U.S. v. Reynolds
| Decision Date | 29 April 1993 |
| Docket Number | No. 92-50017,92-50017 |
| Citation | 992 F.2d 1220 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. R.G. REYNOLDS, aka: Richard Fernando Gonzales; aka: Richard Reynolds, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before SCHROEDER, THOMPSON and O'SCANNLAIN, Circuit Judges.
R.G. Reynolds was convicted of thirteen counts of mail fraud, in violation of 18 U.S.C. § 1341; and two counts of witness tampering, in violation of 18 U.S.C. § 1512(b)(2)(B). He contends his convictions should be reversed because the district court: (1) demonstrated bias depriving him of a fair trial; (2) erred in denying his motion to suppress evidence gathered pursuant to eleven search warrants; (3) erred in denying his motion to dismiss the indictment due to pre-indictment delay; (4) erred in denying his motion for acquittal on the mail fraud counts because the government failed to prove misrepresentation; (5) erred in refusing to sanction the government for the late disclosure of Brady and Jencks Act material; and (6) erred in refusing to give an entrapment instruction on the witness tampering charges. He also contends that the government knowingly used perjured testimony against him. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
Reynolds founded and operated an investment company known as R.G. Reynolds Enterprises. He held himself out as an investment advisor. He promoted his services by holding investment seminars in several states, direct telephone contact by his sales staff, television shows, a nightly radio show called "The Reynolds Rap" and a newsletter called "The Reynolds Report." He claimed to have earned prior clients returns of 48% per year.
Reynolds offered clients a number of investment programs. The one from which the mail fraud charges arose was called "Managed Accounts." He represented to clients who invested in this program that he would personally manage the funds deposited to obtain safe but rapid growth. He reported to them with periodic statements, usually showing exceptional earnings. There was evidence, however, that the statements were entirely fabricated and that Reynolds regularly converted the funds to pay personal or business expenses. There was also evidence that Reynolds regularly lied to clients about their earnings when they called about their accounts. Finally, there was evidence that Reynolds never set up accounts for his Managed Accounts clients, and that they lost much of their money.
Helen Money was one of Reynolds's victims. She also became friends with him and they may have had a sexual relationship. In August 1987 Money attended Reynolds's wedding where he gave her a telegram for "safekeeping." The telegram purported to be an acknowledgement of Reynolds's order to have funds wired from a Swiss bank account.
In October 1990, Money was subpoenaed to appear before a grand jury and ordered to produce any documents she had from Reynolds. There was evidence that before her scheduled October 30, 1990 appearance, Reynolds attempted to persuade Money not to turn over the telegram. Instead, however, Money cooperated with the government and taped many of her conversations with Reynolds. Some of these tapes reveal efforts by Reynolds to persuade Money not to turn over the telegram.
Reynolds first contends that Judge Real's bias denied him a fair trial. He points to several incidents from the record which he contends evidence this bias. In addition, he provides, without argument, extensive lists of citations to the record which he contends contain evidence of the judge's bias.
With regard to judicial bias, we have previously said:
A federal judge has broad discretion in supervising trials, and his or her behavior during trial justifies reversal only if [he or she] abuses that discretion. A trial judge is more than an umpire, and may participate in the examination of witnesses to clarify evidence, confine counsel to evidentiary rulings, ensure the orderly presentation of evidence, and prevent undue repetition. A judge's participation justifies a new trial only if the record shows actual bias or leaves an abiding impression that the jury perceived an appearance of advocacy or partiality.
United States v. Laurins, 857 F.2d 529, 537 (9th Cir.1988), cert. denied, 492 U.S. 906 (1989); see also United States v. Mares, 940 F.2d 455, 464 (9th Cir.1991); United States v. Mostella, 802 F.2d 358, 361 (9th Cir.1986).
We have reviewed each incident cited in the record. The record does not show actual bias, and we are not left with any impression of judicial advocacy or partiality. Accordingly, we reject Reynolds's judicial bias argument.
