U.S. v. Wright

• Decision Date: 11 August 1987
• Docket Number: 84-1133 and 84-1134,Nos. 84-1088,s. 84-1088
• Citation: 826 F.2d 938
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jack Walder WRIGHT a/k/a Robert Morgan, John C. Heredia, and Joseph Wayne Haws, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 938

826 F.2d 938

UNITED STATES of America, Plaintiff-Appellee, v. Jack Walder WRIGHT a/k/a Robert Morgan, John C. Heredia, and Joseph Wayne Haws, Defendants-Appellants.

Nos. 84-1088, 84-1133 and 84-1134.

United States Court of Appeals, Tenth Circuit.

Aug. 11, 1987.

Brent W. Ward, U.S. Atty., Samuel Alba and Stewart C. Walz, Asst. U.S. Attys., Salt Lake City, Utah, for plaintiff-appellee.

John C. Green, Salt Lake City, Utah, for defendants-appellants Joseph Wayne Haws and John C. Heredia.

Mary C. Corporon, Salt Lake City, Utah, for defendant-appellant Robert Morgan.

Before BARRETT and SEYMOUR, Circuit Judges, and KANE, District Judge. ^*

KANE, District Judge. ^*

FACTS

Defendants Joseph Haws, John Heredia and Jack Walder Wright, a/k/a Robert Morgan [hereafter named Robert Morgan] raise eight allegations of error in their appeals from jury convictions on counts of conspiracy, two counts of interstate transportation of money obtained by fraud and one count of wire fraud. The focal point of the case was the activities of a corporation known as Fiscal Services, Inc. [FSI].

The most important aspect of the FSI business was an accounts payable program. Although modified from time to time, the essence of the program was to offer customers a means for paying their bills within a few days after receipt of a proper voucher for payment. In the interim, FSI would use the customers money to invest in such things as commodity futures. Certain customers were told that the funds obtained through the accounts payable program would be used to purchase bond shares so as to protect their monies. In some instances representations were made to the customers that their bills would be paid at a discount. FSI personnel also made representations to their customers that there would be an additional return on investment based upon a percentage split in the profits made by FSI.

The customers, or "clients" as FSI preferred to call them, would send money to FSI expecting FSI to send the money on to creditors in a timely fashion. Instead, FSI would transfer the money to a related entity, General Clearing House, which would buy tax free bonds. The bonds, in turn, were offered to other investors as collateral to put money into the program that would pay the "clients' " bills. While FSI had control of the money during the lag time, it would use it to invest in commodities markets wistfully hoping to earn a substantial return.

During 1979 and 1980 a number of customers placed in excess of $3,000,000 with The trial began on October 31, 1983 with these three defendants, Morgan, Haws and Heredia remaining for verdict. The trial continued through November 10, 1983 when the jury returned verdicts of guilty against all three defendants on all four counts.

FSI. With little or no break in continuity the payables program began to have difficulty and a number of accounts payable of the customers were not paid in timely manner. By mid-1981 the program and FSI collapsed.

PROCEDURAL RECORD

On May 11, 1983, the grand jury issued a four count indictment against four defendants, Robert Morgan, Joseph Wayne Haws, John C. Heredia and Sherman Davidson. Count I charged conspiracy in violation of Title 18, U.S.C. Sec. 371. Counts II and III charged interstate transportation of funds obtained by fraud in violation of Title 18, U.S.C. Secs. 2314 and 2. Count IV charged fraud by wire in contravention of Title 18, U.S.C. Sec. 1343. On September 28, 1983, a superseding indictment was filed. The superseding indictment, however, did not differ significantly from the original indictment.

The trial of all four defendants was originally set for June 27, 1983. On June 16, 1983, the government filed a Motion for a Continuance and Notice of No Objection. On July 12, 1983, the trial judge continued the trial to September 6, 1983. Following entry of the court's order continuing the first trial setting, the court appointed new defense counsel for defendant, Robert Morgan. On about August 11, 1983, a hearing was had on the motion of the defendants Morgan and Davidson for continuance of the trial. On August 22, 1983, the trial court continued the trial from September 6, 1983, to October 31, 1983.

