U.S. v. Plache

• Decision Date: 07 September 1990
• Docket Number: Nos. 88-1389,88-1422,s. 88-1389
• Citation: 913 F.2d 1375
• Parties: 31 Fed. R. Evid. Serv. 247 UNITED STATES of America, Plaintiff-Appellee, v. Richard PLACHE; James Attarian, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1375

913 F.2d 1375

31 Fed. R. Evid. Serv. 247

UNITED STATES of America, Plaintiff-Appellee, v. Richard PLACHE; James Attarian, Defendants-Appellants.

Nos. 88-1389, 88-1422.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 17, 1990.

Decided Sept. 7, 1990.

Julian G. Macias, Sacramento, Cal., for defendant-appellant Plache.

Albert W. Brodie, Sacramento, Cal., for defendant-appellant Attarian.

R. Steven Lapham, Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.

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

Before HUG, SKOPIL and SCHROEDER, Circuit Judges.

HUG, Circuit Judge:

Richard Plache ("Plache") and James Attarian ("Attarian") separately appeal their convictions for numerous counts of mail fraud, 18 U.S.C. Sec. 1341 (1988), sale of an unregistered security, 15 U.S.C. Secs. 77e, 77x (1988), and aiding and abetting such acts, 18 U.S.C. Sec. 2 (1988). Plache and Attarian contend the district court failed to exclude a juror for cause, who allegedly held an implied employment bias, and erroneously denied their motions to exclude evidence under the attorney-client privilege. Further, Plache challenges the denial of his motion to sever and the sufficiency of the evidence for mail fraud. Finally, Attarian argues a special assessment was erroneously imposed at sentencing. We affirm.

I. Background

This action arose over the defendants' roles during 1982-85 in an arbitrage trading investment plan called ELMAS Trading Program, which the Government contends was a Ponzi scheme. Attarian was a director and one of the principals of the ELMAS Trading Corporation, and Plache was a member of its Advisory Council and the most successful salesman of the ELMAS Program.

The indictment charged five individuals, three of whom are not part of this appeal, with violations of the federal securities law and mail fraud. Plache was named in twenty-six of 115 original counts in the indictment, while Attarian was named in all counts.

Investors were told the ELMAS Program utilized a sophisticated computer program which allowed simultaneous trading in more than one commodity market, permitting the purchase at a low price in one market and sale at a higher price in another. Purportedly, an Arizona gold mine, owned by the ELMAS Corporation, could also be used to pay investors. Among other representations, investors were told they could earn three percent per month and up to forty-seven percent annually under some investment options. Many were informed that the ELMAS Program was exempt from federal or state securities regulations. Investors were also provided an opportunity to become sales representatives or consultants for the ELMAS Program.

Investors or investment groups were required to make a minimum investment of $100,000 in the ELMAS Program. By the end of the first quarter of 1985, approximately 5,500 individuals had made total investments of more than $75 million. The ELMAS Corporation went into receivership in April, 1985. Over the life of the program, Plache earned about $1,133,000 in commissions and fees, and Attarian was paid nearly $2 million.

II. Juror Exclusion

Plache and Attarian challenge the trial court's denial of their motions to exclude alternate juror Sherrill Coleman ("Coleman") for cause in this mail fraud case as a result of her employment as a letter carrier with the Postal Service. They also appeal the denial of their motions for a new trial on this same ground. We review for an abuse of discretion. See, e.g., United States v. Aguon, 851 F.2d 1158, 1170 (9th Cir.1988) (en banc) (denial of a motion for a new trial); United States v. Poschwatta, 829 F.2d 1477, 1484 (9th Cir.1987) (district court's determination concerning the competency of a juror), cert. denied, 484 U.S. 1064, 108 S.Ct. 1024, 98 L.Ed.2d 989 (1988).

Under voir dire examination, the district court asked Coleman whether she had any connection with the investigation and whether she would be influenced if a postal inspector testified. She responded negatively to these questions and indicated she could serve impartially. On this voir dire, the court found no cause for exclusion. After the defendants exhausted their peremptory challenges, Coleman was selected as an alternate juror. During the Government's closing argument, juror Glenn Kohlmeister interrupted, indicating he was ill. The defendants objected to excusing this juror. However, Kohlmeister was excused after the court examined him. The court filled his position with alternate juror Coleman, to whom the defendants again objected.

