U.S. v. DeLuca

• Citation: 692 F.2d 1277
• Decision Date: 22 November 1982
• Docket Number: Nos. 81-1523,s. 81-1523
• Parties: 11 Fed. R. Evid. Serv. 1841 UNITED STATES of America, Plaintiff-Appellee, v. Paul DeLUCA, Robert Kaye, James Danno, and John Lee, Defendants-Appellants. to 81-1526.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1277

692 F.2d 1277

11 Fed. R. Evid. Serv. 1841

UNITED STATES of America, Plaintiff-Appellee, v. Paul DeLUCA, Robert Kaye, James Danno, and John Lee Defendants-Appellants.

Nos. 81-1523 to 81-1526.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 9, 1982.

Decided Nov. 22, 1982.

David R. Evans, Los Angeles, Cal., for DeLuca.

Bernard I. Segal, Los Angeles, Cal., for Kaye.

Victor Sherman, Nasatir, Sherman, Hirsch & Re, Los Angeles, Cal., for Danno.

Anthony P. Brooklier, Marks & Brooklier, Beverly Hills, Cal., for Lee.

Janet L. Goldstein, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

Before WRIGHT, TANG, and SCHROEDER, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Kaye and three codefendants were tried on a 20-count indictment arising from Kaye's attempt to dominate the rebuilt foreign auto parts industry in southern California. He owned Universal Auto Electric company, which manufactured rebuilt electrical foreign auto parts. He did not like competition, and from 1974 to early 1980 eight competing California companies were struck by arson.

The jury reached guilty verdicts on all 20 counts, finding all defendants guilty of conspiracy and racketeering. Defendants Lee and DeLuca were convicted of additional counts of extortion based on threats to Kaye's competitors. The jury found Danno guilty also of several explosives counts and several corresponding counts of extortion by physical violence based on the same incidents. Kaye was guilty on all counts.

I. The Grand Jury

Kaye contends the indictment should be dismissed and argues that much of the evidence before the indicting grand jury was hearsay or incomplete. He sought access to grand jury records, which he thought would support his claim. After examining the material in camera, the judge denied the motion.

We do not dismiss an indictment valid on its face absent a showing that the government flagrantly manipulated, overreached, or deceived the jury. E.g., United States v. Stone, 633 F.2d 1272, 1274 (9th Cir.1979). Although we have criticized the use of hearsay testimony when more reliable evidence is available, United States v. Samango, 607 F.2d 877, 882 & n. 7 (9th Cir.1979), it is wholly adequate to support an indictment. United States v. Garner, 663 F.2d 834, 840 (9th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 1750, 72 L.Ed.2d 161 (1982).

Nor does incomplete evidence before the grand jury detract from the resulting indictment. Cf. United States v. Garner, 663 F.2d at 840 ("the mere possibility that an absent juror might not hear any evidence on one of the counts is not a sufficient basis for attacking the indictment"). We find no suggestion that the grand jury failed to exercise its independent judgment. See United States v. Cederquist, 641 F.2d 1347, 1353 (9th Cir.1981).

II. Convictions under 18 U.S.C. Sec. 844(i).

A. Use of an "Explosive"

Kaye and Danno were convicted on counts 10, 12, 14, 16, and 18, and Kaye alone on count 4, of violations of 18 U.S.C. Sec. 844(i), which proscribes the destruction of a building "by means of an explosive." They assert that the fires charged in the indictment did not involve the use of an "explosive," as we defined the term in United States v. Gere, 662 F.2d 1291 (9th Cir.1981), an opinion filed several months after this trial.

The government attempts to distinguish Gere, pointing out that it focused exclusively on the statute's definition of an "incendiary device." It contends that under other portions of the definition an air-fuel mixture created by spreading gasoline inside a building satisfies the intended meaning of "explosive." This interpretation proved attractive to the Eleventh Circuit in United States v. Hewitt, 663 F.2d 1381 (11th Cir.1981).

Were we considering this issue free from our prior decisions on Sec. 844, we would adopt the government's position and affirm the explosives convictions.

But we are bound by United States v. Cutler, 676 F.2d 1245, 1248 (9th Cir.1982), in which we rejected the broader interpretation of explosive now offered by the government. Consequently, we reverse the convictions on counts alleging violation of 18 U.S.C. Sec. 844(i). We shall not face this problem again. Congress has amended 18 U.S.C. Sec. 844 to include arson by fire (in addition to explosive) within its provisions. Anti-Arson Act of October 12, 1982, Pub.L. No. 97-298.

B. Multiple-Object Conspiracy Instruction

Count 1 charged a conspiracy. It recited three objects, two involving extortion and one involving arson under Sec. 844.

