U.S. v. Glickman

• Decision Date: 14 September 1979
• Docket Number: 78-2498,78-1391 and 78-2900,Nos. 78-1087,s. 78-1087
• Citation: 604 F.2d 625
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harold GLICKMAN aka Hal Glickman, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James ROWE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 625

604 F.2d 625

UNITED STATES of America, Plaintiff-Appellee, v. Harold GLICKMAN aka Hal Glickman, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. James ROWE, Defendant-Appellant.

Nos. 78-1087, 78-2498, 78-1391 and 78-2900.

United States Court of Appeals Ninth Circuit.

Sept. 14, 1979.

Richard P. Crane, Jr., Girardi, Keese & Crane, Homer Mason (argued), Theodore S. Flier (argued), Los Angeles, Cal., for defendants-appellants.

Paul G. Flynn, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

Before TRASK and WALLACE, Circuit Judges, and HOFFMAN, ^* District Judge.

TRASK, Circuit Judge:

Harold Glickman and James Rowe appeal their convictions of one count each of conspiracy, in violation of 18 U.S.C. § 371, and of corruptly endeavoring to influence an officer of a court of the United States, in violation of 18 U.S.C. § 1503. The object of the conspiracy was to offer $50,000 to a federal district court judge to obtain favorable treatment in the sentencing or bail status of a defendant in a criminal prosecution then pending before the district court. They also appeal from the denial of their motions for a new trial based upon newly discovered evidence. We affirm.

The appellants raise the following issues on appeal: (1) whether appellant Glickman was denied his sixth amendment right to confrontation by the failure of informant Goldman to appear at trial; (2) whether it was proper to admit the testimony of an investigator stating that she had contacted the county coroner to determine whether Goldman was dead; (3) whether the evidence was sufficient to support Rowe's conviction; (4) whether the court properly instructed the jury on the law of conspiracy; (5) whether appellants had the right to an evidentiary hearing on the capacity of Goldman to consent to act as an informant; and (6) whether the record contains conclusive evidence of Goldman's incompetency to consent.

On February 23, 1977, Ron Goldman, an inmate at the Los Angeles County Jail, told Jerry Thomas of the Los Angeles Police Department that he would be willing to help obtain evidence implicating Glickman in a cocaine operation. For his cooperation, Goldman was promised a recommendation that he be released on his own recognizance.

Goldman told Thomas on March 24, 1977, that Glickman had informed him that he wanted Goldman to determine whether a United States district court judge would, in exchange for $75,000, grant probation to Phil Izsak, a defendant awaiting sentencing.

At a meeting on March 30, 1977, attended by Goldman, Thomas, Deputy District Attorney Robert Schirn, and two district attorney investigators, Diane Eagan and Ronald Maus, it was agreed that Goldman would contact Glickman and that Eagan would be used as a "contact" with the district court judge. No threats or promises were made to Goldman.

On April 4, 1977, Goldman called Glickman and made a tape recording of the conversation. Goldman said that the best way to get to the judge was through the judge's girlfriend. Glickman told Goldman to contact the girlfriend. When Goldman suggested that $10,000 might be necessary to pay the judge, Glickman stated that the money would be given. The transcript of this conversation was admitted at trial only against Glickman and the jury was so instructed.

At 11:00 a. m. on April 8, 1977, Goldman called Glickman and arranged for Glickman to meet later in the day with Eagan, who Goldman said was the girlfriend of the district court judge. At 4:00 p. m. Goldman and Eagan, equipped with transmitters, came to Glickman's office at the King's Arms Restaurant in North Hollywood and there met with Glickman and Rowe. Investigator Maus placed two receivers and two tape recorders in a Ford van and recorded the whole meeting.

The discussion at the meeting centered around how much money would be required to effectuate the bribe, who would provide the money, how the payoff would be made, concern over the number of people aware of the scheme, and, after Eagan left the meeting, concern that she was an undercover police investigator. Glickman stated that Izsak's parents would provide the money. It was agreed that the money would be paid to the judge through Eagan. Both Glickman and Rowe insisted that the only persons aware of the scheme were the four present at the meeting, and that neither Izsak nor his parents were told of the bribery. After Eagan left the meeting, Glickman and Rowe expressed concern that Eagan was an undercover agent and that they might be prosecuted for attempting to bribe a federal judge.

