U.S. v. Seifert, Nos. 79-1405

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore DUNIWAY, ANDERSON and TANG; DUNIWAY
Citation648 F.2d 557
Docket NumberNos. 79-1405,79-1458
Decision Date19 December 1980
Parties7 Fed. R. Evid. Serv. 962 UNITED STATES of America, Plaintiff-Appellee, v. Walter SEIFERT and Jack Ehrlich, Defendants-Appellants.

Page 557

648 F.2d 557
7 Fed. R. Evid. Serv. 962
UNITED STATES of America, Plaintiff-Appellee,
v.
Walter SEIFERT and Jack Ehrlich, Defendants-Appellants.
Nos. 79-1405, 79-1458.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted April 15, 1980.
Decided Dec. 19, 1980.

Page 559

Richard H. Kirschner, Kirschner & Greenberg, Philip Deitch, Los Angeles, Cal., for defendants-appellants.

John G. Hawkins, Asst. U. S. Atty., Tucson, Ariz., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before DUNIWAY, ANDERSON and TANG, Circuit Judges.

DUNIWAY, Circuit Judge:

Walter Seifert and Jack Ehrlich appeal from judgments of conviction on 19 counts of interstate transportation of property taken by fraud in violation of the first paragraph of 18 U.S.C. § 2314 and one count of conspiracy to commit the same acts in violation of 18 U.S.C. § 371. We reverse the conviction of Seifert and affirm the conviction of Ehrlich.

I. The Facts.

Appellants do not argue that their convictions are not supported by the evidence. We therefore state the facts only briefly; additional facts will be stated as necessary.

The indictment charges that in the fall of 1977 Ehrlich, Seifert, and one Joseph Peres, as part of a scheme to defraud their suppliers, established a retail store in Phoenix, Arizona, known as Videoflex. Videoflex was to specialize in the sale of photographic and electronic merchandise. The defendants planned to operate the store in a legitimate manner for a few months for the sole purpose of establishing a credit rating sufficient to induce suppliers to sell large amounts of merchandise to Videoflex on credit. On the pretense of opening a second store, the defendants ordered large quantities of goods on credit. When the defendants received these goods, they shipped them out of state in rental trucks. The goods were sold elsewhere and the creditors of Videoflex were left holding the bag.

Peres, as part of a plea bargain, pled guilty to one count of the indictment and testified against Seifert and Ehrlich.

II. Murray Saka's Testimony.

Much of the present appeal concerns the testimony of one Murray Saka, an old friend of Peres and long time acquaintance of Ehrlich. What follows is an account of the testimony Saka gave on direct examination.

Saka moved from Brooklyn to Los Angeles in November, 1977 in large part to be closer to his friend Peres. He had been the proprietor of a camera and electronics store in New York, and he continued to sell camera and electronic equipment after moving, first at his own store and then at a store called New West Imports. In February, 1978 he received a phone call from Ehrlich offering to sell him two hundred movie projectors. They eventually agreed upon a $10,000 price, and Ehrlich told Saka that "his partner," Seifert, would be in Los Angeles shortly and would stop by Saka's store to pick up the $10,000 payment. Seifert did pick up the money and later delivered the projectors to Saka in a U-Haul truck.

Later in February, Saka received another call from Ehrlich, this time promising "a very good deal." Saka flew to Phoenix with $30,000 in his pocket "to buy the deal." In the Videoflex storeroom he examined the photographic merchandise offered to him for sale and agreed upon a price of $26,300. He paid the money over to Seifert and Ehrlich who counted it out together. Saka testified that he had borrowed a total amount of $75,000 from a friend although he had only taken $30,000 with him to Phoenix on this occasion.

