United States v. Stinson, 082611 FED9, 07-50408

Docket Nº:07-50408, 07-50409
Opinion Judge:RYMER, JUDGE.
Party Name:United States of America, Plaintiff-Appellee, v. John William Stinson, aka; Seal C; Youngster; The Youngest, Defendant-Appellant. United States of America Plaintiff-Appellee, v. Robert Lee Griffin, aka Seal E, Blinky, McGrif, McGriff, Defendant-Appellant.
Attorney:Paul E. Potter, Esq., Pasadena, California, for appellant Stinson. Joseph F. Walsh, Esq., Los Angeles, California, for appellant Griffin. Shannon P. Ryan, Anne M. Voigts, Stephen G. Wolfe, Assis
Judge Panel:Before: Pamela Ann Rymer, Consuelo M. Callahan, and Sandra S. Ikuta, Circuit Judges.
Case Date:August 26, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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United States of America, Plaintiff-Appellee,

v.

John William Stinson, aka; Seal C; Youngster; The Youngest, Defendant-Appellant.

United States of America Plaintiff-Appellee,

v.

Robert Lee Griffin, aka Seal E, Blinky, McGrif, McGriff, Defendant-Appellant.

Nos. 07-50408, 07-50409

United States Court of Appeals, Ninth Circuit

August 26, 2011

Submitted March 8, 2011 Pasadena, California.

Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding D.C. Nos. CR-02-00938-RGK, CR-02-00938-RGK-5.

COUNSEL

Paul E. Potter, Esq., Pasadena, California, for appellant Stinson.

Joseph F. Walsh, Esq., Los Angeles, California, for appellant Griffin.

Shannon P. Ryan, Anne M. Voigts, Stephen G. Wolfe, Assis­tant United States Attorneys, Los Angeles, California, for the appellee.

Before: Pamela Ann Rymer, Consuelo M. Callahan, and Sandra S. Ikuta, Circuit Judges.

AMENDED OPINION

RYMER, JUDGE.

John Stinson and Robert Griffin appeal their convictions for RICO conspiracy, 18 U.S.C. § 1962(d), for operating the Aryan Brotherhood (AB) prison gang. Stinson also appeals his conviction for violent crime in aid of racketeering (VICAR), 18 U.S.C. § 1959(a)(1). We have jurisdiction pur­suant to 28 U.S.C. § 1291, and we affirm.

I

The AB started in 1964 as a group of white prison inmates who asserted the need to protect themselves and later evolved into an organization designed to traffic narcotics across numerous California and federal prisons. In the early 1980s, the California AB was reorganized such that it was governed by a three-member commission. The commission had final say on AB orders to kill, orders to enforce AB rules, and the AB's business efforts. Griffin was an original member of the commission. By 1990, Stinson had joined Griffin on the com­mission.

A federal grand jury indicted Griffin and Stinson for oper­ating a RICO conspiracy in violation of 18 U.S.C. § 1962(d) and for two counts of VICAR in violation of 18 U.S.C. § 1959(a)(1). The RICO count set forth numerous overt acts in furtherance of the conspiracy, including operating the Cali­fornia Commission and 11 murders, attempted murders, or conspiracies to murder. The VICAR counts alleged the mur­ders of Arthur Ruffo and Aaron Marsh for the purpose of maintaining or increasing Griffin and Stinson's positions in the AB.

The case proceeded to a 27-day jury trial. The jury found Stinson and Griffin guilty of the RICO count and Stinson guilty of the VICAR counts. As for Griffin, the jury returned special verdicts finding him guilty of all the charged overt acts of murder, attempted murder, or conspiracy to murder, except the murder of Marsh and the attempt and conspiracy to murder Jeffrey Barnett. The jury returned a special verdict finding that Griffin had not withdrawn from the conspiracy prior to the running of the statute of limitations on August 28, 1997. As for Stinson, the jury returned special verdicts find­ing him guilty of the same overt acts as Griffin, plus the Marsh murder. The jury also found Stinson guilty of VICAR for aiding, abetting, and conspiring to murder Ruffo and Marsh.

Stinson and Griffin were sentenced to life terms on the RICO count. Stinson was sentenced to additional life terms for the VICAR counts. Stinson and Griffin timely appeal.

II

This appeal centers on numerous procedural decisions by the district court before and during the trial.

A

Stinson and Griffin moved for dismissal of the VICAR counts on the basis that venue was improper in the Central District of California because the alleged murders occurred at the Pelican Bay State Prison in the Northern District of Cali­fornia. The district court denied the motion, reasoning that the VICAR counts charged offenses that continued into the Cen­tral District.

In claims for improper venue in criminal cases, "the under­lying legal basis is reviewed de novo, [though] a district court's ruling on a motion for change of venue is reviewed for abuse of discretion." United States v. Valdez-Santos, 457 F.3d 1044, 1046 (9th Cir. 2006). On such a pre-trial motion to dis­miss, courts presume the truth of the allegations in the indictment. United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996).

