U.S. v. Lopez
| Decision Date | 30 October 1986 |
| Docket Number | Nos. 84-5068,84-5070 and 84-5071,s. 84-5068 |
| Parties | 21 Fed. R. Evid. Serv. 1201 UNITED STATES of America, Plaintiff-Appellee, v. Ernest LOPEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John VLAHOVICH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Paula NADIR, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Richard E. Drooyan, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.
John Nese, Joel Levine, Stilz, Boyd, Levine & Handzlik, Los Angeles, Cal., for defendant-appellant.
Appeal from the United States District Court for the Central District of California.
Before PREGERSON and POOLE, Circuit Judges, and SOLOMON, * District Judge.
These cases involve a series of robberies and extortions to benefit West Coast Metallics Industries (West Coast Metallics), a Los Angeles company that refines precious metals. The crimes were committed by Lopez and Vlahovich at the direction of Nadir, owner and president of West Coast Metallics. The jury found appellants guilty of conspiracy, 18 U.S.C. Sec. 371 (1982), obstruction of interstate commerce by robbery 18 U.S.C. Sec. 1951 (1982), collection of extensions of credit by extortionate means, 18 U.S.C. Sec. 894 (1982), and racketeering, 18 U.S.C. Sec. 1962 (1982). The court set aside Lopez's conviction of assaulting a postal carrier, 18 U.S.C. Sec. 2114 (1982), and granted him a judgment of acquittal on that count. Nadir was also found guilty of receipt of stolen mail, 18 U.S.C. Sec. 1708 (1982), and interstate transportation of stolen property, 18 U.S.C. Sec. 2314 (1982). Appellants challenge their convictions on a variety of grounds. We affirm.
In March 1982, Vlahovich was arrested in a van after stealing a cement truck and assaulting a security guard. Pursuant to a search warrant, police seized a mask, a wig, and a pair of rubber gloves found in the van. Appellants claim that the denial of their pre-trial motion to preclude admission of this evidence was reversible error because the wig and mask were not relevant to the crimes charged, and any probative value was outweighed by the danger of prejudice in drawing attention to Vlahovich's unrelated criminal activity.
A district court has broad discretion to determine whether evidence is relevant. United States v. Whitman, 771 F.2d 1348, 1351 (9th Cir.1985). Relevant evidence should be admitted only if its probative value is not substantially outweighed by the danger of unfair prejudice. Fed.R.Evid. 403. We review a district court's decision to admit evidence under Rule 403 for an abuse of discretion. See United States v. McKoy, 771 F.2d 1207, 1214 (9th Cir.1985).
The government's theory was that Vlahovich had a distinctive method of operation involving the use of disguises. Witnesses testified that the perpetrators of the Wilkinson and Wildberg robberies wore wigs and masks. Thus, the seized evidence was relevant to show Vlahovich's plan, preparation, and identity with respect to the crimes charged in the indictment. The district court excluded evidence that Vlahovich was engaged in criminal conduct at the time the evidence was seized, so there was no danger the jury would infer he was involved in unrelated crimes. Any prejudice from admission of the seized evidence was due to its probative value and was not unfair. See United States v. Bailleaux, 685 F.2d 1105, 1111 (9th Cir.1982). Therefore, the district court did not abuse its discretion in denying appellant's motion to exclude this evidence.
Appellants argue that they were prejudiced by the prosecutor's improper comments in closing argument regarding the wig and mask seized from Vlahovich. Appellants also claim that during closing argument the prosecutor vouched for Mandel's credibility and commented on appellants' failure to testify.
A prosecutor's improper closing argument is not grounds for reversal unless it rises to the level of plain error. United States v. Bagley, 772 F.2d 482, 495 (9th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1215, 89 L.Ed.2d 326 (1986); United States v. Falsia, 724 F.2d 1339, 1342 (9th Cir.1983). Moreover, where the defendant opens the door to an argument, it may be "fair advocacy" for the prosecution to enter. Falsia, 724 F.2d at 1342.
