U.S. v. Boone

• Citation: 951 F.2d 1526
• Decision Date: 05 December 1991
• Docket Number: Nos. 89-30077,89-30079,89-30086 and 89-30087,s. 89-30077
• Parties: -481, 92-1 USTC P 50,179 UNITED STATES of America, Plaintiff-Appellee, v. Elijah Albert BOONE, Dehlia E. Boone, Jerry Boone and Roger Swayze, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1526

951 F.2d 1526

69 A.F.T.R.2d 92-481, 92-1 USTC P 50,179

UNITED STATES of America, Plaintiff-Appellee, v. Elijah Albert BOONE, Dehlia E. Boone, Jerry Boone and Roger

Swayze, Defendants-Appellants.

Nos. 89-30077, 89-30079, 89-30086 and 89-30087.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted, Oct. 4, 1990.

Decided Dec. 5, 1991.

Byron K. Meredith, Nampa, Idaho, for defendants-appellants Elijah Albert Boone and Dehlia Boone.

David K. Swanson, Swanson & Setzke, Boise, Idaho, for defendant-appellant Jerry Boone.

William C. Roden, Roden, Arkoosh & Riceci, Boise, Idaho, for defendant-appellant Roger Swayze.

George W. Breitsameter, Asst. U.S. Atty., Boise, Idaho, for plaintiff-appellee.

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

Before HUG, D.W. NELSON, Circuit Judges, and CARROLL, ^* District Judge.

D.W. NELSON, Circuit Judge:

Appellants Dehlia Boone and Roger Swayze were involved along with Albert and Jerry Boone in the promotion and sale of undivided interests in mining claims on Miller Mountain, located outside of Lowman, Idaho. Albert Boone was the principal promoter of their scheme to sell mining shares. Dehlia Boone maintained the companies' books and managed their finances. Jerry Boone staked the mining claims and Roger Swayze joined the Boones in 1984 to manage the office located in Boise, Idaho.

The government alleges that their scheme to sell mining shares was a scam; that the Boones and Swayze knew that the minerals on Miller Mountain were of no commercial value and nonetheless induced hundreds of people to invest millions of dollars in their fraudulent venture. The government presented evidence that Albert and Dehlia Boone, assisted by Roger Swayze, diverted investor money to their personal use. Later, they attempted to hide documents revealing promises of income distribution and investor records showing that the Boone entities had issued stock in violation of 15 U.S.C. § 77e(a) and § 77x. No dividends were ever distributed to investors and no commercial production or sale was ever consummated.

Albert, Dehlia and Jerry Boone and Roger Swayze were indicted in 1987 on various counts of securities fraud, mail fraud, transportation of stolen property, conspiracy, perjury and making false statements to a government agency. The government alleges that their conspiracy to sell fraudulent claims began in 1979 and continued until approximately February 1, 1987. Defendant Dehlia Boone appeals her sentence and conviction for conspiracy to commit fraud in violation of 18 U.S.C. § 371 and income tax evasion in violation of 26 U.S.C. § 7201. Dehlia Boone also appeals her convictions for interstate transportation of stolen property under 18 U.S.C. § 2314 and mail fraud under 18 U.S.C. § 1341. Albert Boone appeals his convictions for securities fraud under 15 U.S.C. § 77q(a) and § 77x, interstate transportation of stolen property under 18 U.S.C. § 2314, mail fraud under 18 U.S.C. § 1341, making a false statement to a government agency under 18 U.S.C. § 1001 and income tax evasion under 26 U.S.C. § 7201. Roger Swayze appeals his convictions for mail fraud under 18 U.S.C. § 1341, making a false statement to a government agency under 18 U.S.C. § 1001, conspiracy under 18 U.S.C. § 371 and perjury under 18 U.S.C. § 1623. Jerry Boone appeals his conviction for conspiracy under 18 U.S.C. § 371.

We affirm the District Court's conviction of Dehlia Boone on counts 36 (conspiracy), 39, 40 and 41 (income tax evasion) as consistent with the jury's verdict. We affirm Roger Swayze's conviction on count 37 for perjury, but reverse his conviction on count 38. We affirm the convictions of Albert and Jerry Boone on all counts.

I. Dehlia Boone's Convictions on Counts 36, 39, 40 and 41

After a 19 day trial of Albert Boone, Dehlia Boone, Jerry Boone and Roger Swayze on allegations of fraud, income tax evasion, interstate transportation of stolen goods and other charges, the jury returned a verdict on December 28, 1988. The written verdict form the jurors delivered to the judge indicated that they found Dehlia Boone not guilty on counts 1 and 3-10, guilty on counts 11-15 and 17-25, not guilty on counts 27-33 and guilty on counts 36 and 39-41. The written verdict form was signed by the jury foreman. In open court, however, the judge read the verdict as "not guilty on Counts 1-10. Guilty on Counts 11-25. And not guilty on Counts 27 through 41." ¹ (emphasis added). The written verdict and the oral verdict contradict each other with regard to counts 36 (conspiracy) and 39-41 (income tax evasion).

