincy would increase W.P.M.K.'s financial difficulties. The financing negotiations with Gribben fell through when Kirk insisted on hiring Quincy for 50% of the sales proceeds. Kirk presented evidence about problems between him and Quincy in 1981 due to purchaser dissatisfaction, and evidence that he insisted on full disclosure to prospective purchasers and quick processing of credit memos.

The first trial began for the remaining eight defendants on March 11, 1986 in Hawaii before the Honorable Jesse W. Curtis ("Trial # 1"). After two weeks, the court granted the severance motion of Appellant and two other co-defendants, Mary Anne Kirk and Gabriel LaBruzza. At a separate trial before Judge Curtis in April of 1986, Mary Anne Kirk and Gabriel LaBruzza were acquitted. The jurors were deadlocked as to Appellant's culpability and a mistrial was declared ("Trial # 2"). The third trial for Appellant commenced September 30, 1986 before the Honorable Edward Rafeedie. This eight-day jury trial

Page 662

resulted in Kirk's conviction ("Trial # 3"). Kirk timely appealed.

DISCUSSION

I. KIRK'S TRANSCRIPT REQUESTS

We review a claim that the denial of a transcript request violated a defendant's constitutional right to prepare an adequate defense de novo. See United States v. McConney, 728 F.2d 1195, 1202-04 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). We will not reverse the conviction if the denial was harmless beyond a reasonable doubt. United States v. Rosales-Lopez, 617 F.2d 1349, 1355 (9th Cir.1980) aff'd, 451 U.S. 182, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981).

Kirk contends that the denial of certain transcript requests violated his right to prepare an adequate defense. Kirk requested the full transcripts from (1) Trial # 1--from which he had been severed; (2) Trial # 2--which resulted in a hung jury; and (3) the ongoing trial of James Quincy, a third party charged in the same scheme. The district court granted in part and denied in part the request for Trial # 1 transcripts; granted the request for Trial # 2 transcripts in full; and denied the request for transcripts of Quincy's trial. Kirk contends that the district court erred in not fully granting all three requests.

The Supreme Court has held that a state "must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners." Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400 (1971) (emphasis added). However, the right to free transcripts is not absolute. The Court in Britt recognized that the "outer limits of that principle are not clear." Id.

Kirk maintains...