U.S. v. Tham

• Citation: 960 F.2d 1391
• Decision Date: 07 April 1992
• Docket Number: No. 90-10573,90-10573
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael Rudy THAM, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1391

960 F.2d 1391

UNITED STATES of America, Plaintiff-Appellee, v. Michael Rudy THAM, Defendant-Appellant.

No. 90-10573.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 17, 1991.

Decided Nov. 5, 1991.

As Amended April 7, 1992.

Doron Weinberg, Larson & Weinberg, San Francisco, Cal., for defendant-appellant.

Sara M. Lord, U.S. Dept. of Justice, Crim. Div., Washington, D.C., for plaintiff-appellee.

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

Before: CHOY, and SNEED, Circuit Judges, and KELLEHER, Senior District Judge. ^*

CHOY, Circuit Judge:

A federal jury convicted Michael R. Tham for attempting to corruptly influence United States District Judge Stanley A. Weigel. Also convicted were Tham's coconspirators: ex-crime figure Abraham Chalupowitz, alias "Trigger Abe" Chapman, and United States District Judge Robert P. Aguilar. ¹ Tham was found guilty Tham appeals his criminal conviction and sentence, alleging that the district court erred when it (1) denied his motion for a preliminary evidentiary hearing under Franks v. Delaware; (2) admitted into evidence incriminating telephone conversations which were intercepted without probable cause and which were the fruit of a prior illegal wiretap; (3) denied Tham's motion for a continuance of his trial date; (4) excluded certain testimonial and documentary evidence which would have helped to exculpate Tham; (5) issued jury instructions which failed to enumerate all the elements of conspiracy and which incorrectly defined the requirement of proving guilt beyond a "reasonable doubt"; and (6) incorrectly classified Tham's criminal convictions under 18 U.S.C. § 371 as two separate "pseudo-counts" of conspiracy under the United States Sentencing Guidelines.

under 18 U.S.C. § 1503 for the substantive offense of endeavoring to influence the due administration of justice, and under 18 U.S.C. § 371 for both conspiracy to defraud the United States and conspiracy to influence the due administration of justice.

We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

Since 1949, Tham had served as a union official in San Francisco for Local 856, an affiliate of the International Brotherhood of Teamsters. Tham was an active and well-known participant in numerous Teamster affairs and organizations. On the basis of the cooperation and testimony of former organized crime figure Aladena T. "Jimmy" Fratianno, former acting boss of the Los Angeles mafia, the FBI investigated Tham's activities. On May 21, 1980, a federal jury convicted Tham under 29 U.S.C. § 501(c) for embezzling union funds and making a false entry into union records. Judge Weigel fined Tham $50,000 and sentenced him to serve consecutive terms of six months in prison and four years on probation.

In July 1987, seeking to vacate his conviction and recover over $200,000 in backpay and attorney's fees, Tham filed a motion for habeas corpus under 28 U.S.C. § 2255 before Judge Weigel. In an effort to gather information about Judge Weigel's handling of the case and to gain favorable treatment from Judge Weigel, Tham called upon Abe Chapman and Edward Solomon to solicit the help, advice, and personal influence of Judge Aguilar. Abe Chapman, was distantly related to Judge Aguilar by marriage. Attorney Edward Solomon was a friend and former law-school classmate of Judge Aguilar. In return, for Judge Aguilar's assistance, Tham used his union connections to find a job for Lou Aguilar, the judge's brother.

Tham, Chapman, and Aguilar were indicted on June 13, 1989. The first trial began on February 5, 1990 and ended in a mistrial on March 19, 1990 with the jury deadlocked on counts against Tham and Aguilar. A retrial was scheduled for June 4, 1990. On April 16, 1990, Tham filed a pretrial motion to sever his case from that of his co-defendants. The Government joined in Tham's motion on May 1, 1990. The court granted the severance motion but denied Tham's motion to continue his trial date until after the trials of his co-defendants.

Tham was tried for the second time and, on June 20, 1991, found guilty. On June 26, 1990 Tham moved for a new trial, which the court denied on August 31, 1990. On November 14, 1990, Judge Bechtle entered a judgment of conviction, fined Tham $20,000, and sentenced him to eighteen months in prison to be followed by three years on probation.

ANALYSIS

I. Franks Hearing for Defective Wiretap Affidavit

To prove the existence of the conspiracy and to establish that there had been attempts to corruptly influence Judge Weigel the Government sought to present pen register and wiretap evidence that documented the conspirators' patterns of communication and revealed the contents of their telephone conversations.