Page 560

In March, Saka received a third phone call from Ehrlich offering more merchandise for sale. Saka "got very excited because of the money (he) had borrowed" and he drove to Phoenix to examine the merchandise. He and Ehrlich agreed upon a price of about $39,000 and Saka paid over the money in cash to Ehrlich and Seifert. Finally, on the following morning, Saka made his last purchase from Videoflex when he bought calculators from Ehrlich for $12,000. At that time, Saka "was deeply concerned about this money that was involved because (he) had to return it to whom (he) had borrowed it from."

On cross-examination, Saka was asked whether he had told the FBI that he had borrowed the money from a "loan shark" or from a "Shylock"; why he had borrowed $75,000 when the pending transaction with Videoflex only required $30,000; what rate of interest he was paying; whether he had dealt with this "loan shark" on previous occasions. Saka answered all of these questions. But when asked to give the name of his lender, he refused: "I'd rather not say for fear of my own life."

The court initially sustained an objection by the prosecution to this line of questioning as collateral, but permitted Seifert's counsel to make a written offer of proof as to the relevance of the question during the recess. In the offer of proof, Seifert's counsel explained that it was the defense theory that Saka and Peres were the actual partners in Videoflex-not Ehrlich and Seifert, and that the money to start Videoflex had come from Saka's own sources, including a store called Studioflex that Saka had owned in Brooklyn and closed before moving to Los Angeles, and not from a loan. Although he found the offer of proof "somewhat thin," the judge decided to allow the question to be put again to Saka, but not in the presence of the jury. Saka was recalled to the stand and declined to name the "loan shark" on the ground that his answer might incriminate him. The cross-examination before the jury then continued. Later in the proceedings the trial court twice denied appellants' motion to strike Saka's testimony because of his refusal to answer this one question on cross-examination.

Seifert and Ehrlich argue that the trial court committed five separate errors in its treatment of Saka's invocation of his Fifth Amendment privilege.

A. The Presence of the Jury.

First, Seifert and Ehrlich argue that the court erred in not requiring that Saka's assertion of his Fifth Amendment privilege be before the jury.

In deciding this question, we put aside cases rejecting a defendant's attempt to call a co-defendant to the stand for the purpose of having the co-defendant assert his privilege before the jury. E.g., United States v. Espinoza, 9 Cir., 1978, 578 F.2d 224, 228. A defendant has an absolute right not to take the stand.

On the other hand, a non-party witness cannot refuse to take the stand. His privilege arises only when he asserts it as to a question put to him, and it is for the court to say whether he is entitled to the privilege. United States v. Bautista, 9 Cir., 1975, 509 F.2d 675, 678 (dictum). See also J. Weinstein & M. Berger, 3 Weinstein's Evidence, P 611(04) at 611-49 (1978). We have held that a non-party witness cannot be called solely to have him claim his privilege before the jury. United States v. Licavoli, 9 Cir., 1979, 604 F.2d 613, 624; United States v. Espinoza, 9 Cir., 1978, 578 F.2d 224, 228 (dictum). But we have not decided the question here presented.

In United States v. Gay, 9 Cir., 1978, 567 F.2d 916, 920, we said in dictum that a non-party who testifies can be required to invoke the privilege before the jury. Judge Weinstein agrees, see Weinstein, supra, at p. 611-53. He cites no authority for this proposition, however, and we have found none.

We conclude that the judge should have allowed counsel to put the question to Saka before the jury. Doing so does not burden Saka's privilege. He is not on trial, and his invoking the privilege is not being

Page 561

used against him. If he were later indicted and tried, his invocation of the privilege could not be used against him. Nor would his invocation of the privilege be the sort of major event, to which the jury might give undue weight, that the complete refusal of a witness to testify might be. Here, Saka had answered every other question put to him. His refusal to answer the one question about the identity of the lender would be a form of impeachment. See United States v. Hearst, 9 Cir., 1977, 563 F.2d 1331, 1341-1342; Caminetti v. United States, 1917, 242 U.S. 470 at 493-495, 37 S.Ct. 192, 197, 61 L.Ed. 442; United States v. Brannon, 5 Cir., 1977, 546 F.2d 1242, 1247; United States v. Weber, 3 Cir., 1970, 437 F.2d 327, 334-335. These cases involved defendants who took the stand thereby waiving the privilege, but invoked it as to certain questions. The impeachment rationale, however, is applicable to this case.

