U.S. v. Daly, s. 81-1654

Citation716 F.2d 1499
Decision Date04 October 1983
Docket Number81-1655,81-1661 and 81-1731,Nos. 81-1654,81-1657,s. 81-1654
Parties, 14 Fed. R. Evid. Serv. 531 UNITED STATES of America, Plaintiff-Appellee, v. Daniel Michael DALY, Harold Dean Klemp, Joseph Diaz, Gene Floyd Criswell, and Michael Richard Ryan, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

William J. Landers, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Terry Amdur, Norman D. James, Heaney, James & Hearn, Jay Lichtman, Ernest C. Chen, Los Angeles, Cal., Alan M. May, Santa Ana, Cal., for defendants-appellants.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN, HUG and BOOCHEVER, Circuit Judges.

HUG, Circuit Judge:

This is the consolidated appeal of the convictions of Daly, Klemp, Diaz, and Criswell, who were tried together, and of Ryan, who was tried separately on charges arising out of the same indictment. The case involves a car theft scheme by which expensive automobiles were stolen; the motor numbers were changed; counterfeit Nevada or California certificates of title were prepared with the false numbers; and these counterfeit titles were taken to Nebraska, where new title certificates were issued, based upon the counterfeit titles. Thereafter, the stolen cars were sold with the Nebraska title certificates. The indictment charged the defendants with transportation of falsely made securities in interstate commerce in violation of 18 U.S.C. Sec. 2314, with receiving and selling falsely made securities that had traveled interstate in violation of 18 U.S.C. Sec. 2315, with conspiracy to commit those offenses, and with causing the transportation of stolen motor vehicles in interstate commerce in violation of 18 U.S.C. Secs. 2312 and 2(b).

The principal issues involved are (1) whether certain defendants were allowed the minimum 30-day period for trial preparation prescribed by the Speedy Trial Act; (2) whether a juror should have been dismissed for cause; (3) whether the Nebraska title certificates were "securities" and were "falsely made" within the meaning of sections 2314 and 2315; (4) whether there was sufficient evidence to sustain the convictions on various counts; (5) whether it was error to admit testimony of a codefendant; (6) whether it was error, in violation of the Bruton standard, to admit the statement of a non-testifying codefendant; and (7) whether a continuance should have been granted to defendant Ryan because of the unavailability of a witness.

FACTS

On appeal we must view the evidence in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). So viewed, the evidence reveals that during 1979 and 1980, Gene Criswell masterminded a car theft ring which operated in southern California. Under Criswell's direction, a number of persons, including Joseph Diaz, stole Mercedes, Datsun, and Rolls Royce automobiles. They turned the cars over to Criswell, who, with the help of Diaz and They also had printed blank counterfeit California and Nevada certificates of title. Criswell and others completed these "pink slips" to correspond with the altered VIN's. The certificates listed "Gene Collins" or "Collins Auto Leasing," two aliases used by Criswell, as owning the cars.

others, affixed a new vehicle identification number ("VIN"), either by obliterating the VIN under the hood or by replacing the federal standards plate. 1

Criswell and Klemp traveled to Nebraska several times to exchange these counterfeited "pink slips" for valid certificates of title. Nebraska's vehicle registration policy does not require a car's presence in the state, nor does it direct that the state in which the vehicle was previously registered be notified of the impending registration transfer. Criswell and the others were thus able to register the stolen cars simply by turning over the counterfeit pink slips to the Nebraska authorities. They took only the counterfeit slips to Nebraska; the stolen cars themselves remained in California.

Once they had obtained the Nebraska title certificates, Criswell and the others enlisted Daniel Daly to help sell the cars, at very attractive reduced prices, to innocent purchasers. Prospective buyers were told that the cars were registered in Nebraska because they had been repossessed from lienholders and leasing companies there. In all, Criswell's operation sold 15 cars at prices ranging from $5,000 to $45,000 per car. Criswell took in nearly $400,000. The purchasers, many of whom had either driven or had the cars delivered to out-of-state homes, ultimately lost both the cars and the money they had paid for them, when authorities seized the cars.