Before trial, Tham moved to suppress evidence obtained from three wiretap authorizations of April 22, 1987, September 11, 1987, and October 21, 1987. After a non-evidentiary hearing on February 2, 1990, the district court ruled on February 5, 1990 to suppress evidence from the April wiretap while admitting evidence from the September and October wiretaps. ² Although Tham argued that the September and October wiretaps were the tainted fruits of the illegal April wiretap, the court ruled that the September and October wiretaps were supported by sufficient independent source evidence of probable cause and necessity.

Tham alleges that it was error to authorize the April and September wiretaps. In support of the wiretap applications, the Government submitted the April 20, 1987 and September 20, 1987 affidavits of FBI special agent Thomas Carlon. First, Tham argues that each affidavit, on its face, failed to establish probable cause for a wiretap under 18 U.S.C. § 2518(3). Second, Tham argues that each affidavit was defective under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and that the district court erred by not granting him a full Franks evidentiary hearing.

Applying practical common sense and examining the totality of the circumstances as the Supreme Court did in Illinois v. Gates, 462 U.S. 213, 230, 238, 103 S.Ct. 2317, 2328, 2332, 76 L.Ed.2d 527 (1983), we find that there was a substantial basis for concluding that probable cause for the wiretaps existed. United States v. Dozier, 844 F.2d 701, 706 (9th Cir.), cert. denied, 488 U.S. 927, 109 S.Ct. 312, 102 L.Ed.2d 331 (1988).

The April affidavit provided probable cause to believe that Tham was conspiring with others to procure bribes and kickbacks in return for Union approval of certain employee health benefit contracts. Also named in the affidavits were Angelo T. Commito, then President of Labor Health and Benefit Plan, Inc., real estate developer William Richard Baldwin, labor consultant Martin Bacow, Abe Chapman, Theresa Gene Vaughn, then President of American Digitron, Inc., and Bart J. Burg executive vice-president of American Digitron. The September affidavit contained evidence sufficient to furnish probable cause to believe that Tham was planning to participate in and profit from a fraudulent public offering involving Best Refrigerated Express and a kickback scheme involving the sale of wooden pallets. Both affidavits alleged facts sufficient to establish necessity.

Under Franks v. Delaware, 438 U.S. at 156, 98 S.Ct. at 2676, and United States v. Ippolito, 774 F.2d 1482, 1485 (9th Cir.1985), evidence seized pursuant to a search warrant or wiretap must be suppressed if the defendant can prove by a preponderance of the evidence that: (1) in the affidavit in support of the search warrant or wiretap, the affiant included a statement which he knew was false or whose veracity he recklessly disregarded, and (2) the false statement was necessary to the magistrate's finding of probable cause. We have since extended Franks to include deliberate or reckless omissions. United States v. Stanert, 762 F.2d 775, 781, amended, 769 F.2d 1410 (9th Cir.1985).

The ultimate question of whether a false statement or omission is necessary to a finding of probable cause, is a mixed question of law and fact which we review de novo. We review the district court's underlying factual determinations for clear error. United States v. Ippolito, 774 F.2d 1482, 1484 (9th Cir.1985).

In addition to arguing below that the April affidavit failed to establish probable cause and necessity, Tham also argued that two omissions rendered the April affidavit defective and necessitated a full Franks evidentiary hearing. First, the affidavit failed to mention a March 12, 1987 telephone conversation between Angelo Commito and Martin Bacow during which Commito stated that he didn't want to talk to Tham or involve him in any further discussions about an eye-care insurance kickback scheme. Second, according to Tham, the affidavit also failed to mention that, as of April 20, Tham and Commito had not spoken to each other for three months.

The first omission did not render the April affidavit defective or entitle Tham to a full Franks evidentiary hearing. Tham offered no proof that the omission was intentional or reckless. At worst the omission was negligent.

Nor did Tham prove that the second omission arose from intentional or reckless conduct. Even if the second omission was the product of bad faith conduct by law enforcement officials, addition of the omitted material would not have eliminated probable cause. Far from terminating the deal altogether, Commito merely expressed grumbling dissatisfaction on January 26, 1987 with the deal's prospects and on March 12, 1987 with Tham's handling of the deal. However, there was also evidence that Commito was still willing to pursue further negotiations. On February 12, 1987, Commito indicated that if Tham and officers of American Digitron "pursue this properly ... maybe something can happen." Furthermore, Tham continued his efforts to bring the scheme to fruition, making calls to American Digitron, Bacow, Baldwin, and Chapman as late as mid-April...