Amsler v. United States

• Decision Date: 03 July 1967
• Docket Number: No. 19509.,19509.
• Citation: 381 F.2d 37
• Parties: Joseph C. AMSLER and John W. Irwin, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

381 F.2d 37 (1967)

Joseph C. AMSLER and John W. Irwin, Appellants, v. UNITED STATES of America, Appellee.

No. 19509.

United States Court of Appeals Ninth Circuit.

May 3, 1967.

As Amended on Denials of Rehearing July 3, 1967.

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Edgar Paul Boyko, Michael W. Rotberg, Los Angeles, Cal., for appellant, John Irwin.

Morris Lavine, Los Angeles, Cal., for appellant, Joseph C. Amsler.

Robert A. Neeb, Jr., Beverly Hills, Cal., Charles L. Crouch, Jr., Los Angeles, Cal., for appellant, Barry W. Keenan.

Manuel L. Real, U. S. Atty., John K. Van de Kamp, Asst. U. S. Atty., Chief Crim. Div., Donald R. Fareed, Asst. U. S. Atty., Chief Trial Atty., Los Angeles, Cal., for appellee.

Wm. Matthew Byrne, Jr., U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Chief Crim. Div., Donald A. Fareed, Asst. U. S. Atty., Chief Trial Atty., Los Angeles, Cal., for appellee on rehearing.

Before BARNES, CECIL,^* and ELY, Circuit Judges.

CECIL, Senior Circuit Judge.

The appellants, Joseph Clyde Amsler and John William Irwin, hereinafter referred to as defendants or as Amsler and Irwin, respectively, were indicted in the United States District Court for the Southern District of California,^** Central Division, on a six-count indictment arising out of the alleged kidnapping and interstate transportation of Frank Sinatra, Jr.¹ Amsler and Irwin were jointly indicted with one Barry Worthington Keenan.

The defendants were tried jointly to a jury. The jury returned verdicts of guilty against Keenan and Amsler on all six counts. A guilty verdict was returned against Irwin on counts one and three through six. Judgment was entered on the verdicts and all three defendants were sentenced to imprisonment. Separate appeals were perfected by each of the defendants but Keenan's appeal was subsequently dismissed on his motion. The District Court had jurisdiction to try the defendants on the indictments under Section 3231, Title 18, U.S.C. This Court has jurisdiction of the appeals under Sections 1291 and 1294(1), Title 28, U.S.C.

The principal issues presented on these appeals relate to procedural questions. At the outset, counsel for Amsler challenges the jurisdiction of the trial court on the ground that the trial was not conducted where the alleged crime was committed as required by Article III, Section 2 of the Constitution² of the United States. It is not claimed that the trial was not held within the territorial limits of the state within which the crime was committed. The case was tried before a district judge of the United States District Court for the District of Oregon, on assignment by the Chief Judge of the Ninth Circuit, under Section 292(b), Title 28, U.S.C.³ Oregon is in the Ninth Circuit, as is California, and there is no question of the regularity of the assignment under the statute. It is claimed that because the trial judge was from out of the state, the trial was not held within the limits of the state where the crime was committed. This claim is without merit. The personnel of a court is distinguishable from its territorial limits. It is further claimed that Section 292(b) is unconstitutional. No cases have been cited to us in support of this contention nor have we found any. We find nothing inconsistent between the provision that a district judge, resident and appointee of one district, may be assigned under statutory authority to a different district in the same circuit, and the constitutional requirement that a criminal case be tried within the territorial limits of the state where the crime was committed. See McDowell v. United States, 159 U.S. 596, 598, 16 S.Ct. 111, 40 L.Ed. 271; Lamar v. United States, 241 U.S. 103, 117-118, 36 S.Ct. 535, 60 L.Ed. 912; "Assignment of Judges to Other Districts," by Judge Yankwich, 3 F.R.D. 481, 486. Nor do we find anything in the rules of the Central Division of the Southern District of California⁴ that would prevent the Chief Judge of the circuit from designating an out of state judge to try the case. Rules of court are not that arbitrary and inflexible. If there is a conflict between the rules and the statutes, the statutes must prevail. The district judge from Oregon, sitting by designation in the Southern District of California, had jurisdiction to try the case.

