U.S. v. Olson, s. 89-30220

Citation925 F.2d 1170
Decision Date12 February 1991
Docket Number89-30224,Nos. 89-30220,s. 89-30220
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Milton Donovan OLSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Bryan D. OLSON, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

C. James Frush, Helsell, Fetterman, Martin, Todd & Hokanson, Seattle, Wash., for defendant-appellant Milton Donovan Olson, Michael G. Martin, Chief Asst. Federal Public Defender, Seattle, Wash., for defendant-appellant Bryan D. Olson.

Harry J. McCarthy, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the District of Western Washington.

Before GOODWIN, WRIGHT and NOONAN, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Milton Donovan Olson (Don Olson) and his son Bryan Olson became codefendants after their indictment for multiple counts of mail fraud. Father was convicted as a principal, under 18 U.S.C. Sec. 1341. Son was convicted of aiding and abetting his father in violation of 18 U.S.C. Sec. 2. Both appeal.

Don Olson attacks the quality of his representation at trial, arguing that it violated his sixth amendment right to counsel. He further contends that the indictment was amended at trial, permitting him to be convicted on a theory not charged. Bryan Olson argues only that the evidence was insufficient to establish his specific intent to defraud.

BACKGROUND

In 1983, Don Olson started a small business in Seattle called Rest-O-Pedic. It used direct mail advertising and in-home sales presentations to sell adjustable beds to customers throughout the United States. The beds were delivered to its customers directly from the manufacturer, a Pennsylvania firm, Sci-O-Tech.

Bryan Olson began to work for his father at Rest-O-Pedic in 1985. During the last half of 1986 (the period under indictment), Bryan Olson was in charge of customer relations.

In its customer communications, Rest-O-Pedic repeatedly used three form letters signed by a nonexistent "Ted Wayne" of "Customer Service." The first informed the customer that a shipping date had been established. The second told the customer that the bed would be delayed because a final inspection had revealed a minor defect in a back-ordered part. The third letter said that the factory had received the back-ordered part and that a new shipping date had been established. Evidence indicated that these letters were mailed to customers as a matter of office routine rather than as accurate reports about the progress of orders. 1

Some customers who received Ted Wayne letters ultimately received their beds and were satisfied. But many Rest-O-Pedic customers were not so fortunate. The government adduced evidence that more than 100 customers paid Rest-O-Pedic more than $290,000 for beds never delivered. Evidence further showed that customers' funds were spent on other business and personal uses, not for beds. 2 Many of the victimized customers received Ted Wayne letters.

Unlike his father, Bryan Olson neither presented evidence nor testified in his own defense. At the end of the government's case, he moved for a judgment of acquittal. Judge Dwyer reserved his ruling. See Fed.R.Crim.P. 29(b). The jury acquitted the younger Olson on one count but found him guilty on thirteen others. The judge later denied the acquittal motion.

The jury found Don Olson guilty on all fourteen counts. He wrote to Judge Dwyer the following day, complaining that his representation at trial had been "extremely inadequate and almost to the point of no defense at all." Judge Dwyer permitted Don Olson's trial counsel to withdraw and appointed new counsel.

Don Olson's new attorney moved for a new trial, arguing that trial counsel had rendered ineffective assistance. Judge Dwyer held a two-day hearing on the motion. He received 24 defense exhibits and heard extensive testimony from witnesses, including both Don Olson and his trial attorney.

Several defense witnesses who had appeared at trial testified during the motion hearing that counsel did not adequately prepare them for trial. A private investigator thought his effectiveness in assisting Olson's defense was impaired, partly because of inadequate guidance from trial counsel. Another witness told of giving trial counsel evidence of a dishonest act by a government witness. Trial counsel did not use this evidence for impeachment.

The 24 defense exhibits, which had not been presented at Olson's trial, included three letters from Rest-O-Pedic customers indicating that they had experienced various mechanical problems with their beds. One such letter thanked Rest-O-Pedic for its help in resolving the problem. Other customer letters introduced at the motion hearing expressed satisfaction.

