U.S. v. Garner

• Decision Date: 14 September 1981
• Docket Number: Nos. 79-1805,80-1147,s. 79-1805
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rowena Owen GARNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 834

663 F.2d 834

UNITED STATES of America, Plaintiff-Appellee, v. Rowena Owen GARNER, Defendant-Appellant.

Nos. 79-1805, 80-1147.

United States Court of Appeals, Ninth Circuit.

Argued April 14, 1981.

Submitted April 24, 1981.

Decided Sept. 14, 1981. ^**

Rehearing and Rehearing En Banc Denied Nov. 16, 1981.

Burton Marks, Los Angeles, Cal., for defendant-appellant.

Edward R. J. Kane, Asst. U. S. Atty., Reno, Nev., for plaintiff-appellee.

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

Before WALLACE and SCHROEDER, Circuit Judges, and CRAIG, ^* District Judge.

WALLACE, Circuit Judge:

Rowena Garner (Rowena) appeals from a judgment of conviction by jury verdict on one count of wire fraud, 18 U.S.C. § 1343, and aiding and abetting wire fraud, 18 U.S.C. § 2, and one count each of interstate travel and transportation of money in furtherance of an unlawful activity, 18 U.S.C. §§ 1952 & 2314, and aiding and abetting the same. The following issues are raised in this appeal: (1) whether the trial court was without jurisdiction to proceed to trial after Rowena filed a pretrial notice of appeal; ¹ (2) whether the wire fraud conviction must be reversed because the government failed to prove a telephone call in furtherance of the scheme to defraud; (3) whether there was sufficient evidence to sustain Rowena's convictions for aiding and abetting wire fraud and interstate travel; (4) whether the failure of the district court to grant immunity to Roy Garner (Roy) deprived Rowena of due process; and (5) whether the district judge's denial of Rowena's motion to dismiss the indictment for grand jury irregularities and his refusal to order inspection of grand jury records was error. We affirm.

I

Rowena was involved with Roy, her husband, and with Dennis and Curry, in a scheme to cheat at blackjack at Harrah's Casino in Lake Tahoe, Nevada. The cheating took place on September 30, December 27, and December 28, 1974. The Garners and Dennis practiced playing blackjack at Dennis's home in Oxnard, California, and at the Garners' home in Reno. Prior to the September 30 session, they practiced for approximately one and one-half hours. Rowena dealt, while Dennis played the two middle hands and Roy played the third hand. During the practice, Roy would signal to Dennis. He would raise his card or stroke the side of his head to indicate to Dennis the appropriate play. They practiced again at the Garner home before Dennis's December sessions with the Garners.

Roy had also involved Curry, the casino manager at Harrah's. Roy would give Curry decks of marked cards to put into play at the tables where he was playing.

Roy played with Dennis at Harrah's on September 30 and December 28, 1974. Rowena did not play on either occasion. In November and December of 1974, Roy played at Harrah's with a person referred to as "Wilma Rogers." Dennis identified Rowena as Wilma Rogers, even though both Curry and the dealer who dealt blackjack to Wilma Rogers in November, 1974 were unable positively to identify Rowena as Wilma.

Rowena's conviction for wire fraud and interstate travel was based on alleged telephone conversations between Roy and Dennis in December of 1974, and upon Dennis's travel from California to Nevada to play blackjack.

II

The first issue that we must address in this appeal is whether the district court had jurisdiction to proceed with the trial of Rowena after her pretrial notice of appeal had been filed. Rowena filed a motion to dismiss the indictment for grand jury irregularities. The motion was denied and Rowena filed a timely notice of appeal on the day the trial commenced. ²

We have recently held that a pretrial order denying a motion to dismiss an indictment because of grand jury irregularities is not appealable. United States v. Garner, 632 F.2d 758, 766 (9th Cir. 1980), cert. denied, 450 U.S. 923, 101 S.Ct. 1373, 67 L.Ed.2d 351 (1981). At the time the district judge proceeded with the trial, however, it was unclear whether a pretrial appeal could be taken from such an order. The question is whether the district court has power to proceed until the appeal is acted upon by the court of appeals.

In Moroyoqui v. United States, 570 F.2d 862 (9th Cir. 1977), cert. denied, 435 U.S. 997, 98 S.Ct. 1651, 56 L.Ed.2d 86 (1978), the defendant "lodged" an appeal following a denial of his motion to dismiss on double jeopardy grounds. Apparently because of the pendency of Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the defendant decided that the appeal would be lodged, but that no attempt would be made to pursue it further at that time. During the appeal from his conviction, the Supreme Court held in Abney that an order denying a motion to dismiss on double jeopardy grounds was a final decision and therefore appealable under 28 U.S.C. § 1291. Based upon Abney, we set aside the defendant's conviction and held that: "when petitioner 'lodged' his appeal from the trial court's denial of his claim, jurisdiction was conferred upon the court of appeals. As a consequence the trial court was without power to proceed with the trial." Moroyoqui v. United States, supra, 570 F.2d at 864.

