913 F.2d 1375 (9th Cir. 1990), 88-1389, United States v. Plache

Docket Nº:88-1389, 88-1422.
Citation:913 F.2d 1375
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Richard PLACHE; James Attarian, Defendants-Appellants.
Case Date:September 07, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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913 F.2d 1375 (9th Cir. 1990)

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

September 7, 1990

Argued and Submitted April 17, 1990.

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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

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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

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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...

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