Counsel for Amsler challenges the indictment on the ground that it is duplicitous. It is claimed first that the kidnapping statute, Section 1201, Title 18, U.S.C., embraces all of the acts charged in all of the counts in the indictment and that therefore there is but one crime involved. Secondly, it is claimed that the conspiracy count of the indictment merged into the second and other substantive counts of the indictment and that the defendant Amsler cannot be guilty of conspiracy and a substantive offense arising out of the same transaction.

It is well established in federal criminal practice that a person may be convicted of conspiring to commit an offense against the United States and also of committing the substantive offense which is the subject of the conspiracy. Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489, rehearing denied 329 U.S. 818, 67 S.Ct. 26, 91 L. Ed. 697; Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435; Callanan v. United States, 364 U.S. 587, 81 S.Ct. 321, 5 L.Ed.2d 312, rehearing denied, 365 U.S. 825, 81 S.Ct. 687, 5 L. Ed.2d 703; Toliver v. United States, 9 Cir., 224 F.2d 742. The conspiracy count (Count 1) of the indictment is laid under Section 371, Title 18, U.S.C. It charges conspiracy to commit offenses under three sections of the criminal code, 1201 (a), 875(a) and 1202. Section 1201(c), which makes it an offense to conspire to violate Section 1201(a), did not repeal Section 371 by implication. Count 2 charges the substantive offense of kidnapping under Section 1201. Counts three, four and five charge three separate offenses of transmitting communications in interstate commerce demanding ransom money under Section 875(a). Count six charged all three defendants with receiving, possessing and disposing of ransom money in violation of Section 1202. Each count charges a separate offense and there is no merit to the claim that the indictment was duplicitous. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557, is not in point. There the indictment charged one conspiracy whereas the Supreme Court found that there were eight conspiracies with one conspirator common to all of them.

Appellant Amsler claims that the trial court committed error in not granting his motion for a severance of his trial. The discretion of a court to grant or deny a severance under Rule 14 of the F.R.Cr.P.⁵ will not be disturbed unless an abuse of such discretion is shown. Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101. The mere fact that one co-defendant has made statements, incriminating other co-defendants, does not require that a severance be granted so long as the trial judge properly cautions the jurors that such statements are not to be considered against the other defendants. Opper v. United States, supra. Such caution was given in this case. It is not an abuse of discretion to deny severance even though the confession of one co-defendant, not binding upon, though incriminating, the other defendants, is received in evidence, if proper precautionary instructions are given. Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278; United States v. Howell, 3 Cir., 240 F.2d 149; Costello v. United States, 8 Cir., 255 F.2d 389, cert. den. 358 U.S. 830, 79 S.Ct. 52, 3 L.Ed.2d 69, rehearing den. 358 U.S. 901, 359 U.S. 1015, 79 S.Ct. 1146, 3 L.Ed.2d 901. No error was committed, therefore, in denying severance of Amsler's trial, in spite of the fact that confessions of the other defendants were received in evidence.

One of the assignments of error made on behalf of Amsler relates to the method of selecting the jury, referred to as the "Arizona System." The objection was directed primarily to the manner of exercising peremptory challenges. Rule 24(b) of the F.R.Cr.P. prescribes the number of challenges that shall be allowed to the government and to the defendant or the defendants but it does not prescribe how they shall be exercised.

The method to be used in selecting the jury was defined by the trial judge at the opening session of the trial. He said:

"Now, I will say to counsel that in my directions to the Clerk, I have indicated that he should draw initially 37 prospective jurors. That will tell you that that will provide for the ultimate 12. That will provide for six government challenges. That will provide 10 defendant challenges which the Court directs that they exercise jointly, and it will provide for one extra challenge for each defendant and for him to exercise in his own prerogative. It will provide for four alternates and one challenge by the Government and one challenge by the defendants to be exercised jointly as to the four alternates. So with that in mind, I will ask the Clerk to call 37 prospective jurors."

The trial judge conducted the voir dire examination, giving counsel ample opportunity to suggest further questions to be asked of the prospective jurors. If a prospective juror was excused for cause another one was called so that when the voir dire examination was completed there were 37 prospective jurors who had been passed for cause. Over the objection of counsel for all of the defendants, the trial judge directed the defense counsel to exercise peremptory challenges alternately with the government against the panel of 37 prospective jurors. The defendants were given ten challenges to be exercised jointly, and one each to be exercised individually. The government was given six peremptory challenges. The government and the defendants, jointly, each had one challenge to the four alternate jurors. When all of the challenges were...