U.S. v. Dadanian
| Decision Date | 04 June 1987 |
| Docket Number | Nos. 85-5095,85-5248,s. 85-5095 |
| Citation | 818 F.2d 1443 |
| Parties | 23 Fed. R. Evid. Serv. 141 UNITED STATES of America, Plaintiff-Appellee, v. George DADANIAN and Jean Dadanian, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Howard L. Weitzman and Jerald W. Newton, Santa Monica, Cal., for defendants-appellants.
Fred Heather and Janet Goldstein, Los Angeles, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before CHAMBERS and KOZINSKI, Circuit Judges, and STRAND, * District Court Judge.
This appeal arises from the conviction of George and Jean Dadanian, brothers, for mail fraud and running an illegal gambling business. See 18 U.S.C. Secs. 1341, 1955. George Dadanian was also convicted of interstate travel in aid of a racketeering enterprise and racketeering. See 18 U.S.C. Secs. 1952, 1962(c). Appellants challenge their convictions on several grounds. We find that none of these grounds warrants reversal and affirm.
This prosecution was the result of the Dadanians' involvement in a fraudulent scheme to acquire a poker license in the City of Bell, California.
John Pitts, the Bell City Administrator and Peter Werrlein, a Bell City Councilman, persuaded the City of Bell to authorize poker playing and to grant one poker club license in the city to the California Bell Club (CBC) in which they held a secret fifty-one percent interest. Initially Kevin Kirwan held Pitts' and Werrlein's interest on their behalf. A dispute arose between Kirwan and Pitts, and Pitts decided to change his front man from Kirwan to George Danadian. In order to preserve the appearance that Kirwan was selling his club interest to Dadanian rather than transferring Pitts' hidden interest, the Dadanians paid Kirwan with money he was to return to them "under the table." George Dadanian and Kirwan traveled from Los Angeles to Las Vegas where they executed the documents for the interest transfer.
When the Dadanians applied to the Bell city council for approval to hold an interest in the CBC, they failed to disclose their interest was secretly held for Pitts. George Dadanian held Pitts' interest in exchange for which Pitts agreed to assist the Dadanians in acquiring a second poker club license in the City of Bell. Also, it was decided Pitts would receive $5,000 a month from the CBC distributions paid to the Dadanians. Pitts entered into a plea agreement with the government and testified against the Dadanians at trial.
The Dadanians first contend that the district court erred in admitting Pitts' testimony that his plea agreement provided he would "truthfully and honestly cooperate with the government" and in admitting the agreement itself. They argue this evidence constituted impermissible vouching for Pitts.
Because the Dadanians did not object at trial to this portion of Pitts' testimony or to admission of the agreement, United States v. Hurt, 795 F.2d 765, 773 (9th Cir.1986), modified, 808 F.2d 707 (1987). "Plain error is shown if the evidence was inadmissible and its admission affected the outcome and [defendants'] right to a fair trial." United States v. Houser, 804 F.2d 565, 570 (9th Cir.1986).
Vouching may occur if the prosecution places the prestige of the government behind the witness or indicates that information not before the jury supports the witness's testimony. Lawn v. United States, 355 U.S. 339, 359-60 n. 15, 78 S.Ct. 311, 323 n. 15, 2 L.Ed.2d 321 (1958). Only the first type of vouching is at issue here.
The Dadanians' reliance on United States v. Roberts, 618 F.2d 530 (9th Cir.1980) to demonstrate impermissible vouching is misplaced. In Roberts the prosecutor during closing argument referred to evidence not in the record by declaring that a detective had monitored the trial testimony of a government witness. The jury could naturally infer that the detective had personal knowledge of relevant facts and was satisfied that these facts were accurately stated by the witness. We found the inference to be improper vouching for the credibility of a government witness.
