U.S. v. Moore

• Decision Date: 10 August 1981
• Docket Number: No. 80-1105,80-1105
• Citation: 653 F.2d 384
• Parties: 8 Fed. R. Evid. Serv. 967 UNITED STATES of America, Plaintiff-Appellee, v. Alton Wayne MOORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 384

653 F.2d 384

8 Fed. R. Evid. Serv. 967

UNITED STATES of America, Plaintiff-Appellee, v. Alton Wayne MOORE, Defendant-Appellant.

No. 80-1105.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Jan. 7, 1981.

Decided Aug. 10, 1981.

Terry Amdur, Pasadena, Cal., for defendant-appellant.

Donald Etra, Asst. U. S. Atty., Los Angeles, Cal., argued, for plaintiff-appellee; Andrea Sheridan Ordin, U. S. Atty., Los Angeles, Cal., on brief.

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

Before GOODWIN and SNEED, Circuit Judges, and SOLOMON ^*, District Judge.

SNEED, Circuit Judge:

Appellant was convicted on three counts of soliciting money in exchange for his promise not to testify at the trial of another in violation of 18 U.S.C. § 201(e). With respect to two counts appellant was sentenced to six years in prison each, to run concurrently, and with respect to the third count appellant received a sentence of five years of probation to be served consecutive to the prison sentences. It is from these convictions that this appeal is taken. We affirm.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

While it may be true that to describe the facts of this case as "bizarre" is too extravagant, it is also true that to describe them as "unusual" is to employ an inappropriate understatement. Something between "odd" and "sensational" is perhaps about right. Our recital begins by noting that appellant in 1978 was serving a life sentence in prison in Belize (formerly British Honduras), Central America, for murder. In that year appellant met Harvey Dail, a fellow prisoner, who offered to help appellant escape from prison, to pay the expenses of his return to the United States and $20,000 in exchange for appellant's murder of Charles Hudson, a witness against one of Dail's business associates. Appellant accepted Dail's offer. Thereafter he did escape from the Belize prison and made his way to Guatemala City, Guatemala, where he presented himself to an agent of the Drug Enforcement Administration (DEA) of the United States and offered to become an informer against Dail, his former fellow prisoner and then present paymaster.

The DEA agreed to work with appellant and it was arranged that appellant would return to the United States and pretend to seek out and kill Hudson while gathering evidence against Dail. This arrangement was carried out to the point of recording numerous conversations with Dail, who also had returned to the United States, arranging for the surveillance of deliveries of weapons by Dail to appellant, and faking the murder of Hudson sufficiently convincingly to induce Dail to pay therefor and to seek to have appellant murder other troublesome individuals.

Shortly thereafter appellant appeared before a federal grand jury and approximately one month later he was arrested on a warrant for his extradition to Belize. Appellant was held for forty-five days and was released because the requisite extradition papers had not arrived prior to the expiration of this period. A few days later the scheme of the DEA and the appellant to obtain evidence against Dail encountered serious trouble. An associate of Dail's telephoned Hudson who, although he was supposed to be dead, answered the telephone. To protect appellant, Dail was arrested the next day in Las Vegas and charged with conspiracy to commit murder and interstate transportation of guns to commit a felony. ¹

At this point appellant's attention became directed toward those who might have an interest in Dail's avoidance of successful prosecution. Appellant, with the help of his wife, commenced a series of telephone calls to Dail's wife and later to one of Dail's associates in which he offered not to testify in Dail's trial in exchange for a sum of cash. These calls were recorded by both parties thereto. The DEA learned of the calls and quite understandably became concerned that the appellant would destroy their case against Dail. Upon being asked by the DEA about these calls appellant produced tapes of the calls and asserted that they were an attempt to incriminate additional members of Dail's organization, particularly the man against whom Hudson had been a witness. The DEA was not convinced and told appellant not to make any more calls to Dail's wife. Appellant agreed in writing to make no more calls.

