U.S. v. Candoli
| Decision Date | 13 March 1989 |
| Docket Number | No. 87-5260,87-5260 |
| Citation | 870 F.2d 496 |
| Parties | 27 Fed. R. Evid. Serv. 1270 UNITED STATES of America, Plaintiff-Appellee, v. Diane CANDOLI, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John D. Vandevelde, Talcott, Lightfoot, Vandevelde, Woehrle & Sadowsky, Los Angeles, Cal., for defendant-appellant.
Nancy Wieben Stock, Asst. U.S. Atty., Santa Ana, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before ALARCON, BRUNETTI and THOMPSON, Circuit Judges.
Defendant-appellant Diane Candoli appeals from the judgment entered following her convictions for conspiracy under 18 U.S.C. Sec. 371, attempted arson under 18 U.S.C. Sec. 844(i), arson under 18 U.S.C. Sec. 844(i), and mail fraud under 18 U.S.C. Sec. 1341. Candoli seeks reversal on the following grounds:
(1) Candoli was unfairly prejudiced by the giving of a flight instruction because the government failed to reveal favorable evidence regarding her codefendant's flight.
(2) The evidence was insufficient to sustain her conviction for attempted arson.
(3) The district court improperly limited cross-examination of a prosecution witness' bias.
(4) The district court erred by admitting evidence that another "suspect" was asked to take a polygraph test.
(5) The district court erred when it allowed the prosecution to present reputation evidence to bolster the credibility of an expert witness.
(6) The district court erred when it allowed the in-court identification of a co-conspirator because the pretrial identification procedures were impermissibly suggestive and the prosecution lost the photospread used for the pretrial identification.
(7) The district court erred when it admitted statements of Candoli's co-defendants and denied Candoli's related motion for severance.
(8) The evidence was insufficient to sustain Candoli's convictions for conspiracy, arson, and mail fraud.
Diane Candoli, Angel Vultchev, and Steven Kostov were indicted on May 14, 1986. They were charged with conspiracy, attempted arson, arson and mail fraud.
Defendant Candoli was the sole owner and operator of a Beverly Hills boutique called Harold's Place. Kostov worked as the manager at Harold's Place. Vultchev was Kostov's roommate.
On July 10, 1984, Kostov and Vultchev were seen by police at approximately 4:30 a.m. parked about 100 yards from Harold's Place. About an hour later they were observed by police officers travelling the wrong way in a one-way alley. The police officers stopped them. Kostov and Vultchev gave inconsistent reasons for being in the area. The police officers observed plastic bottles containing gasoline and some matches in the trunk of the car. The car was impounded because it had been reported stolen.
On July 22, 1984, at about 1:00 a.m. fire broke out in the four story multi-tenant office building where Harold's Place was located. Subsequent investigation revealed that the fire was set with gasoline and had three points of origin. One fire was set on the first floor inside Harold's Place which was only accessible by someone with a key and with the ability to deactivate the alarm. The two other fires were set on the second and third floors near the stairwells and electrical closets. The second and third floor stairwells were accessible to the public.
On the night of the arson, Kostov and Vultchev were seen at approximately 12:50 a.m. at the Daisy Club which was a two minute drive or a six minute walk from Harold's Place.
Prior to the arson at Harold's Place, Candoli dissolved her partnership and became a sole proprietor. A few weeks later she obtained a $100,000 insurance policy on Harold's Place. A month before the fire Candoli, on her own initiative, returned some goods that were held on consignment at Harold's Place. A few weeks prior to the fire, Candoli had a sale at Harold's Place.
Following the fire, Candoli filed an insurance claim for the full policy limit on Harold's Place of $100,000. The insurance company paid Candoli the policy limit.
Candoli and Vultchev were scheduled for a joint trial. Kostov was a fugitive and could not be brought to trial with his codefendants. Prior to trial, Candoli filed a severance motion. The district court denied the motion.
The jury trial commenced on January 6, 1987. On January 28, 1987, the government rested. On that same date Vultchev failed to appear at the trial. The trial proceeded in his absence. The jury returned verdicts of guilty on all counts against Candoli and Vultchev on February 2, 1987.