At the hearing on August 11, 1983, the court set a discovery cut-off and motion cut-off date of August 31, 1983. On August 31, 1983, defendants Haws and Heredia filed motions to suppress direct and derivative evidence obtained in a search of premises located in Salt Lake City, Utah conducted on September 16, 1981 and any evidence obtained from an interview of the defendant Haws on May 5, 1983 at Provo, Utah. Defendants Haws and Heredia also filed motions for a bill of particulars, for a severance of trial from that of the co-defendants, Robert Morgan and Sherman Davidson on the grounds of antagonistic defenses, to identify, segregate and produce discoverable matter, for disclosure of impeaching information and for disclosure of exculpatory evidence. On August 30, 1983 Robert Morgan filed motions identical to those motions filed by Haws and Heredia and joined in the Haws and Heredia motions. (So, too, did Davidson.) In addition, Morgan filed a motion in limine to restrict introduction of evidence, motion in re: problems with discovery and motion for a preclusion order. On August 30, 1983, Haws, Heredia and Morgan moved for a continuance of the trial date of October 31, 1983.

On October 19, 1983, the motions to continue trial came on for hearing. The motion was denied. The government attorneys Alba and Walz, indicated that by October 19, 1983, or October 20, 1983, all Jencks Act material (18 U.S.C. Sec. 3500), all written material, all statements of witnesses interviewed by the government and intended to be called by the government and all exhibits in the evidence room of the United States Attorney's Office intended to be introduced at the trial of the case would be singled out for counsel and identified and made available for inspection, copying, interviews, etc. This additional material was to be made available by Friday, October 21, 1983, or Monday, October 24, 1983. In addition, government counsel indicated that responses to the motions of the various defendants, including motions for bills of particulars and motions for disclosure of discoverable evidence would be delivered to defense counsel and filed no later than October 20, 1983.

On October 27, 1983, Haws, Heredia and Morgan filed yet more motions to continue the trial date. On October 28, 1983, all motions filed were heard. The court denied the several motions for continuance denied the motions for severance, denied the motions for bills of particulars, denied the motions to suppress, denied the motion to dismiss the indictment, accepted a Stipulation of Counsel Re: the Motion in Limine of Defendant Morgan, and reserved ruling on the motion of Morgan for preclusion of evidence, including a diary of one Richard Taylor Cardall.

On October 25, 1983, the fourth defendant in this action, Davidson, entered into a plea bargain with the United States Attorney. This case against him was dismissed. Davidson later appeared as a government witness at the trial.

Defendants Haws, Heredia and Morgan raise eight points of error:

1. Denial of Motion for Continuance

After granting two motions for continuance of trial (motions of July 12, 1983 and August 11, 1983), the court denied a third motion made on October 19, 1983. The grounds for all of these motions were that defense counsel needed more time to prepare for a case this complex. The court denied the third motion because it felt that defense counsel had been given enough time and that the case, while complex, did not become less so just by waiting longer. Accordingly, trial began on October 31, 1983. Appellants complaint that, although the government had an "open file" policy previously in effect, they were not told what exhibits the government would be using until October 19, and this did not give them enough time. While we do not approve in any manner the cavalier way in which the government's attorneys treated discovery, our analysis does not stop at this threshold. Indeed, this entire appeal could have been avoided or significantly simplified had the government's attorneys cooperated with the court and appointed counsel by providing discovery in an organized manner at the earliest possible time.

It is clear that motions for continuance are addressed to the discretion of the trial court. Even if the defense is given a large amount of material to prepare in a short time, a showing of clear abuse of discretion resulting in manifest injustice is required before there can be reversal. United States v. Gonzales-Palma, 645 F.2d 844, 846-47 (10th Cir.1981). Here there is no showing that the ability of counsel to be effective was at all affected by the denial of the third motion for continuance. cf., United States v. King, 664 F.2d 1171 (10th Cir.1981). We have scrutinized the entire record with a view to determining whether there was prejudice to the defendants and whether the trial suggested unfairness. On the contrary, we find the defense was vigorous and informed.

2. Motion for Bill of Particulars

Defendants Haws and Heredia moved for a bill of particulars on August 31, 1983. The motion was denied at a hearing on October 28. Defendants insist the requested information was essential to allow them to put on a defense. The government replies that the information concerned evidentiary matters that need not be given out in advance of trial.

For more than ample reasons, the granting or denial of a motion for bill of particulars is left to the discretion of the trial court. United States v. Moore, 556 F.2d 479 (10th Cir.1977). Absent a showing of prejudice, the denial of a motion for bill of particulars is not error. United States v. Crim, 527 F.2d 289, 293 (10th Cir.1975), cert. denied, 425 U.S. 905, 96 S.Ct. 1497, 47 L.Ed.2d 755 (1976). This is so even where denial...