U.S. v. Portac, Inc.

• Decision Date: 09 March 1989
• Docket Number: Nos. 87-3132,87-3178,s. 87-3132
• Citation: 869 F.2d 1288
• Parties: 1989-1 Trade Cases 68,480, 27 Fed. R. Evid. Serv. 743 UNITED STATES of America, Plaintiff-Appellee, v. PORTAC, INC., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Howard L. WOLF, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1288

869 F.2d 1288

1989-1 Trade Cases 68,480, 27 Fed. R. Evid. Serv. 743

UNITED STATES of America, Plaintiff-Appellee, v. PORTAC, INC., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Howard L. WOLF, Defendant-Appellant.

Nos. 87-3132, 87-3178.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 12, 1988.

Decided March 9, 1989.

Irwin H. Schwartz, Seattle, Wash., for defendant-appellant Portac, inc.

Nick Verwolf and Karen J. Vanderlaan, Helsell, Fetterman, Martin, Todd & Hokanson, Seattle, Wash., for defendant-appellant Wolf.

Marion L. Jetton, Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before POOLE, CANBY and LEAVY, Circuit Judges.

CANBY, Circuit Judge:

Portac, Inc., a sawmill company, and Howard Wolf, an employee of Portac, appeal criminal convictions stemming from a conspiracy to rig bidding on a government timber sale held on March 22, 1985. Portac was charged with aiding and abetting the formation of a conspiracy in unreasonable restraint of trade, in violation of Section 1 of the Sherman Act, 15 U.S.C. Sec. 1 (1982), and 18 U.S.C. Sec. 2 (1982). Howard Wolf was charged with making false material declarations under oath, before a grand jury investigating the rig bidding. 18 U.S.C. Sec. 1623 (1982). We affirm both convictions.

FACTS

On February 18, 1985, the U.S. Forest Service advertised that an estimated 8,100,000 board feet of timber in Soleduck Ranger District would be auctioned on March 22, 1985, by competitive bidding. The sale was known as the "Up and Adam" timber sale. Three companies, Hoh River Timber Inc., ("Hoh River"), Astoria Plywood Corp., ("Astoria"), and Seattle-Snohomish Inc., ("Sea-Sno") submitted sealed bids, and were the only companies represented at the sale. Hoh River and Sea-Sno bid the minimum acceptable amount ($515,728) established by the Forest Service. Astoria bid $20.50 above the minimum amount. Evidence was introduced which tended to show that Hoh River had originally been prepared to bid up to $791,000. Although oral bids were allowed after the opening of the sealed bids, none of the three companies made an oral bid. The sale accordingly went to Astoria.

On February 23, 1987, a federal grand jury indicted Astoria, Hoh River, Portac Inc. ("Portac") and Howard Wolf, Portac's timber manager. Astoria and Hoh River were charged with conspiracy in restraint of trade, in violation of Section 1 of the Sherman Act, 15 U.S.C. Sec. 1. The conspiracy was an agreement to refrain from bidding competitively against Astoria, which would then allocate logs from the sale among the conspirators and Portac. Astoria and Hoh River pleaded guilty to this conspiracy charge. ¹ Portac was charged with having "willfully aided, abetted, counseled, commanded, induced or procured" the formation of the conspiracy in violation of 18 U.S.C. Sec. 2. Wolf was charged with making false material declarations under oath before the grand jury, in violation of 18 U.S.C. Sec. 1623.

The government's prime witness at trial was Dean Hurn. As president and manager of Hoh River, Hurn was responsible for bidding on Forest Service timber. Hurn's testimony revealed that Hoh River was interested in bidding on the sale because of Hurn and Wolf also discussed the deal, by phone, on the morning of the sale. Hurn testified that, "I ... told [Wolf] that I was going to go see Norm Axon from Astoria Plywood ... I told Howard I was going to go down to the auction and we discussed, ... Astoria being there and Howard, the way that we left it was that I was to go to the timber sale and either bid the timber sale or try to make a, some type of a deal with Astoria on the timber sale." Wolf instructed Hurn to "see what Astoria had to say" about a deal and also informed him that Sea-Sno's buyer "wanted logs out [of] that timber sale."

                the timber's location and because "[i]t is very high grade wood."    The day before the sale, Hurn and Wolf spoke and discussed Portac's desires for timber from the sale.  Portac itself was not eligible to bid, because its parent company exports logs
                

On the morning of the sale, Norm Axon, (Astoria's timber manager), Neill Bowman, (Sea-Sno's timber manager), and Hurn met in the parking lot of the Soleduck Ranger Station. Bowman told Hurn "that ... he wanted logs out of that sale or was going to bid the timber sale." Hurn responded that Bowman "could get some logs out of that sale ... if we bought the sale." The three buyers then worked out the distribution of logs. Hurn's company would get the Hemlock and the other three companies (two bidders and Portac) would get the Douglas Fir. "[I]t was agreed that [Astoria would] buy the sale, [and] that [Hurn] wouldn't bid against them." When the sealed bids were opened, Hurn did not bid because he had agreed not to bid against his competitors.