No such vouching occurred here. The government did not offer personal assurances of Pitts' veracity. The government did not point to evidence outside the record or create an improper inference as to Pitts' credibility. We have upheld the admission of "truthful testimony" portions of a cooperation agreement with the government where the agreement was relevant to material facts at issue and the party to the agreement was subject to cross examination as to his motives. See United States v. Rohrer, 708 F.2d 429, 433 (9th Cir.1983). We do so again here. The agreement was relevant to the material facts at issue and Pitts was subject to extensive cross-examination. As admission of the terms of the plea agreement was proper, appellants have failed to demonstrate plain error.
The Dadanians argue also that trial counsel should have objected to the introduction into evidence of Pitts' plea agreement with the government. They contend failure to do so constituted ineffective assistance. We reject this argument. Since admission of the terms of the agreement was proper, failure to make the objection did not fall below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). Moreover, this failure did not prejudice the Dadanians so that it was reasonably likely to have altered the outcome of their trial. Id., at 694, 104 S.Ct. at 2068.
The mail fraud counts of the indictment charged the mailing of false statements of economic interest by Pitts to the California Fair Political Practices Commission. In completing the statements, Pitts failed to disclose his hidden interest in and income from the California Bell Club. Count Nine also charged the mailing of a letter by Pitts to a plaintiff in a lawsuit filed by the limited partners of the CBC against the Danadians alleging the secret ownership arrangement. Enclosed with the letter was a copy of a false economic interest form. The letter urged Pitts be dismissed from the lawsuit.
The Dadanians contend there is insufficient evidence to support their convictions for mail fraud because the government failed to establish that the mailings were reasonably foreseeable. They also contend the mailing by Pitts of false statements of economic interest was in his official capacity and "legally compelled."
In reviewing a claim for insufficient evidence, this court must determine after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. United States v. Stewart, 770 F.2d 825, 831 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 888, 88 L.Ed.2d 922 (1986), [citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ].
The elements of mail fraud are: (1) a scheme or artifice to defraud; and (2) use of the mails in furtherance of the scheme. United States v. Vaughn, 797 F.2d 1485, 1492-93 (9th Cir.1986). One causes the mail to be used when he "does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended." Pereira v. U.S., 347 U.S. 1, 8-9, 74 S.Ct. 358, 362-63, 98 L.Ed. 435 (1954).
"It is well settled ... that so long as one participant in a fraudulent scheme causes a use of the mails in execution of the fraud, all other knowing participants in the scheme are legally liable for that use of the mails." United States v. Toney, 598 F.2d 1349, 1355 (5th Cir.1979), cert. denied, 444 U.S. 1033, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980).
In viewing the evidence in the light most favorable to the government, a jury could reasonably find that the Danadians could have foreseen that Pitts, as Bell City Administrator, would file statements of economic interest with the Fair Political Practices Commission. Since the concealment of Pitts' CBC financial interest was the cornerstone of the scheme to defraud, it was reasonably forseeable that Pitts would falsify and mail his economic interest statements to ensure nondisclosure. Similarly, the mailing of the letter denying Pitts' interest in CBC to the limited partners who had sued the Dadanians was reasonably forseeable. A rational jury could have found beyond a reasonable doubt that the Dadanians knew of the scheme to defraud and that the mail was used in furtherance thereof.
We reject appellants' contention that their mail fraud convictions are invalid under Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960) because the mailings were "legally compelled." In Parr the mailing of tax assessments which did not contain misrepresentations was held not to be an unlawful execution of a fraudulent scheme to embezzle school district funds since the defendants were required by law to assess and collect taxes, and because the tax assessments were neither alleged nor proved to be illegal, excessive or padded. Id., at 387, 391, 80 S.Ct. at 1181, 1183. Here Pitts' statements of economic interest, while required by law to be filed, were false on their face. Unlike Parr, these false statements were made in furtherance of the scheme to keep secret that Dadanian held the CBC interest for Pitts. See United States v. Bagnariol, 665 F.2d 877, 899 (9th Cir.1981) (per curiam), cert. denied, 456 U.S. 962, 102 S.Ct. 2040, 72 L.Ed.2d 487 (1982).
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