Candoli subsequently filed a motion for a new trial which was denied on June 22, 1987. The district court sentenced Candoli on September 10, 1987. Candoli filed a timely notice of appeal that same day.
Additional facts are set forth where pertinent to the discussion of the issues.
Candoli contends that the district court prejudicially erred in giving a flight instruction to the jury regarding Vultchev's mid-trial disappearance. Candoli further contends that the government withheld "favorable information relating to Vultchev's absence [which] resulted in an attack on the credibility of Mrs. Candoli's chief exculpatory witness that could not be rebutted by Mrs. Candoli without the information withheld by the government."
On January 28, 1987, after the government had rested its case-in-chief, Vultchev failed to appear in court. The district court allowed Vultchev's counsel to attempt to contact him by telephone. He was unable to do so. Tara Duffy, Candoli's daughter, however, was able to reach Vultchev by telephone. Duffy asked Vultchev why he was not in court. Duffy's conversation with Vultchev was overheard by an Alcohol, Tobacco and Firearms ("ATF") officer who relayed this information to the prosecution. During cross examination of Duffy, the prosecution sought to elicit testimony regarding her conversation with Vultchev. Candoli objected. The district court overruled the objection, but gave a limiting instruction explaining to the jury that the testimony regarding Vultchev's absence was only admissible against him. The district court further admonished the jury that the fact that Duffy was Candoli's daughter should not cause the jury to consider this evidence against Candoli.
On review, we must consider the jury instructions as a whole to determine whether the district court abused its discretion. United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir.1985).
Because Candoli was present during the whole trial, the flight instruction was inapplicable to her. Candoli may not challenge the propriety of the flight instruction with respect to codefendant Vultchev. Candoli can challenge the instruction, however, on the ground that it prejudiced her right to a fair trial. See United States v. Lobo, 516 F.2d 883, 885 (2d Cir.) (jury instruction challenged based on claim that the instruction implied that codefendant was also guilty of the charged offense) cert. denied, 423 U.S. 837, 96 S.Ct. 65, 46 L.Ed.2d 56 (1975).
The Second Circuit in Lobo found that no prejudice to a codefendant resulted from the giving of a flight instruction which was only applicable to the defendant who fled midtrial. The Second Circuit stated, "[w]e fail to see ... that [the defendant's] decision to flee implied the guilt of anyone but himself; indeed, [the codefendant's] continued presence, by contrast, might have been viewed by the jury as belief in his own innocence." Id. at 884. The Second Circuit held that for a violation to occur the inference of a codefendant's guilt " 'would have to be clear and practically inescapable.' " Id. at 885 (quoting United States v. Sparano, 422 F.2d 1095, 1099 (2d Cir.1970)).
In the instant matter, the jury could have viewed Candoli's continued presence as a sign that Candoli did not have a guilty conscience. Furthermore, the flight instruction did not require that the jury consider Vultchev's absence as evidence of his guilt. 1 It is, therefore, unlikely that it created an inference that Candoli was guilty.
Candoli also claims prejudice because the flight instruction was not expressly limited to Vultchev. Candoli did not request such a limiting instruction. Because she was not absent from the trial, it was obvious that the flight instruction did not apply to her and it was not necessary for the district court to give a limiting instruction sua sponte. See United States v. DeLeon, 498 F.2d 1327, 1332 (7th Cir.1974) ().
Moreover, when the district court admitted evidence of Vultchev's flight, the district court instructed the jury that the evidence was limited to Vultchev and was not admissible against Candoli. In addition, when the district court started to instruct the jury, the district court stated that "[U]nless otherwise stated, the jury should consider each instruction given to apply separately and individually to each defendant on trial." Thus, the jury was instructed not to link Candoli and Vultchev together when considering each instruction. In light of this charge, the flight instruction was not applicable to Candoli. Candoli has failed to show that she was prejudiced by the giving of the flight instruction.
Candoli contends that the government suppressed favorable evidence of Vultchev's flight in violation of its obligation under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963). Brady requires the government upon request to turn over information favorable to the accused. Id.
The evidence allegedly suppressed was information that Vultchev was wanted by the Los Angeles Police Department (L.A.P.D). The prosecution learned the afternoon of January 28, 1987, that the L.A.P.D. was looking for...
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