The prosecutor's comments regarding the wig and mask were made in response to defense counsel's argument that the criminal activity ceased in December 1980, after Mandel "retired" from West Coast Metallics. The prosecutor argued that the crimes did not stop and that the evidence seized from Vlahovich showed that he "was once again up to no good" in March 1982. While the question is not free of doubt, such rebuttal argument could reasonably constitute invited response to the defense's suggestion that Mandel, rather than appellants, actually committed the crimes charged. Given the government's theory that Vlahovich's method of operation included the use of disguises, it was a fair inference from seizure of the wig and mask that he was involved in criminal activity at that time. But even if the prosecutor's argument was improper, because the suggested criminal activity referred to was unrelated to the crimes charged in the indictment, it did not constitute plain error. Moreover, the district judge neutralized any potential prejudice by striking the prosecutor's statement and giving a cautionary instruction.
The prosecutor did not improperly vouch for Mandel's credibility, but merely responded to defense counsel's insinuation that the government did not believe its key witness. It would be improper for the prosecutor to suggest that Mandel's credibility should be satisfactory to the jury because it was satisfactory to the grand jury. However, even if the prosecutor did make such a suggestion, the judge gave curative instructions emphasizing that the fact that an indictment has been returned is not evidence, and reminding the jury of its exclusive role in determining credibility.
A prosecutor may call attention to the defendant's failure to present exculpatory evidence if those comments do not call attention to the defendant's failure to testify and are not of such a character that the jury would naturally and necessarily take them to be a comment on the failure to testify. Bagley, 772 F.2d at 494; United States v. Soulard, 730 F.2d 1292, 1306 (9th Cir.1984). Here the prosecutor did not directly comment on appellants' failure to testify. Rather, he referred to the lack of any evidence showing that appellants tried to disassociate themselves from Mandel, whose character they repeatedly attacked. The district court did not err in denying appellants' motion for a mistrial based upon these comments by the prosecutor.
Lopez challenges the sufficiency of the evidence by arguing that his convictions cannot be sustained because Mandel's testimony was uncorroborated. Mandel's testimony involving Lopez in the Wilkinson robbery was supported by eyewitness descriptions of the robbers and by Murphy's in-court identification. 1 Gutbezahl identified Lopez as one of his assailants in the Maraton extortion. However, only Mandel placed Lopez at the scene of the Wildberg robbery and implicated Lopez in the Parisienne extortion.
The uncorroborated testimony of an accomplice is enough to sustain a conviction unless the testimony is incredible or unsubstantial on its face. United States v. Whitten, 706 F.2d 1000, 1007 (9th Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1593, 80 L.Ed.2d 125 (1984); United States v. Escalante, 637 F.2d 1197, 1200 (9th Cir.), cert. denied, 449 U.S. 856, 101 S.Ct. 154, 66 L.Ed.2d 71 (1980). Lopez claims that Mandel's testimony was incredible because it was contradicted in certain respects and because Mandel was untrustworthy. However, Mandel's testimony was not incredible on its face; the jury could and did find it believable. Appellants presented extensive evidence impeaching Mandel. The jury was aware of the challenges to Mandel's credibility; nevertheless, it believed him. That was its proper prerogative. United States v. Clevenger, 733 F.2d 1356, 1359 (9th Cir.1984); Escalante, 637 F.2d at 1200. Viewing the evidence in the light most favorable to the government, Clevenger, 733 F.2d at 1358, there was sufficient evidence that Lopez committed the crimes of which he was convicted.
Lopez objects generally to Mandel's testimony concerning Nadir's declarations about planning the robberies, obtaining and disposing of the gold, and collecting money from creditors of West Coast Metallics.
Mandell was a coconspirator and his uncorroborated testimony was sufficient to establish the existence of the conspiracy. See United States v. Wolfson, 634 F.2d 1217, 1219 (9th Cir.1980). Mandel's testimony as to appellants' declarations at meetings in which they discussed the conspiracy, its objectives, and how it would proceed, did not violate the hearsay rule. Such testimony had dual aspects. The first was that it was not offered to prove the truth of the conspirators' statements, but was evidence of verbal acts which brought the conspiracy into existence. See id. The second aspect was indeed offered to prove the truth of matters asserted. Nonetheless, Nadir's statements are not hearsay, Fed.R.Evid. 801(d)(2)(E), because they were made during the course and in furtherance of the conspiracy, and were admissible against Lopez because he was a coconspirator. United States v. Brock, 667 F.2d 1311, 1315 (9th Cir.1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1271, 75 L.Ed.2d 493 (1983).
Lopez claims his right to confrontation was violated because he could not cross-examine Nadir...
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