After the auction Hurn called Wolf at Portac. Because Wolf was not available, Hurn spoke to Portac's president, Smokey Pittman, and "let him know what happened at the timber sale." The agreed division of logs from the Up and Adam Sale never came to pass. Approximately one year later, when Astoria's Norm Axon learned that a grand jury was investigating the sale, he announced that the agreement was off and Astoria would keep the logs.

Wolf testified at length before the grand jury, and he was ultimately charged with making 21 false declarations. He and Portac were tried together. Wolf was convicted of only two false statements, those being his answers to the last two of the following questions:

Q. Do you know whether or not Mr. Hurn had any contact with a representative of Astoria Plywood prior to the Up and At 'Em [sic] timber sale?

A. No.

Q. Do you have any reason to believe that he did?

A. No.

* * *

* * *

Q. Has anybody ever told you that a sale was rigged?

A. No.

After reaching a verdict separately against Wolf, the jury advised the court that it was unable to reach a verdict with regard to Portac and requested that the trial testimony of Dean Hurn be read to it. The judge read Hurn's testimony to the jury. Shortly thereafter a verdict of guilty was returned against Portac.

ISSUES

Portac and Wolf raise a number of issues, with some overlap. They may be stated as follows:

Portac:

(1) Does the charge of aiding and abetting the formation of a conspiracy state an offense?

(2) Was the evidence sufficient to convict?

(3) Were the aiding and abetting charges against Portac improperly joined with the perjury charges against Wolf?

(4) Were statements of the deceased Norm Axon improperly admitted through hearsay?

(5) Did the prosecutor engage in improper final argument amounting to plain error?

(6) Did the trial court err in reading Hurn's testimony to the jury at its request? Wolf:

(1) Did the indictment sufficiently allege perjury?

(2) Was the evidence sufficient to convict?

(3) Did the trial court err in admitting into evidence:

(a) testimony regarding statements of the deceased Norm Axon?

(b) guilty pleas of Astoria and Hoh River?

(c) telephone records of calls between the conspirators and Portac or Wolf?

(d) testimony regarding a statement made by Wolf?

(4) Did the trial court err in refusing to poll the jury until both verdicts were in?

DISCUSSION--PORTAC

Sufficiency of the Indictment

Portac concedes that it is a crime to aid and abet an existing conspiracy, see, e.g., United States v. Lane, 514 F.2d 22, 26-27 (9th Cir.1975), but contends that it is not a crime to aid and abet the formation of a conspiracy. This argument overlooks the nature of the aiding and abetting statute, 18 U.S.C. Sec. 2, which renders punishable as a principal anyone who "aids, abets, counsels, commands, induces or procures" the commission of an offense. One purpose of this provision is to make the former "accessory before the fact" a principal, and persons who aid in bringing about the later commission of a crime fall within its purview. See Robinson v. United States, 262 F.2d 645, 649-51 (9th Cir.1959) (quoting Morei v. United States, 127 F.2d 827, 830-32 (6th Cir.1942)); United States v. Barnett, 667 F.2d 835, 841 (9th Cir.1982). Thus "one can aid and abet a conspiracy by bringing the parties together to enter into an illicit agreement." United States v. Galiffa, 734 F.2d 306, 309 (7th Cir.1984). Portac's challenge to the indictment is therefore not well taken.

Sufficiency of the Evidence

With regard to our review of the sufficiency of the evidence, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Portac contends that this minimal standard is not met because there is no evidence that Wolf knew of the meeting in the parking lot just before the sale, or that he shared the criminal intent of the conspirators. But the mere fact that Wolf may not have anticipated exactly when and where the meeting would take place is not enough to upset the verdict. One can aid and abet a conspiracy without knowing all the particulars. United States v. Lane, 514 F.2d at 27. There was evidence that Wolf was in contact with Axon and Hurn before the meeting, that he urged them to agree on the terms of the sale, and that he told Hurn to try first to get an agreement and to bid competitively only as an alternative. There was also evidence of post-sale conduct and communications by Wolf that indicated continuing support and participation in the agreed arrangement. From this evidence, a rational jury could find beyond a reasonable doubt that Wolf had aided and abetted the conspirators in getting together to rig the bids, and that he intended that result.

Portac contends that the actions of Wolf are not attributable to Portac because Pittman, Wolf's...