Olson testified at the motion hearing that he had asked trial counsel for copies of documents from the government, but had never received them. He described how he worked with the defense accountant to create a rebuttal exhibit, despite discouragement from and nonparticipation by trial counsel. Olson acknowledged having disagreed with some of trial counsel's tactical decisions, and he indicated that he was unaware of some efforts that trial counsel had made to uncover favorable evidence. Olson blamed his conviction on counsel and rejected the possibility that the jury simply did not believe his testimony.

Olson waived the attorney-client privilege, enabling trial counsel to testify at the motion hearing in some detail. Trial counsel said he had recurrent difficulties in getting Olson to focus on the important legal issues. He testified that although he repeatedly tried to corroborate that the beds were defective, as Olson represented, he was ultimately unable to do so. He explained that he did not use the evidence of the government witness's prior dishonesty to impeach her because the incident was completely collateral.

Trial counsel admitted that he overlooked making a Brady 3 request, contrary to his usual practice in defending a criminal case. He indicated that he did not adopt a satisfied customer theme in defense because it might have backfired. His conversations with some "satisfied" Rest-O-Pedic customers disclosed "a pattern of ... pressure tactics" that he viewed as "detrimental to the ultimate defense of Mr. Olson's case."

At the end of the second day of the hearing, Judge Dwyer orally denied Olson's new trial motion. He found that while trial counsel had not "function[ed] at 100 percent effectiveness," the case against Don Olson was so strong that a conviction would have followed even the most brilliant of defenses.

DISCUSSION
I. Don Olson: Did Trial Counsel Render Ineffective Assistance?

Olson attacks virtually every facet of counsel's performance. He criticizes counsel for lacking experience with criminal defense in general 4 and with mail fraud in particular. He catalogs ways in which he says the performance of counsel was deficient. These include the failure to make any pretrial motions or request formal discovery, the allegedly inadequate preparation of witnesses and for trial, not using opportunities to impeach prosecution witnesses and to undermine the government's case, and alleged failures to keep Olson properly informed and to communicate effectively with him.

Whether counsel rendered ineffective assistance is a mixed question of law and fact that we review de novo. See Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 2070, 80 L.Ed.2d 674 (1984). We review the district court's underlying findings of fact for clear error. See id. We must consider the totality of the evidence and of the circumstances. Id. at 688, 695, 104 S.Ct. at 2064-65, 2068-69. We must also "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2065.

Strickland established a two-pronged test for determining if counsel rendered ineffective assistance. Under this test, the defendant must establish both deficient performance and resulting prejudice. 466 U.S. at 687, 104 S.Ct. at 2064. We need not address both prongs if the defendant makes an insufficient showing about one. Id. at 697, 104 S.Ct. at 2069-70. Like Judge Dwyer, we begin by considering the prejudice prong.

The prejudice prong of Strickland ensures that the sixth amendment guarantee of counsel fulfills its purpose of assuring that criminal trials produce reliable outcomes. Id. at 691-92, 104 S.Ct. at 2066-67. Our inquiry is whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id.

After independently reviewing Olson's presentation, we find that we cannot improve upon the thoughtful analysis made by Judge Dwyer when he denied the new trial motion. He began by stating that "[t]here is no doubt in my mind that the result of the trial was reliable." He supported this conclusion by analyzing the evidence:

[T]here is no doubt that these adjustable bed customers were told that if they ordered beds and paid cash, that the beds would be ordered and the delivery date would be thus and such. A certain specified date. There is no doubt that these orders were solicited and taken pursuant to a practice which systematically put off the ordering of the beds beyond the dates that were promised.

Each of the customers at issue testified to basically the same story, and this story really was not contested. What it amounted to was that the bed was ordered, the cash was paid, the dates were promised, and then there ensued a series of letters....

Now, during this whole process, the bed had not even been ordered, and that's uncontested, too.

So looking at that evidence, even from the defendant's point of view, what do...

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