However, we would not reverse on this ground in this case. The defendants had ample opportunity in the course of their lengthy cross-examination of Saka and in their examination of other witnesses to impeach Saka's testimony. Further impeachment by having Saka refuse to answer before the jury would have been merely cumulative.

B. Waiver of the Privilege.

Second, Seifert and Ehrlich...

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89 practice notes
  • State v. Cook, No. 16183
    • United States
    • Supreme Court of West Virginia
    • July 15, 1985
    ...may be cross-examined concerning such fact as long as the answers sought do not tend to further incriminate. See United States v. Seifert, 648 F.2d 557, 561 (9th Cir.1980). For example, Price could have been cross-examined concerning the appellant's activity while the truck was parked on th......
  • People v. Chin
    • United States
    • New York Court of Appeals
    • February 11, 1986
    ...distinction between matters which are "collateral" and those which are "direct" is not precise or easy to draw (United States v. Seifert, 648 F.2d 557, 561 [9th Cir.] ), and these terms are simply guidelines. In each case, "the ultimate question must be whether the defendant's inability to ......
  • U.S. v. Spillone, Nos. 86-5037
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 7, 1989
    ...warrant dismissal of the indictment. See, e.g., United States v. Gonzalez, 800 F.2d 895, 899 (9th Cir.1986); United States v. Seifert, 648 F.2d 557, 564 (9th Cir.1980). This evidence was not sufficiently material to justify holding that it substantially influenced the grand jury's decision ......
  • U.S. v. Noone, No. 89-1691
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • March 7, 1990
    ...Kimble, 719 F.2d 1253, 1257 (5th Cir.1983), cert. denied, 464 U.S. 1073, 104 S.Ct. 984, 79 L.Ed.2d 220 (1984); United States v. Seifert, 648 F.2d 557, 562 (9th Noone was not prejudiced by the district court ruling sustaining Sadusky's claim of privilege, since the ruling did not inhibit eff......
  • Request a trial to view additional results
89 cases
  • State v. Cook, No. 16183
    • United States
    • Supreme Court of West Virginia
    • July 15, 1985
    ...may be cross-examined concerning such fact as long as the answers sought do not tend to further incriminate. See United States v. Seifert, 648 F.2d 557, 561 (9th Cir.1980). For example, Price could have been cross-examined concerning the appellant's activity while the truck was parked on th......
  • People v. Chin
    • United States
    • New York Court of Appeals
    • February 11, 1986
    ...distinction between matters which are "collateral" and those which are "direct" is not precise or easy to draw (United States v. Seifert, 648 F.2d 557, 561 [9th Cir.] ), and these terms are simply guidelines. In each case, "the ultimate question must be whether the defendant's inability to ......
  • U.S. v. Spillone, Nos. 86-5037
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 7, 1989
    ...warrant dismissal of the indictment. See, e.g., United States v. Gonzalez, 800 F.2d 895, 899 (9th Cir.1986); United States v. Seifert, 648 F.2d 557, 564 (9th Cir.1980). This evidence was not sufficiently material to justify holding that it substantially influenced the grand jury's decision ......
  • U.S. v. Noone, No. 89-1691
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • March 7, 1990
    ...Kimble, 719 F.2d 1253, 1257 (5th Cir.1983), cert. denied, 464 U.S. 1073, 104 S.Ct. 984, 79 L.Ed.2d 220 (1984); United States v. Seifert, 648 F.2d 557, 562 (9th Noone was not prejudiced by the district court ruling sustaining Sadusky's claim of privilege, since the ruling did not inhibit eff......
  • Request a trial to view additional results

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