U.S. v. Birges

• Decision Date: 10 January 1984
• Docket Number: 82-1761,Nos. 82-1744,s. 82-1744
• Citation: 723 F.2d 666
• Parties: 14 Fed. R. Evid. Serv. 1308 UNITED STATES of America, Plaintiff-Appellee, v. John Waldo BIRGES, Sr., Terry Lee Hall, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 666

723 F.2d 666

14 Fed. R. Evid. Serv. 1308

UNITED STATES of America, Plaintiff-Appellee, v. John Waldo BIRGES, Sr., Terry Lee Hall, Defendants-Appellants.

Nos. 82-1744, 82-1761.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 14, 1983.

Decided Jan. 10, 1984.

Edward R.J. Kane, Asst. U.S. Atty., Las Vegas, Nev., for plaintiff-appellee.

Cal J. Potter, III, Joseph M. Kadans, Las Vegas, Nev., for defendants-appellants.

Appeal from the United States District Court for the District of Nevada.

Before DUNIWAY, ALARCON, and BOOCHEVER, Circuit Judges.

ALARCON, Circuit Judge:

John Birges and Terry Hall appeal from their convictions arising out of the bombing of Harvey's Casino [South Lake Tahoe].

Birges was convicted of attempt to interfere with commerce by threats of violence, interstate travel in aid of racketeering, conspiracy, and transportation of explosives in interstate commerce. He asserts three claims of error: (1) that the failure of his attorney to represent him adequately denied him his sixth amendment right to the effective assistance of counsel; (2) that two communications between the judge and the jury, after the jury had retired, constituted supplemental jury instructions, requiring counsel to be informed and defendant to be present; (3) that comments made in closing argument were "harsh and vindictive", thereby constituting prosecutorial misconduct.

Hall appeals his convictions for conspiracy and transportation of explosives in interstate commerce. Hall submits three points for review: (1) that the evidence presented at trial was not sufficient to support the finding of criminal intent; (2) that the inconsistency of the verdicts rendered by the jury required his motion for acquittal to be granted; (3) that a reference to him as a co-conspirator was improper and constituted prejudicial error.

Finally, both defendants contend that the trial court erred in denying their motions to change venue.

We find that Birges and Hall have failed to show grounds for a reversal of their convictions. The judgment of the trial court is affirmed.

FACTS

It was the government's theory at trial that Birges, who owed extensive gambling debts to Harvey's Casino and Harvey's Inn, planned to extort money from Harvey's Casino. To carry out his plans, Birges built a highly sophisticated bomb. He obtained approximately 18 cases of dynamite by breaking into a Pacific Gas & Electric building. The bomb was housed within two steel boxes: a small box, 15 inches by 12 inches which contained the dynamite and a larger box, 2 1/2 feet by 3 1/2, which was nearly three feet tall. The boxes were constructed of 1/4 inch thick steel plate, and were covered by a gray fabric marked with the letters IBM and fictitious part numbers. The boxes thus were made to look like a business machine, five to six feet long and three feet wide.

Birges included numerous safeguards against possible disarming. The bomb package contained a float switch, so that the bomb would detonate if flooded with water. The screws on the package were connected to electrical currents to avoid tampering. Aluminum was placed inside the plastic used to line the box; if the box were drilled, the drill would complete the connection. Switches were installed to trigger the bomb if the lid were removed. The bomb also contained a movement device: a tilt mechanism consisting of an eight inch tall metal cylinder, two to three inches in diameter, with a pendulum inside. If the box were moved, the motion would cause the pendulum to hit the sides of the cylinder and detonate the bomb.

Birges invited Hall and Willis Brown to assist him in delivering the bomb. The three men arrived in the Lake Tahoe area near daylight, and drove to the casino. Birges showed Hall and Brown which door to use to deliver the bomb. They then checked into a motel. Hall registered under the name "Joey Avetto" and set forth a false address. When they left the motel in the middle of the night, the men wiped all traces of fingerprints from the room.

The three men took the bomb to the casino and parked across the street from Harvey's. A license plate was stolen from the rear of another van parked nearby. Birges and Hall attached it with rubber bands over their van's existing plate.

The men then placed the bomb on a specially constructed cart, tied the cart to the back bumper of the truck and pulled into Harvey's lot.

Birges left the other two men, and entered the casino. Hall and Brown took the cart to the casino entrance. The package was removed from the cart and pushed through the lobby to the elevator.

The device was placed in the elevator and taken up to the offices of the casino. The bomb was left in the hallway after the gray cover was removed.