It is well-settled that a single partial juror deprives a defendant of his Sixth Amendment right to a trial by an impartial jury. See United States v. Eubanks, 591 F.2d 513, 517 (9th Cir.1979) (per curiam) (citing United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir.), cert. denied, 434 U.S. 818, 98 S.Ct. 58, 54 L.Ed.2d 74 (1977)). Further, while "due process does not require a new trial every time a juror has been placed in a potentially compromising situation, ... [d]ue process [does require] a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen." Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 946, 71 L.Ed.2d 78 (1982).

There is no claim of actual juror bias in this case. Instead, the defendants assert that a presumed or implied bias existed. While "[t]he Supreme Court has never explicitly adopted or rejected the doctrine of implied bias," Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir.1990), we have applied this doctrine in certain rare occasions. See Eubanks, 591 F.2d at 517 (in heroin case, presumed bias where juror's two sons were serving sentences for heroin-related crimes); United States v. Allsup, 566 F.2d 68, 71 (9th Cir.1977) (noting, in a bank robbery case, presumed bias "is evident when the prospective jurors work for the bank that has been robbed"); see also Smith, 455 U.S. at 221-24, 102 S.Ct. at 948-50 (O'Connor, J., concurring) (supporting doctrine of implied juror bias). Generally, however, "[o]nly in 'extreme' or 'extraordinary' cases should bias be presumed." Tinsley, 895 F.2d at 527 (citation omitted).

The issue as consistently framed under our case law, is whether "this case present[s] a relationship in which the 'potential for substantial emotional involvement, adversely affecting impartiality,' is inherent?" Tinsley, 895 F.2d at 527 (quoting Eubanks, 591 F.2d at 517; Allsup, 566 F.2d at 71); see also United States v. Panza, 612 F.2d 432, 441 (9th Cir.1979), cert. denied, 447 U.S. 925, 100 S.Ct. 3019, 65 L.Ed.2d 1118 (1980).

Plache and Attarian assert that Coleman had an implied bias because (1) use of the mails was the basis for jurisdiction; (2) Coleman would allegedly identify with the Postal Inspection Service, which was the investigating agency for part of the case, since Coleman "performed the actual delivery of the mail;" (3) "the Postal Service [was] a victim in that the services of mail carriers such as Ms. Coleman are being misused;" and (4) Coleman would "probabl[y] support, beyond that of a regular citizen, ... the goals of the mail fraud statute, and [she had an alleged] natural abhorrence against possibly being made an unwilling instrument of mail fraud."

The district court did not abuse its discretion in denying the motions to excuse for cause or for a new trial. The potential for substantial emotional involvement, identified in other cases finding an implied bias, has not been shown here. In the absence of any persuasive additional factors, Coleman's employment status alone does not warrant a finding of implied bias. Here, the credibility of any postal official was never in issue. No Postal Service inspector or employee testified, although a Postal Service inspector sat at the Government's table throughout the trial.

The mere use of the mails as an instrumentality did not convert the Postal Service into a victim, as the defendants contend. No direct relation has been established between Coleman's letter-carrying duties and the investigative function of the Postal Inspection Service.

III. Motion to Sever

Plache contends the district court's denial of his three motions to sever, pursuant to Fed.R.Crim.P. 14, constituted an abuse of discretion. See, e.g., United States v. Patterson, 819 F.2d 1495, 1501 (9th Cir.1987). The first motion was brought before trial, the second early in the trial, and the third at the close of the Government's case in chief. Generally, to prevail, a defendant has the burden to show he was denied a fair trial in that his joinder was "so manifestly prejudicial that it outweighed the dominant concern with judicial economy." Id. at 1502 (citations omitted).

However, it is unnecessary to address the merits because Plache did not renew his motion to sever at the close of all trial evidence. Failure to do so generally waives appellate review. See, e.g., United States v. Free, 841 F.2d 321, 324 (9th Cir.) cert. denied, 486 U.S. 1046, 108 S.Ct. 2042, 100 L.Ed.2d 626 (1988). In United States v. Kaplan, 554 F.2d 958, 965 (9th Cir.) (cited in Free, 841 F.2d at 324), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977), we identified two exceptions to the requirement of renewal to preserve appellate review: " the motion accompanies the introduction of evidence deemed prejudicial and a renewal at the close of all evidence would constitute an unnecessary formality." Neither of these two exceptions has been shown to apply here.

Without any supporting authority, Plache contends this issue was not waived because he renewed a motion to sever at the close of the Government's case in chief. This is not the law of our circuit. See, e.g., United States v. Figueroa-Paz, 468 F.2d 1055, 1057 (9th Cir.1972) (where motion to sever was brought pretrial and at the...