In another line of cases, however, we have held that the district court does retain some jurisdiction after a notice of appeal has been filed. In Ruby v. Secretary of United States Navy, 365 F.2d 385 (9th Cir. 1966) (en banc), cert. denied, 386 U.S. 1011, 87 S.Ct. 1358, 18 L.Ed.2d 442 (1967), we held that if a notice of appeal is invalid, the district court retains jurisdiction and may ignore it. In Ruby, a motion to dismiss a complaint was granted on June 17. A notice of appeal from the order was filed on July 14. The judgment dismissing the action was entered on August 3. No further notice of appeal was filed. We held that the premature notice of appeal did not deprive the trial court of jurisdiction to enter the judgment. Id. at 389. Although the notice was ineffective to affect the trial court's jurisdiction, it did become effective when the appealable judgment was finally entered. We stated that:

The only thing that is accomplished by a proper notice of appeal is to transfer jurisdiction of a case from a district court to a court of appeals. If, by reason of defects in form or execution, a notice of appeal does not transfer jurisdiction to the court of appeals, then such jurisdiction must remain in the district court; it cannot float in the air.

Where the deficiency in a notice of appeal, by reason of untimeliness, lack of essential recitals, or reference to a nonappealable order, is clear to the district court, it may disregard the purported notice of appeal and proceed with the case, knowing that it has not been deprived of jurisdiction. If the district court is in doubt as to whether the notice of appeal is inoperative by reason of some such defect, it may decline to act further until the purported appellee obtains dismissal of the appeal in the court of appeals. In the rare instance where the district court proceeds with a case under the mistaken belief that notice of appeal is inoperative, the appellant may apply to the court of appeals for a writ of prohibition.

Id. at 388-89 (emphasis added). We have followed the reasoning of Ruby in subsequent cases. United States v. Burt, 619 F.2d 831, 835-36 (9th Cir. 1980); Song Jook Suh v. Rosenberg, 437 F.2d 1098, 1101 (9th Cir. 1971).

We interpret Moroyoqui as consistent with Ruby by reading Moroyoqui as holding that once a petitioner has filed an appeal of an order that is appealable, such as the claim based upon double jeopardy in Moroyoqui, jurisdiction is conferred immediately upon the court of appeals. When there is a deficiency in the notice of appeal for whatever reason, however, the district court is not deprived of jurisdiction. Here there was such a deficiency because the order denying Rowena's motion to dismiss the indictment due to grand jury irregularities was nonappealable. United States v. Garner, supra, 632 F.2d at 766. Thus, the trial court maintained jurisdiction to proceed with the trial.

III

Rowena first challenges the sufficiency of the evidence. A jury verdict must be sustained on appeal if there is substantial evidence to support it. Hamling v. United States, 418 U.S. 87, 124, 94 S.Ct. 2887, 2911, 41 L.Ed.2d 590 (1974). We respect the exclusive province of the jury to determine the credibility of the witnesses and to resolve evidentiary conflicts. We must determine: "whether the evidence, considered most favorably to the government, was such as to permit a rational conclusion by the jury that the accused was guilty beyond a reasonable doubt." United States v. Ramos, 558 F.2d 545, 547 (9th Cir. 1977), quoting United States v. Nelson, 419 F.2d 1237, 1242 (9th Cir. 1969).

A.

Rowena argues that her wire fraud conviction must be reversed because the government failed to prove a telephone call in furtherance of the scheme to defraud as required by 18 U.S.C. § 1343. The government has the burden of proving the contents of the telephone conversation made in furtherance of the unlawful activity. Osborne v. United States, 371 F.2d 913, 927 (9th Cir.), cert. denied, 387 U.S. 946, 87 S.Ct. 2082, 18 L.Ed.2d 1335 (1967). However, circumstantial evidence is not inherently less probative than is direct evidence. United States v. Green, 554 F.2d 372, 375 (9th Cir. 1977).

The government attempted to meet its burden by producing records of numerous calls between the Garners' telephone and Dennis's telephone. In addition, Dennis testified that Roy called him in December and asked him if he received an invitation to play at Harrah's Club. When Dennis said he had, Roy replied, "We're going to play." That telephone call from the Garner telephone in Reno, Nevada, to Dennis in Oxnard, California, was shortly thereafter followed by Dennis's travel to Reno, where Dennis rehearsed the card cheating scheme with Rowena and her husband.

We find that...