The grand jury issued an indictment charging Criswell, Klemp, Daly, Diaz, and Ryan with conspiracy in violation of 18 U.S.C. Sec. 371. The indictment also included 24 individual counts charging the various defendants with engaging in specific instances of misconduct in violation of 18 U.S.C. Sec. 2314 (transporting falsely made securities in interstate commerce), 18 U.S.C. Sec. 2315 (receiving and selling falsely made securities that have traveled in interstate commerce), and 18 U.S.C. Sec. 2312 (interstate transportation of stolen vehicles).

Except for Ryan, all of the defendants named in the indictment were immediately arrested and arraigned. Following a jury trial, Criswell was convicted on the conspiracy count, two counts of transporting falsely made securities, four counts of receiving falsely made securities, and three counts of aiding and abetting the transportation of stolen vehicles in interstate commerce. Daly was convicted on the conspiracy count and two counts of receiving falsely made securities. Klemp was convicted on the conspiracy count, two counts of transporting falsely made securities, and three counts of transportation of stolen vehicles in interstate commerce. Diaz was convicted on the conspiracy count and one count of receiving falsely made securities.

Ryan, who was not arrested until after the conclusion of the other defendants' trial, was later convicted of conspiracy and three counts of receiving falsely made securities.

ANALYSIS
I. Speedy Trial Act

Appellants Daly, Diaz, Criswell, and Klemp claim the district judge erred in bringing them to trial before the minimum 30-day waiting period prescribed by the Speedy Trial Act (the "Act"), 18 U.S.C. Secs. 3161-3174. The day after the grand jury issued its indictment, authorities arrested Criswell, Klemp, and Daly. On the same day, August 14, they appeared with Criswell, Klemp, Daly, and Diaz argue that their convictions should be reversed and the indictment against them dismissed because the district judge, in beginning their trial on September 15, did not allow the minimum 30 days prescribed by 18 U.S.C. Sec. 3161(c)(2). Their argument raises not only the issue of whether the district judge complied with the dictates of the Act, but also the question of the proper remedy for such a violation.

counsel before a United States Magistrate for determination of their bail status. Criswell, Daly, and Diaz were arraigned on August 17, at which time they pleaded not guilty. Klemp pleaded not guilty at his arraignment on August 20. The district judge, after taking the pleas, set September 15 as the date on which the defendants' consolidated trial would begin.

Section 3161(c)(2) provides:

Unless the defendant consents in writing to the contrary, the trial shall not commence less than thirty days from the date on which the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se.

The question raised by appellants' claim is the meaning of the phrase "first appears through counsel." 2 Counsel have not cited, nor have we discovered, any case law interpreting this phrase. The Government contends that the 30-day period for all appellants ran from August 14, the day that Criswell, Daly, and Klemp appeared before the magistrate following their arrest. Appellants point out that their appearance before the magistrate was solely for the purpose of determining their bail status and that the magistrate was only empowered to consider their bail status. They assert that their attorneys at the August 14 appearance had been appointed to represent them only at the initial bail hearing. They therefore contend that the 30-day period ran, at the earliest, from their appearances for arraignment--August 17 for Criswell, Daly and Diaz, and August 20 for Klemp.

The district court concluded that in a multi-defendant case the 30-day period for all defendants ran from the first appearance of any one of them. The result of the district court's view is to make the existence of each defendant's statutory rights dependent on the Government's decision to join the cases and on his codefendants' availability for arrest. Nothing in section 3161(c)(2) permits this conclusion. Instead, its language indicates that each defendant must be considered on an individual basis, and we review appellants' claims in that manner.

Diaz made no appearance before the magistrate. His initial appearance in this case was at his arraignment on August 17. The earliest possible trial date for Diaz was 30 days later, on September 16. By ordering him to trial on September 15, the district judge clearly violated section 3161(c)(2) as to Diaz. 3

Klemp appeared at the bail hearing on August 14 with an attorney explicitly appointed to represent him at that hearing. We conclude that appearance did not constitute his "first appearance through counsel" for purposes of the Act. The legislative history underlying section 3161(c)(2) indicates the provision was meant to guarantee a minimum period of thirty days for the preparation of the defense. See Committee on the Administration of the Criminal Law of the Judicial Conference of...

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