The ransom note left with the bomb requested the delivery of three million dollars to a specified place in the desert. The note contained a warning that the bomb should not be touched because it might explode accidentally. The bomb exploded the following day during an attempt to deactivate it.

The case received extensive coverage in newspapers, radio and television. Most of the publicity occurred within the first two months after the bombing.

At trial, Birges admitted constructing the bomb, but testified that he did so under duress. He told the jury that people in the "mob" forced him to commit the act in order to collect the destruction insurance. According to Birges, a "mob" figure named Charlie caused two men to assault Birges in order to force him to carry out the extortion plan.

In his defense Hall testified that he was a "dupe" in the scheme. He was told they were delivering a package to the office of the casino owner as a joke and did not know that the package contained a bomb.

I. Effectiveness of Counsel

Birges argues that he was denied his Sixth Amendment right to effective assistance of counsel because his counsel failed to subpoena witnesses and present his desired defense.

Where ineffectiveness of counsel is alleged, the defendant must point to errors or omissions in the record on appeal which establish that he did not receive adequate representation. Cooper v. Fitzharris, 586 F.2d 1325, 1332 (9th Cir.1978) (en banc ), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979). He has the further burden of demonstrating from the record that there is a reasonable likelihood that counsel's errors or omissions prejudiced his right to a fair trial. United States v. Tucker, 716 F.2d 576, 587-92 (9th Cir.1983); Cooper v. Fitzharris, 586 F.2d at 1331. See also Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 1060, 31 L.Ed.2d 340 (1972) (unless "reasonable possibility" that improperly admitted evidence contributed to conviction, reversal is not required); United States v. Valle-Valdez, 554 F.2d 911, 915 (9th Cir.1977) (where constitutional error occurs, defendant must show reasonable possibility of prejudice).

The customary procedure for challenging the effectiveness of defense counsel in a federal criminal trial is by collateral attack on the conviction under 28 U.S.C. Sec. 2255. United States v. Kazni, 576 F.2d 238, 242 (9th Cir.1978). This is so because usually such a claim cannot be advanced without the development of facts outside the original record. Id.

In People v. Pope, 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859 (1979), the California Supreme Court cogently urged reviewing courts to exercise caution in tackling insufficiency of counsel claims on direct appeal where the record is incomplete.

Otherwise, the appellate courts would become engaged in the perilous process of second-guessing. (Citation omitted) Reversals would be ordered unnecessarily in cases where there were, in fact, good reasons for the aspect of counsel's representation under attack. Indeed, such reasons might lead a new defense counsel on retrial to do exactly what the original counsel did, making manifest the waste of judicial resources caused by reversal on an incomplete record.

People v. Pope, 23 Cal.3d 412 at 426, 152 Cal.Rptr. 732, 590 P.2d 859.

In the present case, the record is not sufficient for us to analyze the effectiveness of Birges' counsel. We cannot ascertain from the record what evidence the requested witnesses would have provided, nor can we gauge the impact their testimony might have had on Birges' defense.

II. Communication with the Jury

Birges contends that his motion for a new trial was improperly denied. Specifically, he challenges the propriety of two communications between the judge and jury which occurred during jury deliberations.

A. Communication Concerning Dictionary

Birges contends that the trial judge, in response to a request, erroneously supplied a dictionary to the jury. He complains that the dictionary is a supplemental instruction, requiring counsel to be informed and defendant to be present, pursuant to Fed.R.Crim.P. 43. Rule 43 guarantees to a defendant in a criminal trial the right to be present "at every stage of the trial including the impaneling of the jury and the return of the verdict..." A violation of the rule does not compel reversal unless a reasonable possibility of prejudice is shown. United States v. Alessandrello, 637 F.2d 131, 139 (3d Cir.1980), cert. denied, 451 U.S. 949, 101 S.Ct. 2031, 68 L.Ed.2d 334 (1981).

This issue was presented to the court in United States v. Gunter, 546 F.2d 861 (10th Cir.1976), cert. denied, 431 U.S. 920, 97 S.Ct. 2189, 53 L.Ed.2d 232 (1977). In Gunter, the court stated:

The jury, while deliberating, sent a note to the judge asking for a definition of the word "tacitly." Without consulting with counsel, the trial judge simply sent a Webster's dictionary into the jury room. Such may well have been error, but if it be deemed error, it was most certainly harmless error. No prejudice has been shown.

Gunter, 546 F.2d at 869.

Unlike the court in Gunter, we have no doubt that the sending of a dictionary into the jury room, without...