In United States v. Carman, 577 F.2d 556 (9th Cir.1978), we concluded that a multiple-object conspiracy indictment is legally sufficient to support a conviction, "so long as no substantive count conviction is overturned because the count failed to state a crime." 577 F.2d at 567 (emphasis in original). But if the judge instructs the jury that it need find only one of the multiple objects, and the reviewing court holds any of the supporting counts legally insufficient, the conspiracy count also fails. We explained:

The one-is-enough charge makes it impossible to know precisely what the jury considered. Not knowing, a reviewing court must overturn the conspiracy conviction.

Id. at 568. Accord United States v. Talkington, 589 F.2d 415, 417-18 (9th Cir.1978) (per curiam).

The judge's instruction here permitted the jury to convict by unanimously finding any one of the three objects. He expressly advised that the jury "need not find that the conspiracy existed to commit all three criminal activities." Because under this instruction the jury could have focused on a legally insufficient object of the conspiracy, we reverse the convictions of all defendants under count 1.

C. Effect on Extortion and RICO Counts

Our decision to reverse the convictions under Sec. 844 and the conspiracy conviction does not affect the remaining counts. Each fire formed the basis not only for an arson count, but also for a count of extortion by physical violence. Moreover, they were charged as predicate offenses under state law for the RICO count.

Only the testimony by two government experts about the nature of explosives and incendiary devices would have been inadmissible in the absence of the Sec. 844 counts. The testimony was scientific and technical in nature and quite brief. We fail to find that it pervaded the entire trial, emotionally inflamed the jury, or could not have been segregated by the jury. See United States v. Brown, 583 F.2d 659, 669 (3d Cir.1978), cert. denied, 440 U.S. 909, 99 S.Ct. 1217, 59 L.Ed.2d 456 (1979). It had no adverse effect on the other counts.

We reject Kaye's contention that reversing the conspiracy count precludes reliance on coconspirator hearsay evidence to support his convictions on the remaining counts. The judge heard sufficient evidence to establish a prima facie showing of the existence of a conspiracy and Kaye's slight connection to it. See United States v. Batimana, 623 F.2d 1366, 1368 (9th Cir.), cert. denied, 449 U.S. 1038, 101 S.Ct. 617, 66 L.Ed.2d 500 (1980). With that, the coconspirator hearsay was admissible notwithstanding the eventual result on the conspiracy count. See United States v. Spawr Optical Research, Inc., 685 F.2d 1076, 1082 (9th Cir.1982) (different standards of proof).

III. The Trial Judge

Defendants sought a continuance. When the district court denied it they sought a writ of mandamus from this court. While that petition was pending, the case was transferred to Judge Real. Danno moved to disqualify Judge Real for bias and challenged the transfer, arguing that it violated local rules.

Even if the transfer failed to satisfy the literal terms of the local rule, see United States v. Radlick, 581 F.2d 225, 230 (9th Cir.1978), it met minimum due process demands. United States v. Torbert, 496 F.2d 154, 157 (9th Cir.), cert. denied, 419 U.S. 857, 95 S.Ct. 105, 42 L.Ed.2d 91 (1974). Because general orders and local rules not only implement due process and other statutory rights but also promote efficiency, we permit the district court broad discretion in determining their requirements. United States v. Simmons, 476 F.2d 33, 35 (9th Cir.1973).

Judge Gray heard argument on the bias motion. He considered affidavits in camera and refused to order Judge Real disqualified. Although he expressed "great concern" over Judge Real's conduct toward Danno's attorney, he refused to conclude that it justified granting the motion.

The motion focused primarily on Judge Real's improper conduct toward Danno's attorney in a prior case with a different defendant. Because Danno failed to show that Judge Real directed a bias toward him, rather than toward his attorney, he has not shown that Judge Gray abused his discretion. See United States v. Carignan, 600 F.2d 762, 763-64 (9th Cir.1979).

Kaye and Danno attack Judge Real's conduct throughout trial. They claim that his lack of impartiality and interference justify a new trial.

The transcript reveals that in the presence of the jury Judge Real raised his voice to defense counsel, refused to permit their approach to the bench, and criticized or admonished them. Notwithstanding our concern over such conduct, our close examination of the record does not convince us that defendants were denied due process by an unfair trial. See United States v. Poland, 659 F.2d 884, 892-94 (9th Cir.) (judicial misconduct claim rejected despite judge's "impatience and irritation" directed toward counsel and toward defendants during their testimony), cert. denied, 454 U.S. 1059, 102 S.Ct. 611, 70 L.Ed.2d 598 (1981).

The vast majority of the specific instances cited in defendants' briefs took place outside the presence of the jury. Others were provoked or, like the rebuffs of counsels' repeated and unnecessary requests to approach the bench, were proper exercises of the judge's authority to...