Under 18 U.S.C. § 3237(a), continuing offenses, defined as offenses "begun in one district and completed in another, or committed in more than one district, " may be prosecuted "in any district in which such offense was begun, continued, or completed." Venue is proper under § 3237 when an "essential conduct element" of the offense continues into the charging district. United States v. Rodriguez-Moreno, 526 U.S. 275, 280-82 (1999). Venue is not proper when all that occurred in the charging district was a "circumstance element . . . [that] occurred after the fact of an offense begun and com­pleted by others." Id. at 280 n. 4 (quoting United States v. Cabrales, 524 U.S. 1, 7 (1998)) (internal quotation marks omitted). We have instructed that "[c]rimes that are not uni­tary but instead span space and time . . . may be considered continuing offenses." United States v. Pace, 314 F.3d 344, 350 (9th Cir. 2002) (quoting United States v. Corona, 34 F.3d 876, 879 (9th Cir. 1994)) (internal quotation marks omitted); see also United States v. Barnard, 490 F.2d 907, 911 (9th Cir. 1973).

We have not yet squarely reached the question of whether VICAR can be a continuing offense under § 3237. In answering that question, "a court must initially identify the conduct constituting the offense (the nature of the crime) and then discern the location of the commission of the criminal acts." Rodriguez-Moreno, 526 U.S. at 279. As for the first step, we have already identified four elements of a VICAR conviction:

(1) that the criminal organization exists; (2) that the organization is a racketeering enterprise; (3) that the defendant committed a violent crime; and (4) that the defendant acted for the purpose of promoting his position in a racketeering enterprise.

United States v. Banks, 514 F.3d 959, 964 (9th Cir. 2008) (quoting United States v. Bracy, 67 F.3d 1421, 1429 (9th Cir. 1995) (alterations omitted). As for the second step, "essential conduct elements" occurred in the Central District of Califor­nia in addition to the Northern District of California. While the physical killing of Ruffo and Marsh occurred in the North­ern District, the indictment charged that Stinson, "within the Central District of California" did "aid, abet, advice, encour­age, and otherwise participate in the murder of Arthur Ruffo . . . [and] Aaron Marsh." The indictment therefore charged that the essential conduct element of committing a violent crime continued in the Central District. VICAR is conse­quently a continuing offense in this case. As a result, venue was proper in the Central District under 18 U.S.C. § 3237(a). The district court did not err in denying the motion to dismiss for improper venue.

B

Griffin moved to sever his case from Stinson's under Fed. R. Crim. P. 14 on the ground that he would be prejudiced by allegations against Stinson that do not apply to him. The dis­trict court denied severance. The court also issued limiting instructions to the jury that "you must decide the case for each defendant on each charge against that defendant separately."

We review a denial of a motion for severance under Rule 14 for an abuse of discretion. United States v. Sullivan, 522 F.3d 967, 981 (9th Cir. 2008).

Rule 14 provides that "[i]f the joinder of offenses or defendants . . . appears to prejudice a defendant, " then "the court may . . . sever the defendants' trials, or provide any other relief that justice requires." Fed. R. Crim. P. 14(a). Sev­erance is appropriate under Rule 14 "only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro v. United States, 506 U.S. 534, 539 (1993). "There is a preference in the federal system for joint trials of defendants who are indicted together." Id. at 537.

Griffin does not identify a "specific trial right" that was compromised by his joint trial. He argues that the district court's decision not to sever prejudiced him, because Stinson asked questions of a government agent that led to improper "vouching testimony" that was harmful to Griffin. Yet that is an objection to the admission of that testimony, which we address in subpart H, not to the court's decision not to sever. Any difference in trial strategy between Griffin and Stinson was not analogous to cases in which co-defendants seek to present mutually exclusive defenses, such that severance is a prerequisite to the defendants' due process right to mount a defense. See, e.g., United States v. Mayfield, 189 F.3d 895, 899-900 (9th Cir. 1999).

Nor may Griffin show that the joint trial "prevent[ed] the jury from making a reliable judgment about guilt or inno­cence" in light of the district court's instruction. Zafiro, 506 U.S. at 539. Where "the district court uses great diligence in instructing the jury to separate the evidence, severance is unnecessary because the prejudicial effects of the evidence of codefendants are neutralized." United States v. Patterson, 819 F.2d 1495, 1503 (9th Cir. 1987) (footnote and internal quota­tion marks omitted). See also United States v. Fernandez, 388 F.3d 1199, 1242-43 (9th Cir. 2004). The district court explic­itly instructed the jury that it "must decide the case for each defendant on each charge against that defendant separately." It is clear that the jury was able to compartmentalize the evi­dence because it...

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