Shortly thereafter he made additional calls and the DEA moved. Appellant was arrested, charged with violating 18 U.S.C. § 201(e), and arraigned on February 20, 1979. In due course the government offered appellant a plea bargain. If he would plead guilty to one count of violating 18 U.S.C. § 201(e), the government would request that Belize withdraw its extradition request, would not initiate extradition proceedings upon appellant's release so long as he violated no state or federal law, would recommend a sentence of five years, and would not prosecute appellant's wife for her At this point the government's effort to impose the sanction of extradition against its untrustworthy double agent encountered an obstacle. In the extradition proceedings the district court refused to order appellant's extradition. Confronted with this roadblock the government again arrested the appellant and obtained a second indictment against him on three counts of violating 18 U.S.C. § 201(e) and against him and his wife for conspiracy to violate 18 U.S.C. § 201(e). Following the trial, which occurred approximately ten and one half months after his arraignment on February 20, 1979, the jury acquitted both appellant and his wife on the conspiracy count and found appellant guilty on the three counts of violating 18 U.S.C. § 201(e).

participation in the telephone calls to Dail's wife and associate. To encourage his acceptance of the offer the government indicated that should he reject the offer the indictment would be dismissed and extradition proceedings would be instituted which, it believed, would be successful. Appellant did reject the offer and the government commenced extradition proceedings.

Appellant seeks to reverse his convictions on these grounds:

(1) The government's prosecution of him was vindictive.

(2) The delay in bringing him to trial violated his speedy trial rights.

(3) The admission of his conviction for murder in Belize was prejudicial and improper.

(4) The trial court's use of the Allen charge was improper.

(5) The consecutive sentences imposed with respect to Counts III and IV were improper because the calls covered by those counts were to the same person and part of a single transaction. We shall now address each of these grounds.

II. VINDICTIVE PROSECUTION

The heart of appellant's vindictive prosecution claim is his assertion that he was prosecuted because he exercised successfully his constitutional right to resist extradition. This, he asserts, brings his situation clearly within the teaching of Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and our decisions applying this teaching such as United States v. Groves, 571 F.2d 450 (9th Cir. 1978). In Groves we recognized that the "appearance of vindictiveness" was sufficient to bring Blackledge's teaching into play. The central issue presented by Blackledge was, in its own words, "whether the opportunities for vindictiveness in this situation are such as to impel the conclusion that due process of law requires a rule analogous to that of the Pearce case." 417 U.S. at 27, 94 S.Ct. at 2102. In Pearce the Supreme Court held that the punishment imposed upon one, whose retrial and conviction followed a successful pursuit of his statutory right of appeal of an earlier conviction, could not be greater than that which was imposed at the time of the first conviction, in the absence of certain specified findings on the record. As the appellant sees it, these cases preclude his prosecution for his violations of 18 U.S.C. § 201(e).

The government, on the other hand, contends that its prosecution of the appellant following the failure of its extradition efforts is simply the imposition of the remaining available alternative following the appellant's rejection of the plea offer. As put in the government's brief:

"This case can be summed up by stating that the government proposed a plea offer wherein the two matters pending against the Moores (the extradition and the § 201(e) charge) would be completely disposed of. The Moores rejected this offer, and the government proceeded with both actions." Appellee's brief, p. 12.

Cast in these terms the prosecution, which led to the convictions here being appealed, is not vindictive but rather is governed by Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), which sanctioned the carrying out by a prosecutor of "a threat made during plea negotiations to reindict the accused on more We would have no difficulty in accepting the government's analysis had the plea offer made to the appellant explicitly stated that, if the offer were rejected and extradition efforts failed, the appellant and his wife would be prosecuted in the manner that they were. In fact, no such explicit threat appears to have been made. The reason for its absence, however, is tolerably plain, viz., the government did not expect its extradition efforts to fail.

serious charges if he does not plead guilty to the offense with which he was originally charged." 434 U.S. at 358, 98 S.Ct. at 665. Much the same reasoning was employed by the Supreme Court in Corbitt v. New Jersey, 439 U.S. 212, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978).

To bring this case within the framework of Bordenkircher and Corbitt it is necessary to hold that the threat to prosecute the appellant and his wife in the manner employed by the government was reasonably implied under the circumstances surrounding the plea offer. This does not strike us as an unreasonable interpretation of the plea offer and we so hold. We cannot accept the proposition that the...