U.S. v. Bordallo

• Citation: 857 F.2d 519
• Decision Date: 30 August 1988
• Docket Number: No. 87-1092,87-1092
• Parties: 26 Fed. R. Evid. Serv. 1188 UNITED STATES of America, Plaintiff-Appellee, v. Ricardo BORDALLO, Governor of Guam, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 519

857 F.2d 519

26 Fed. R. Evid. Serv. 1188

UNITED STATES of America, Plaintiff-Appellee, v. Ricardo BORDALLO, Governor of Guam, Defendant-Appellant.

No. 87-1092.

United States Court of Appeals, Ninth Circuit.

Argued June 15, 1988.

Submitted July 25, 1988.

Decided Aug. 30, 1988.

Howard Trapp, Howard Trapp Incorporated, Agana, Guam, for defendant-appellant.

K. William O'Connor, U.S. Atty., Agana, Guam, for plaintiff-appellee.

Appeal from the United States District Court for the Territory of Guam.

Before SCHROEDER and WIGGINS, Circuit Judges, and KELLEHER, ^* District Judge.

SCHROEDER, Circuit Judge:

Ricardo Bordallo, former Governor of Guam, appeals his conviction, after a jury trial, of criminal charges including extortion, bribery, and witness tampering. The charges stemmed from Bordallo's acceptance of cash payments totaling $79,600 in exchange for the award of government contracts. Bordallo characterized the payments as "campaign contributions" with "no strings attached." On appeal, Bordallo challenges the jury selection process, the sufficiency of the evidence, evidentiary rulings, and the jury instructions. We affirm Bordallo's convictions for witness tampering and conspiracy to obstruct justice. We reverse Bordallo's convictions for bribery, conspiracy to commit bribery, extortion, and conspiracy to commit extortion.

BACKGROUND

Bordallo was elected the Governor of Guam in 1982, and his term was to expire In the TC & C payoff, Johnny Carpio, owner of an engineering firm and a political supporter of Bordallo, was approached by TC & C, Inc. in September 1984. TC & C offered to make a $50,000 to $100,000 "campaign contribution" to Bordallo in exchange for Bordallo's help in obtaining approval for its proposed scrap metal plant. Carpio conveyed the message to Bordallo. On December 10, 1984, TC & C delivered $50,000 cash to Carpio's office. Carpio kept $10,000 for himself and gave the remaining $40,000 to Bordallo in a manila envelope, stating that it was TC & C's "initial contribution." Two hours later, Bordallo approved the TC & C project. On October 11, 1985 and January 15, 1986, Carpio delivered two more cash "contributions" of $10,000 each from TC & C to Bordallo. Each time Bordallo accepted the money with the rote proclamation, "there's no strings attached."

on January 4, 1987. In September 1986, the Guam Federal Grand Jury indicted Bordallo on criminal charges. The Government's case centered on four transactions occurring while Bordallo was Governor. These are characterized in the record as: (1) the TC & C payoff, (2) the Sood/Sablan transaction, (3) the IT & E payoff, and (4) the Jones gratuity.

In the Sood/Sablan transaction, Vinay Sood, owner of another engineering firm and also a Bordallo supporter, was awarded a government contract for a $103,000 project on the condition that Sood hire Herman Sablan, Bordallo's campaign manager.

The IT & E payoff involved $39,000 owed by the Guam Telephone Authority (GTA) to IT & E, a private local telephone corporation. At Sablan's suggestion, GTA, whose chief executive was related to Bordallo by marriage, agreed to pay the $39,000 it owed to IT & E on the condition that IT & E would deliver the funds to Bordallo as a "campaign contribution." GTA paid the bill in two installments. John Borlas, an IT & E executive, delivered the first installment of $9,600 cash to Bordallo in a plain envelope, which Bordallo accepted. The second installment was paid by GTA to IT & E but no payment was made to Bordallo because the FBI's investigation of Bordallo had then become known.

Finally, in the Jones gratuity, Kenneth Jones, owner of substantial business interests on Guam, presented Bordallo with $10,000 cash in a plain envelope as a "present." Jones claimed there were "no strings attached."

On September 3, 1986, the Guam Federal Grand Jury indicted Bordallo on criminal charges. On November 20, 1986, the grand jury issued a superseding indictment charging Bordallo with two counts of conspiracy to commit extortion under 18 U.S.C. Sec. 1951, three counts of extortion under 18 U.S.C. Sec. 1951, four counts of bribery or gratuity under 18 U.S.C. Sec. 666(b), conspiracy to commit bribery under 18 U.S.C. Sec. 371, attempted extortion under 18 U.S.C. Sec. 1951, four counts of fraud by wire under 18 U.S.C. Sec. 1343, conspiracy to obstruct justice under 18 U.S.C. Sec. 371, and witness tampering under 18 U.S.C. Sec. 1512. These counts stemmed from the four transactions previously described and from related conspiracies and coverups.

