U.S. v. Ross, 95-50282

• Decision Date: 29 April 1997
• Docket Number: No. 95-50282,95-50282
• Parties: 97 Cal. Daily Op. Serv. 3109, 97 Daily Journal D.A.R. 5431 UNITED STATES of America, Plaintiff-Appellee, v. William ROSS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 422

112 F.3d 422

97 Cal. Daily Op. Serv. 3109, 97 Daily Journal

D.A.R. 5431

UNITED STATES of America, Plaintiff-Appellee, v. William ROSS, Defendant-Appellant.

No. 95-50282.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 4, 1997.

Decided April 29, 1997.

William J. Genego, Law Offices of William J. Genego, Santa Monica, CA, for defendant-appellant.

Patricia A. Donahue, Assistant United States Attorney, Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California, Dickran M. Tevrizian, District Judge, Presiding. D.C. No. CR 88-00563-DT.

Before BOOCHEVER, KOZINSKI and JOHN T. NOONAN, Jr., Circuit Judges.

BOOCHEVER, Circuit Judge:

Defendant William Ross was convicted of aiding and abetting the mailing of an explosive device with the intent to harm or kill, in violation of 18 U.S.C. §§ 2 and 1716(a). Ross filed a timely appeal. He contends that insufficient evidence supported his conviction, that preindictment delay violated his due process rights, and that the prosecution violated his Fifth Amendment rights by questioning him at trial about his retention of counsel and his post-Miranda silence. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court.

FACTS

In 1980, a box was mailed to Brenda Crouthamel (now Brenda Adams ("Adams")) at her place of work. The box contained a bomb that exploded and killed Adams's secretary In 1977, Adams filed a lawsuit against Ross, a real estate broker, and his brother Arthur Ross seeking to enforce an agreement to sell Adams a house. While Arthur owned the house, the government presented evidence that Ross was the real party in interest, that Arthur was merely a straw borrower, and that Ross alone would enjoy the profits or suffer the losses from the sale. Adams testified that settlement negotiations had been contentious and that Ross accused her of trying to cheat him and that he called her names. Adams wanted Ross to pay for approximately $5000 in repairs. Ross also stood to lose close to an additional $60,000 by going through with this agreement because the house was now worth much more than the amount for which he and Arthur had agreed to sell it to Adams. Adams and Ross last spoke on June 30, 1980, but reached no agreement.

Patricia Wilkerson. The box and its accompanying letter were analyzed and latent prints were discovered. What was originally thought to be a palm print was later discovered to be a thumb print belonging to Robert Manning ("Manning"). Prints on the letter matched those of Manning's wife, Rochelle Manning. Investigators suspected that William Ross ("Ross") had arranged for Manning to kill Adams because of a real estate deal that went sour. See United States v. Manning, 56 F.3d 1188 (9th Cir.1995).

That same day, two weeks before the bomb killed Wilkerson, a one-minute telephone call was placed from Ross's office to a number belonging to Manning at the Conference of Jewish Activists ("CJA"). Later that evening a two-minute call was placed from Ross's office to Manning's home. These were the only calls from Ross's office to either the CJA or Manning's home in 1980.

Ross and Manning were both members of the CJA, as well as of another Jewish organization. Manning was the defense minister of the second organization and an executive with the CJA. Marilyn Annis, also a member of the CJA, testified that she had seen Ross arrive at a meeting that Manning was conducting and that Manning asked Ross to stay until it was over. Others testified that they had seen Ross and Manning at the same fundraising parties and that Ross was a dependable contributor to both organizations.

Shortly after the bombing, Ross, who had changed his name from Rothstein in 1946, obtained a copy of his Rothstein birth certificate. In September 1981, Ross, disguised in a beard and glasses, used this birth certificate to apply for a driver's license in that name. In February 1983, again disguised, he used the license and birth certificate to apply for a passport.

Manning and his wife emigrated to Israel in 1981. In 1988, an investigator identified prints on the box containing the explosives as Manning's. After the identification of the prints, Manning and his wife were indicted and the government sought extradition. The extradition process continued for years. In the meantime, Ross was indicted in 1988 for aiding and abetting the offense, and his trial ended with a deadlocked jury and a mistrial in January 1989. The government dismissed the indictment without prejudice.

