U.S. v. Coleman, 81-1644

• Decision Date: 16 May 1983
• Docket Number: No. 81-1644,81-1644
• Citation: 707 F.2d 374
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robbin Lee COLEMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 374

707 F.2d 374

UNITED STATES of America, Plaintiff-Appellee, v. Robbin Lee COLEMAN, Defendant-Appellant.

No. 81-1644.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 4, 1982.

Decided May 16, 1983.

Thomas M. Coffin, Asst. U.S. Atty., Eugene, Or., for plaintiff-appellee.

James S. Coon, Portland, Or., for defendant-appellant.

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

Before WALLACE, FARRIS and POOLE, Circuit Judges.

WALLACE, Circuit Judge:

Coleman appeals his conviction on nine counts arising out of a conspiracy to murder Jeffrey Payne and recover the proceeds from fraudulently obtained life insurance policies on Payne's life. One count charged a conspiracy to commit mail fraud, and four counts involved mail fraud under 18 U.S.C Sec. 1341. The remaining counts involved the National Firearms Act, 26 U.S.C. Secs. 4181, 4182, 5801-5872: two counts of making a destructive device without complying with the statutory registration requirements under 26 U.S.C. Secs. 5822, 5861(f), and 5871; and two counts of transferring a destructive device without complying with statutory registration requirements under 26 U.S.C. Secs. 5812, 5861(e), and 5871. On appeal, Coleman claims that certain acts and omissions by his trial lawyer amounted to ineffective assistance of counsel, and that the separate sentences for making and transferring a destructive device constituted an illegal multiple punishment under the National Firearms Act. We affirm.

I

This case involves a conspiracy between Coleman and Janice Payne to insure the life of Janice's husband, Jeffrey, naming Janice as the beneficiary, and then to murder him and collect the proceeds of the policies. Between October and December 1978, Janice Payne obtained various life insurance policies on her husband without his knowledge. Coleman forged Jeffrey's signature on the applications. Coleman agreed to share part of the insurance proceeds with Nuess and Zastera if they would murder Jeffrey.

Coleman made two Molotov cocktail firebombs on March 4, 1979. On March 18, he gave the bombs to Nuess and Zastera and instructed them to kill Payne and his partner, Harry Mallon, while they were working at a mine. Coleman also armed Nuess and Zastera with a rifle and a pistol and told them to shoot Payne and Mallon if the bombs missed.

Later that day, Zastera threw the firebombs at Payne and Mallon as they emerged from the mine. Both were injured but managed to escape into the forest as Zastera unsuccessfully emptied his revolver at them.

In return for immunity, Nuess agreed to cooperate and was outfitted with a hidden recorder. In recorded conversations with Nuess, Coleman admitted planning the attempted murders, admitted signing Payne's name on one of the insurance policies, and stated that he also intended to kill Janice Payne to collect her insurance had the attack on Jeffrey been successful.

II

Coleman's first argument is that the registration requirements of the National Firearms Act operated in this case to deny him his fifth amendment right against self-incrimination. Such a fifth amendment objection must be timely raised during trial or it may not be asserted on appeal. United States v. Williams, 427 F.2d 1031, 1033-34 (9th Cir.) (fifth amendment objection to the National Firearms Act must be raised during trial), cert. denied, 400 U.S. 909, 91 S.Ct. 153, 27 L.Ed.2d 148 (1970).

Coleman concedes that the fifth amendment objection was not raised during trial, but seeks to assert the issue on appeal by claiming that he was denied effective assistance of counsel. Under Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir.1978) (en banc), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979), Coleman must show that his counsel's error reflected a failure to exercise the skill, judgment, or diligence of a reasonably competent defense attorney and that any specific acts or omissions were prejudicial to him. Id. at 1330-31. Coleman argues that an assertion of his fifth amendment privilege would have been a complete defense to the National Firearms Act charges. Thus, he contends, a reasonably competent attorney would have made the objection and its omission was clearly prejudicial to his case. We turn first to the merits of Coleman's fifth amendment claim.