I

Before trial, Glickman moved to suppress the recordings of the telephone conversation between Glickman and Goldman on April 4, 1977, and of the meeting at Glickman's office on April 8, 1977, on the ground that Goldman did not voluntarily consent to the recordings. At the suppression hearing, the government introduced testimony of Officer Thomas, Deputy District Attorney Schirn, and Investigator Maus that Goldman had consented to the tape recording of his conversations with Glickman. Maus, at the hearing and at trial, and Eagan at trial, testified that, despite diligent efforts, they had been unable to locate Goldman. Glickman contends that the government's failure to procure the presence of Goldman, deprived him of his sixth amendment right to cross-examine Goldman regarding the veracity and authenticity of the tape recordings and his consent thereto. This argument is meritless.

This court in United States v. Hart, 546 F.2d 798, 799 (9th Cir. 1976), Cert. denied, 429 U.S. 1120, 97 S.Ct. 1155, 51 L.Ed.2d 571 (1977), held that the government is not a "guarantor" of the presence of an informant at trial. The government is required only to use reasonable efforts to produce the informant, upon a proper request by the defendant. Id. The trial court's findings that the government has met its burden to produce the informant should be sustained unless clearly erroneous. Id. at 801.

Here, the trial court was not clearly erroneous in finding that the government had used reasonable efforts to produce the informant. The government introduced testimony of three witnesses at the suppression hearing detailing the government's efforts to locate Goldman. In addition to conducting a number of interviews of acquaintances and relatives of Goldman, the government issued a warrant against Goldman charging unlawful flight to avoid prosecution by California authorities and entered Goldman's name in the National Crime Index Computer. We have examined the record of the suppression hearing and trial and hold that there was abundant evidence to support the trial court's finding that the government met its burden. ¹

II

Glickman contends that the testimony of Investigator Eagan linked him to a crime not charged in the indictment and constituted prejudicial error requiring reversal. The relevant testimony is as follows:

Q. Did you make any inquiries at any time with the County Coroner's Office?

A. Yes, I contacted them also on that 9th of May.

Q. What was your purpose in contacting the County Coroner's Office?

A. To ascertain whether Mr. Goldman was dead.

Glickman alleges that the "obvious inference" from Eagan's testimony is that he might have killed Goldman to prevent Goldman from testifying at trial.

Glickman's theory is unpersuasive. Under Hart, supra, the government had the burden of showing that it had made reasonable efforts to produce Goldman. Eagan's testimony regarding the coroner's office was introduced to show that the government had made reasonable efforts to locate Goldman. The government's attempt to show that it had discharged its burden included two pages of testimony by Investigator Maus and six pages of testimony by Eagan. The check of the coroner's office was merely a routine investigative procedure. Eagan did not even hint that Glickman or Rowe threatened or harmed Goldman. Moreover, because Eagan testified that Goldman's body was not found at the coroner's office, there was no evidence of a crime with which to connect the appellants.

Glickman further contends that the government made a second improper reference to his character during closing argument. There the government, referring to Eagan's presence at the meeting stated: "She was in a very dangerous position . . . ." Counsel for Glickman objected to this statement and the objection was sustained. Glickman alleges that the government's statement was an "obvious reference" that he was a dangerous person and constituted an attempt to convict him by establishing bad character.

The error, if any, was harmless. The trial court immediately sustained the objection to the prosecutor's statement and in its instructions to the jury admonished it that any evidence to which an objection was sustained by the court must be entirely disregarded and that statements and arguments of counsel are not evidence. See United States v. Cordova, 537 F.2d 1073, 1077 (9th Cir.), Cert. denied, 429 U.S. 960, 97 S.Ct. 385, 50 L.Ed.2d 327 (1976); United States v. Wycoff, 545 F.2d 679, 682 (9th Cir. 1976), Cert. denied, 429 U.S. 1105, 97 S.Ct. 1135, 51 L.Ed.2d 556 (1977). Furthermore, the evidence of Glickman's guilt was overwhelming. See Cordova, 537 F.2d at 1077; Wycoff, 545 F.2d at 682.

III

Rowe alleges that the evidence is insufficient to convict him. He urges that the only evidence adduced against him concerned his presence at the April 8th meeting and that he did very little talking at the meeting.

The evidence presented by the government as to Rowe's participation in the meeting was sufficient to convict Rowe. Eagan testified that Rowe was present at the meeting for all but a few minutes. Rowe's wife testified that she was in a position to observe anyone leaving Glickman's office and that Rowe left the office only once during the meeting to take a call that lasted four or five minutes. Rowe...