In July 1993, Manning was finally returned to Los Angeles. The day Manning arrived in the States, Ross moved to Vancouver, Canada, where he used the Rothstein alias, as well as those of "Charles Miller" and "Robert Levy". In November 1993, Ross was arrested in Vancouver. Detectives found among his belongings: an envelope addressed to Charles Miller containing U.S. passport applications, Canadian money orders issued to Robert Levy and William Rothstein, Mexican travel brochures addressed to Robert Levy, the Rothstein driver's license, Canadian citizenship information, documents explaining the extradition treaty between the United States and Canada, and a list of countries that appeared to be those with which the United States did not have extradition treaties.

The government obtained a superseding indictment, again charging Ross with aiding and abetting the offense, and Ross agreed to return to the United States for trial. In 1993, Manning was tried alone and found guilty. Ross was retried in 1994. He took the stand in his own defense, many witnesses testified to his good character, and again the

jury deadlocked. At his third trial in early 1995, Ross attempted to put on the same witnesses, but the trial judge sustained the government's objection to the character evidence. Ross again took the stand, and he insinuated that either his son, who had since died in a car accident, or his brother was responsible for the bombing rather than himself. At the conclusion of this third trial, Ross was found guilty and sentenced to life imprisonment.

ANALYSIS

I. Sufficiency of the Evidence

Ross first argues that insufficient evidence supported his conviction. There is sufficient evidence to support a conviction if, reviewing 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); United States v. Jones, 84 F.3d 1206, 1210 (9th Cir.) cert. denied, --- U.S. ----, 117 S.Ct. 405, 136 L.Ed.2d 319 (1996). Ross was charged with and convicted of aiding and abetting the mailing of an explosive device with the intent to injure or kill. To convict a defendant of aiding and abetting, the government must prove that the defendant knowingly committed an act with the purpose of aiding the commission of a crime that was later committed. See United States v. Ramos-Rascon, 8 F.3d 704, 710 (9th Cir.1993).

Ross contends that no rational jury could have found beyond a reasonable doubt that he committed an act in furtherance of the bombing, as required in order to be convicted as an aider and abettor. We disagree.

The prosecution presented the jury with evidence of Ross's motive to have Adams killed, as well as with reams of evidence regarding Ross's flight to Canada under assumed names. While, as Ross asserts, there may be explanations other than consciousness of guilt for Ross's flight, a jury could reasonably find that his extraordinary efforts to leave the country were undertaken to avoid detection because he had Manning mail a bomb to Adams. Moreover, there was testimony from Marilyn Annis and others of Ross's association with Manning. In addition, two phone calls were placed from Ross's business, one to the CJA office and one to Manning's residence. A jury could infer that Ross placed those calls to Manning, and Ross does not dispute the fact that Manning mailed the bomb that killed Wilkerson.

In sum, Ross had had associations with Manning; two telephone calls were placed from Ross's business to Manning's office and residence, and it was Manning who mailed a bomb to Adams's workplace; Manning had no known tie to either Adams or Wilkerson; Ross had a motive to kill Adams; Ross was among the few who knew Adams's temporary work address to which the bomb was mailed; and Ross evidenced a consciousness of guilt through his evasion tactics. With these facts, a rational trier of fact could have found beyond a reasonable doubt that Ross telephoned Manning and committed an act with the purpose of aiding the commission of the crime.

II. Preindictment Delay

Ross contends that the extended delay between the time of the bombing and his trials violated due process. He moved for the district court to dismiss the indictment based on this delay, but the court denied the motion. The trial court's decision on a defendant's motion to dismiss charges for preindictment delay is reviewed for abuse of discretion. United States v. Martinez, 77 F.3d 332, 335 (9th Cir.1996); Manning, 56 F.3d at 1193.

Preindictment delay that results from negligence or worse may violate due process. See United States v. Swacker, 628 F.2d 1250, 1254 n. 5 (9th Cir.1980) (some government culpability must be shown to prove a deprivation of due process). Whether due process has been violated is decided under a balancing test and "[i]f mere negligent conduct by the prosecutors is asserted, then obviously the delay and/or prejudice suffered by the defendant will have to be greater." United States v. Moran, 759 F.2d 777, 782 (9th Cir.1985) (as amended). The defendant must show actual prejudice from the delay, and the court must balance the After making the balancing determination, a pre-indictment delay will be permissible unless it violates fundamental conceptions of justice...