Neither counsel had a copy of the written verdict at the time the verdict was read in court. Thus, both parties were unaware of the discrepancies between the two verdicts at the time the verdict was entered.

After reciting the verdict, the judge polled the jury as a group, asking "Members of the jury, is this your true and correct verdict, so say you one, so say you all?" The jurors responded, "Yes." After setting the sentencing date for March 10, 1989, the judge dismissed the jury and directed the clerk to enter the verdict.

The written verdict entered at the conclusion of that day's proceedings stated that Dehlia Boone was found guilty on counts 36 and 39-41. In accordance with the pre-sentence report which was based upon the written verdict, the court sentenced Dehlia Boone to two years in prison on count 36, put her on probation for five years for counts 39-41, ordered her to file and pay her income taxes and to pay the costs of prosecution for counts 39-41. She was also sentenced to two years in prison (the terms to run concurrently with the conspiracy sentence) on counts 11-15 (interstate transportation of stolen property) and 17-25 (mail fraud). Dehlia Boone's trial counsel did not raise the issue of the contrary jury verdicts at the time of sentencing.

The government argues that Dehlia Boone waived her right to appeal her conviction on these counts by not raising the issue at the time of sentencing. It contends that the pre-sentence report based on the written verdict placed defendant Dehlia Boone on notice of the discrepancy by indicating that she had been found guilty on counts 36 and 39-41.

On appeal, Dehlia Boone, represented by new counsel, claims that her sentence and conviction on these counts were plain error. She argues that it violated her rights as a defendant to be present at the reception of the verdict, Fed.R.Crim.P. 43, and to have a unanimous verdict returned in open court, Fed.R.Crim.P. 31(a). Dehlia Boone argues that she did not waive the error by failing to object below.

A. Waiver of Right to Object to Variance in Verdicts

Since the offenses at issue were committed prior to November 1, 1987, the effective date of the Sentencing Guidelines, the Guidelines do not apply here. United States Sentencing Commission, Guidelines Manual, § 1.1 (Nov. 1990). Whether Dehlia Boone waived her right to object to the variance in the verdicts is a question of law and is reviewed de novo. United States v. McConnney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

The government contends that Dehlia Boone waived her right to object to the variance in the verdicts by not polling the jurors before the verdict was recorded ² and by not raising the issue at the time of sentencing. Dehlia Boone contends that she did not request that the jurors be polled individually since the court had declared her not guilty on these counts. We note that proper procedure requires both counsel to check the written verdict as submitted to the judge against what they heard in court. This should be done as soon as possible after the verdict is read, preferably before it is entered. Had the discrepancy been discovered through such a procedure, it might have been possible to poll the jurors individually to determine which was their true verdict.

Unfortunately, the discrepancy was not discovered until much later. The government stresses that the pre-sentence report put Dehlia Boone on notice of the discrepancy and that she should have raised the issue at sentencing. However, Dehlia Boone had no legal right to ask for a jury poll at that time since the verdict had already been entered. If a poll is not requested before the verdict is recorded, the request comes too late. See United States v. Morris, 612 F.2d 483, 489 n. 10, 490 n. 15 (10th Cir. 1979).

Despite the fact that a request to poll the jury would have been untimely, the government presses this point, relying on E.F. Hutton & Co. v. Arnebergh, 775 F.2d 1061, 1064 (9th Cir.1985), cert. denied, 476 U.S. 1141, 106 S.Ct. 2248, 90 L.Ed.2d 694 (1986), for the proposition that timely objection at sentencing would have avoided prejudice. Hutton was a civil case where the jury was reconvened six weeks later to clarify an ambiguous written verdict.

A court treads on dangerous ground when it reassembles the jurors to clarify a verdict after the trial has concluded. In People v. Romero, 31 Cal.3d 685, 183 Cal.Rptr. 663, 646 P.2d 824 (1982) the California Supreme Court summarized the problem with belated jury polls:

... in [People v.] Grider [246 Cal.App.2d 149, 54 Cal.Rptr. 497 (1966) ] the miscue was caught and rectified in a matter of minutes; here, the error, if any there was, was not brought to the court's attention for almost two months. It goes without saying that in two months memories may fail, and in the interim, ex parte contact with former jurors by dissatisfied litigants may encourage jurors to falsify or invent facts.

Id. at 691-92, 183 Cal.Rptr. 663, 646 P.2d 824.

Dehlia Boone was sentenced approximately 3 months after the verdict was rendered. By then, the jurors' memories had probably begun to fade. By now, more than two years after the verdict was read, the trial is undoubtedly an event remembered in the haze of bygone years.

It is unfortunate that neither the...