His argument is an unusual one. He contends that compliance with the registration requirements of the National Firearms Act in connection with the making and transferring of the Molotov cocktail would have incriminated him for various acts of mail fraud that occurred after the making of the bomb. To follow his reasoning, it is first necessary to review the history of the National Firearms Act and the resultant fifth amendment difficulties.

In Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), the Supreme Court struck down a provision of an earlier version of the National Firearms Act as violative of the fifth amendment. Essentially, the old law required registration by a person who possessed a firearm that was made or acquired in violation of the Act. The Court held that the fifth amendment prohibited Congress from requiring an individual to provide information that amounts to an admission of guilt to a state or federal crime. Id. at 96-100, 88 S.Ct. at 729-732.

Subsequent to Haynes, Congress amended the statute to state that no information or evidence provided in compliance with the registration or transfer provisions of the Act could be used, directly or indirectly, as evidence against the registrant or applicant "in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration, or the compiling of the records containing the information or evidence." 26 U.S.C. Sec. 5848(a). Because the registration information could not be used to convict an applicant of any federal crime committed prior to or concurrent with his filing, and because the information contained in the registration would not be disclosed to state law enforcement agencies, the revised statute was upheld by the Supreme Court in United States v. Freed, 401 U.S. 601, 606, 91 S.Ct. 1112, 1116, 28 L.Ed.2d 356 (1971).

Coleman does not contend that the registration provisions are unconstitutional because they require him to incriminate himself on the charges relating to the National Firearms Act. Coleman also acknowledges that the fifth amendment cannot be used to shield him from liability for future crimes. Instead, Coleman contends that the registration requirements are unconstitutional as applied to him because they forced him to incriminate himself as to future acts for which his past acts make him criminally liable.

Essentially, Coleman's argument is as follows. He entered into the mail fraud conspiracy prior to the March 4 making and the March 18 transferring of the Molotov cocktails. However, acts committed by other members of the conspiracy, constituting violations of the mail fraud statute, occurred after the March 4 and March 18 dates. ¹ As a conspirator, Coleman would be criminally liable for these subsequent acts by co-conspirators. Thus, although registering the bomb would not have subjected him to liability for the acts prior to registration, Coleman would be liable as a member of a conspiracy for subsequent mail fraud acts of co-conspirators. In essence, Coleman states that he would be forced to give the government evidence (making and transfer of the bombs) that could be used to prosecute him on the later occurring mail fraud acts. Thus, he contends that Congress's revision of the Act does not obviate his fifth amendment claim. He contends he was forced to incriminate himself for future crimes for which he is liable based on his past acts. Moreover, he claims that his case does not involve a "career of crime about to be launched," see id. at 606-07, 91 S.Ct. at 1116-1117, but liability based on acts already launched.

We have great difficulty with his reasoning. It is not clear that the government would have been able to use the registration information to convict Coleman of the acts committed by others after the making of the bombs. If the conspiracy was formed prior to the registration, the government would be precluded from using the registration information to convict him of the conspiracy.

But more importantly, Coleman's argument appears to conflict with the Supreme Court's teaching in Freed concerning the scope of the fifth amendment. See id. The fifth amendment is not a partner in prospective criminal acts. To adopt Coleman's interpretation of the fifth amendment would mean that any deceptive practices committed as part of a larger criminal scheme would be subject to the self-incrimination clause of the fifth amendment. For example, as the government argues, a person applying for a bank loan for the purpose of buying heroin could claim that a law requiring him to disclose his purpose for wanting the loan would violate the fifth amendment. If he complied with the law and stated his reasons for the loan, under Coleman's theory this evidence could not be used to convict him of subsequent crimes, including ones for which he is liable as a member of a conspiracy. No precedent has been cited to us for such an interpretation of the fifth amendment.

Thus, we cannot say that a reasonably competent attorney would have made the argument advanced here by Coleman, or that the failure to make the argument prejudiced him in any way. Therefore, Coleman was not denied effective assistance of counsel as to the self-incrimination claim.

Coleman continues his lack of effective assistance of counsel argument by contending that his counsel improperly allowed the complete playing of a tape in which Coleman admits his role in the crime. He also points to instances in which counsel failed to object to hearsay testimony and failed to object to nonresponsive, rambling answers.

In testing...