Reynolds next contends that none of the eleven search warrants was supported by probable cause. He further contends that three of the warrants were not sufficiently particular in describing what to seize.
We review for clear error a magistrate's decision to issue a search warrant. United States v. Bertrand, 926 F.2d 838, 841 (9th Cir.1991). We decide whether there was a "substantial basis" for a finding of probable cause. United States v. Brown, 951 F.2d 999, 1002 (9th Cir.1991); United States v. Rodriguez, 869 F.2d 479, 484 (9th Cir.1989). However, we review de novo contentions that a search warrant fails to particularly describe the items to be seized. United States v. Hurt, 795 F.2d 765, 772 (9th Cir.1986), cert. denied, 484 U.S. 816 (1987); United States v. McClintock, 748 F.2d 1278, 1282 (9th Cir.1984), cert. denied, 474 U.S. 822 (1985).
In determining probable cause, United States v. Peacock, 761 F.2d 1313, 1315 (9th Cir.) (emphasis in original) (citations omitted), cert. denied, 474 U.S. 847 (1985).
All eleven warrants were supported by affidavits relating information from confidential informants, SEC depositions, victim complaints, and postal investigations. These provided substantial evidence that Reynolds was engaged in fraudulent activity and that the locations to be searched might contain evidence of such activity.
Reynolds argues the affidavits relied on information from unreliable confidential informants. He does not explain why they were unreliable. Moreover, we look to the "totality of the circumstances" to determine whether there was a substantial basis for a finding of probable cause. Illinois v. Gates, 462 U.S. 213, 233 (1983). Here, the fact that there were several informants and that most of the relevant statements were corroborated by more than one informant suggests that the informants' testimony was reliable. In addition, the affidavits contained other information which justified finding probable cause. See id. This included information from the SEC investigation and complaints from victims.
Reynolds argues that even if the warrants were supported by probable cause, the three premises warrants did not describe with sufficient particularity the items to be seized. The description is the same in each of the three warrants. Each authorizes the seizure of "[m]aterials associated with the purported business and finances of R.G. Reynolds and his companies, and the investment opportunities offered or provided by R.G. Reynolds and/or his companies, including, but not limited to, the following...." The warrants list fifteen categories of business documents along with coins and gemstones and conclude with a catchall category of "[a]ny other evidence, fruits, or instrumentalities in violation of Title 18, United States Code, Section 1341, Mail Fraud; and Title 18, United States Code, Section 1343, Wire Fraud, and Title 15, United States Code, Sections 77q(a) and 77x, Securities Fraud."
While the warrants are broad, we have allowed a similarly broad warrant to stand in these circumstances. In a case very similar to this one, United States v. Offices Known as 50 State Dist., 708 F.2d 1371 (9th Cir.1983), cert. denied, 465 U.S. 1021 (1984), the warrant authorized the seizure of a wide variety of business records and materials along with "other evidence and instrumentalities for numerous on-going violations of Title 18, United States Code, Sections 1341 (Mail Fraud), 1342 (Fictitious Names) and 371 (Conspiracy)." Id. at 1372. We stated:
While the seizure was extraordinarily broad, and in that sense "general", under the particular facts of this case, the scope of the warrant was justified. It was not possible through more particular description to segregate those business records that would be evidence of fraud from those that would not, for the reason that there was probable cause to believe that fraud permeated the entire business operation of 50 State.
Id. at 1374. As in 50 State, the scope of the warrants here was necessary. The affidavits gave the magistrates reason to believe that Reynolds's businesses were "boiler room" operations, entirely devoted to fraudulent activity. As in 50 State, there was no way to separate out any potentially legitimate business documents or assets.
Nor are the warrants rendered invalid by the fact that they authorize seizure of items "including but not limited to" the categories listed. In United States v. Washington, 797 F.2d 1461 (9th Cir.1986), we approved this same language in a search warrant so long as the language was preceded by some appropriate...
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