Bordallo's jury trial on these seventeen counts began January 12, 1987. On February 13, 1987, the unanimous jury convicted Bordallo of ten of the seventeen counts--two counts of conspiracy to commit extortion, two counts of extortion, three counts of bribery or gratuity, one count of conspiracy to commit bribery, one count of conspiracy to obstruct justice, and one count of witness tampering. Bordallo was acquitted of one count of attempted extortion, one count of extortion, one count of bribery or gratuity, and four counts of fraud by wire. The district court sentenced Bordallo to three years imprisonment on each of the ten counts, with the sentence of imprisonment on seven of the counts to run concurrently. The court then suspended the concurrent sentence, leaving Bordallo with a nine-year prison term. The court also sentenced Bordallo to five years probation, to a total of $35,000 in fines, to an assessment fee of $500, and to $79,600 in restitution. Bordallo timely appeals pursuant to 28 U.S.C. Sec. 1291.

DISCUSSION

On appeal, Bordallo challenges (1) the jury selection process, (2) the sufficiency of the evidence, (3) two evidentiary rulings, and (4) four of the jury instructions.

A. Jury Selection Process

Bordallo's trial commenced on January 12, 1987. On that day, before the proceedings officially began at 9:45 a.m., and while the veniremembers were in the courtroom, the district judge excused some of the prospective jurors. Neither Bordallo nor his counsel were present; although the record is unclear, it appears that the prosecuting attorneys also were not present. The prospective jurors knew which case they would hear if chosen as a juror, and some were excused specifically because they were friends or supporters of Bordallo. Bordallo learned of the district judge's actions through discussions with some excused jurors outside the courtroom.

Almost immediately after formal proceedings began, Bordallo objected to the release of the jurors in his absence. At the conclusion of opening arguments, Bordallo moved for a mistrial on this basis. The court denied the motion, stating that the released jurors were veniremembers not yet impaneled.

Fed.R.Crim.P. 43(a) provides that the defendant "shall be present" at every stage of trial, including the impaneling of the jury.

(a) Presence Required. The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.

Fed.R.Crim.P. 43(a). Both Bordallo and his counsel were present at the voir dire examination, and in fact, at all proceedings involving the jury from the time that the thirty-nine prospective jurors were sworn.

The defendant's right to be present during the trial emanates from due process. The Supreme Court has held "that the orderly conduct of a trial by jury, essential to the proper protection of the right to be heard, entities the parties who attend for the purpose to be present in person or by counsel at all proceedings from the time the jury is impaneled until it is discharged after rendering the verdict." Rogers v. United States, 422 U.S. 35, 38, 95 S.Ct. 2091, 2094, 45 L.Ed.2d 1 (1975) (citation omitted); see also Shields v. United States, 273 U.S. 583, 588-89, 47 S.Ct. 478, 479-80, 71 L.Ed.2d 787 (1927); United States v. Frazin, 780 F.2d 1461 (9th Cir.), cert. denied, 479 U.S. 844, 107 S.Ct. 158, 93 L.Ed.2d 98 (1986).

There is authority that Rule 43 requires the defendant's presence at the voir dire examination of prospective jurors. Virgin Islands v. George, 680 F.2d 13 (3d Cir.1982); United States v. Crutcher, 405 F.2d 239 (2d Cir.1968), cert. denied, 394 U.S. 908, 89 S.Ct. 1018, 22 L.Ed.2d 219 (1969). Clearly counsel must be present for the examination of the prospective jurors and exercise of peremptory challenges. See Fed.R.App.P. 24. At the stage of voir dire, the prospective jurors are questioned about their knowledge of a specific case; the jurors know what case they will hear if selected and know which parties are involved. At least one court has said that "an accused in a capital case has a constitutional right to be continuously present at all stages of the proceedings from arraignment to final sentence, including a proceeding where jurors for the trial of the case are challenged and their qualifications inquired into." Welch v. Holman, 246 F.Supp. 971, 973-74 (M.D.Ala.1965), aff'd, 363 F.2d 36 (5th Cir.1966). But Welch did not extend that right to all court contacts with jurors.

It is thus not surprising that there is authority that the defendant has no right to be present during the drawing of the jury by the jury commissioners. Pope v. United States, 287 F.Supp. 214 (W.D.Tex.1967), aff'd, 398 F.2d 834 (5th Cir.1968), cert. denied, 393 U.S. 1097, 89 S.Ct. 886, 21 L.Ed.2d 787 (1969). The drawing of names is a ministerial act occurring before a specific case is called for trial, and thus does not involve juror qualifications as related to a particular criminal case. As Judge This case falls somewhere between the ministerial stage of drawing the prospective juror pool and the formal pretrial narrowing of the pool through voir dire for a particular trial. We conclude the present situation is more appropriately analogized to voir dire, because the prospective jurors knew...