U.S. v. Kostoff

• Decision Date: 21 April 1978
• Docket Number: Nos. 76-3496,s. 76-3496
• Citation: 585 F.2d 378
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Philip KOSTOFF, Paul Kostoff, Ronald Rossi, John R. Dubos, Kenneth L. Stevenson, Defendants-Appellants. to 76-3500.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 378

585 F.2d 378

UNITED STATES of America, Plaintiff-Appellee, v. Philip KOSTOFF, Paul Kostoff, Ronald Rossi, John R. Dubos Kenneth L. Stevenson, Defendants-Appellants.

Nos. 76-3496 to 76-3500.

United States Court of Appeals Ninth Circuit.

April 21, 1978.

Gerald Utti (argued), of Kurilich, Utti, Curran & Watson, Fullerton, Cal., Patricia Benson (argued), Mitchell, Sibesky & Knupp, Los Angeles, Cal., Robert E. Hinerfeld (argued), Los Angeles, Cal., for defendants-appellants.

J. Stephen Czuleger, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

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

Before BROWNING and ANDERSON, Circuit Judges, and NIELSEN, ^* District Judge.

PER CURIAM:

Defendants were charged, along with Sean Shanahan, ¹ with conspiracy to violate 18 U.S.C. § 1014, bank credit fraud, and 18 U.S.C. § 1341, mail fraud, in violation of 18 U.S.C. § 371. There were also six additional substantive counts charging violations of 18 U.S.C. § 1014 and 18 U.S.C. § 2, aiding and abetting. The jury found against all appellants on Count I, the conspiracy count; against Philip Kostoff on Counts II through VII; against Paul Kostoff on Counts II and III; against Stevenson on Count II; against Rossi on Count VI; and against Dubos on Count VII. All defendants appeal based on the jury instructions, contending that there was error resulting 1) from the lack of jury instructions as to mail fraud, and 2) from changing jury instructions after counsel's closing arguments. They also object to the failure to allow evidence or instructions as to materiality.

Other issues include whether or not there was sufficient evidence to support a single conspiracy theory; whether the admission of the death threat was prejudicial error; whether it was error to deny suppression motions; and whether certain overt acts should have been stricken from the indictment. Stevenson also contends that there was insufficient evidence to support his conviction on Count II.

We agree that the total lack of instructions on mail fraud and changing the instructions after closing argument makes the convictions on Count I fatally defective, and we therefore reverse and remand for a new trial as to that count only. We also agree with the claim that the evidence in Count II is insufficient as to Stevenson, and as to that defendant only, we reverse and remand for the entry of a dismissal. We disagree with the appellants as to the remaining issues and therefore affirm as to the remaining substantive counts.

The total lack of jury instructions on mail fraud is plain error. The indictment charged a two-pronged conspiracy, bank credit fraud and mail fraud. The indictment was given to the jury during its deliberations. In the opening statements of counsel and throughout final arguments both sides presented the mail fraud issue to the jury. Much of the evidence presented dealt exclusively with the mail fraud issue. The court never read the text of 18 U.S.C. § 1341 nor did it summarize the essential elements, so that the defendants could have been convicted of conspiracy to commit a crime that was never defined for the jury.

The judge also committed prejudicial error on Count I as to defendants Dubos and Philip Kostoff when he accepted defense counsel's jury instruction and changed it after counsel for Dubos and Philip Kostoff had given closing argument. The judge approved the proposed Kotteakos -based conspiracy instruction and never indicated that he would not submit it to the jury until after Dubos' closing argument, which had relied heavily upon Kotteakos -type "wagonwheel" analogies and other related examples and analogies that became meaningless in light of the new instruction. Therefore, in giving instructions that were materially different from those proposed, counsel was misled by the court to the defendants' prejudice.

In accord with the government's virtual concession at oral argument, we find the evidence insufficient to sustain Stevenson's conviction on Count II and order it reversed and dismissed.

Defendants also contend that while the indictment alleged only one conspiracy, the evidence at trial showed several different unconnected conspiracies. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). However, examining the law in...