United States v. Gal
| Decision Date | 27 March 2015 |
| Docket Number | No. 14-30012,No. 13-30371,No. 13-30241,No. 14-30013,No. 13-30242,No. 13-30246,No. 13-30244,13-30241,13-30242,13-30244,13-30246,13-30371,14-30012,14-30013 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SUZETTE GULYAS GAL, Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANDRAS ZOLTAN GAL, Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, v. STEVEN WILLIAM CARPENTER, Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KRISZTIAN ZOLTAN GEORGE GAL, Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MIKE ALFONS CAMPA, Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MIKE ALFONS CAMPA, AKA Mike Heretel, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
NOT FOR PUBLICATION
MEMORANDUM*Appeal from the United States District Court for the District of Montana
Argued and Submitted February 2, 2015 Seattle, Washington
Before: BEA and MURGUIA, Circuit Judges, and KOBAYASHI, District Judge.**
I
Defendants/Appellants Suzette Gulyas Gal, Andras Zoltan Gal, Steven William Carpenter, Krisztian Zoltan George Gal, and Mike Alfons Campa appeal from their convictions and sentences in connection with a fraudulent investment scheme. Suzette and Campa also appeal from their convictions of criminal contempt.
Carpenter argues that the District of Montana was not a proper venue for the charges against him of mail and wire fraud under 18 U.S.C. §§ 1341 and 1343. Carpenter waived this argument when he failed to raise it until after the jury returned the verdict. See United States v. Marsh, 144 F.3d 1229, 1242 (9th Cir. 1988). Even on the merits, the argument fails. The proposed business agreement that U.S. Oil and Gas sent to the Fort Peck Agency of the Bureau of Indian Affairs ("BIA") in Montana, and which Carpenter later emailed to potential investors, was sufficient to make venue proper on the mail fraud count. Similarly, Carpenter's multiple telephone calls to the Fort Peck Agency were a sufficient connection to Montana to render venue proper on the wire fraud count. See United States v. Pace, 314 F.3d 344, 349-50 (9th Cir. 2002) (); United States v. Garlick, 240 F.3d 789, 792 (9th Cir. 2001) ().
Carpenter also argues that his trial counsel rendered ineffective assistance in failing to object on venue grounds. But Carpenter points to no evidence in the record that would permit this Court to determine whether counsel had a tactical
reason for declining to object, and any inadequacy in counsel's performance is not obvious. See United States v. Ross, 206 F.3d 896, 900 (9th Cir. 2000).
Suzette and Andras contend that the district court committed reversible error in failing to sever their trials from Carpenter's. The district court did not plainly err. See United States v. Hernandez-Orellana, 539 F.3d 994, 1001 (9th Cir. 2008); see also United States v. Sullivan, 522 F.3d 967, 981 (9th Cir. 2008). Rather than being antagonistic, the Gals' and Carpenter's defenses were nearly identical: each disclaimed any knowledge that the investment schemes were fraudulent and tried to pin everything on Campa. See Hernandez-Orellana, 539 F.3d at 1002. Nor did the evidence against Carpenter have an unfairly prejudicial "spillover" effect; the record indicates that the jury could "reasonably be expected to compartmentalize the evidence as it relate[d] to separate defendants." See United States v. Stinson, 647 F.3d 1196, 1205 (9th Cir. 2011); United States v. Cuozzo, 962 F.2d 945, 950 (9th Cir. 1992) (citation omitted) (internal quotation marks omitted); United States v. DeRosa, 670 F.2d 889, 898-99 (9th Cir. 1982).
Suzette, Andras, and Krisztian each argue that the evidence introduced at trial was insufficient to permit their convictions of the charges in the indictment.
Suzette and Campa also argue that insufficient evidence supported their convictions of criminal contempt.
Suzette argues that there was insufficient evidence that she intended to defraud the investors in the oil and gas scheme. But Suzette signed for the BIA's notices that the oil and gas leases were cancelled. Suzette's continued participation in the scheme despite having notice that the leases were not valid permitted the jury to infer that she intended to defraud the scheme's investors. See United States v. Peters, 962 F.2d 1410, 1414 (9th Cir. 1992).
Andras argues that the evidence was insufficient to show that he intended to defraud the investors in the oil and gas scheme. But Andras admitted to Krisztian that he knew that Campa obtained investments through fraud, and bank records from the account in which Andras permitted Campa to deposit the investment money showed that none of the funds were used for oil and gas drilling. Andras's continued participation despite these facts demonstrate an intent to defraud the oil and gas scheme's victims. See Peters, 962 F.2d at 1414.
Andras contends also that the evidence does not support his convictions of mail and wire fraud because he did not personally send a mailing or a wire transmission in furtherance of the oil and gas scheme. But Andras made at least
one call to a potential investor in furtherance of the scheme. Further, the record supports an inference that Andras acted as an aider and abettor. See Hernandez-Orellana, 539 F.3d at 1006-07.
Krisztian argues that the Government did not produce sufficient evidence to permit an inference that he agreed to participate in the oil and gas scheme charged in the indictment. We hold that the district court erred in failing to direct a judgment of acquittal on the conspiracy count against Krisztian. No evidence suggests that Krisztian knew of the oil and gas scheme charged in the indictment, much less that he knew that the scheme was fraudulent. At best, the evidence permits an inference that Krisztian knew of the fraudulent nature of the uncharged Arizona gold mine scheme. If Krisztian did not know of the oil and gas scheme's unlawful objective, he cannot be found to have agreed to participate in it. See United States v. Krasovich, 819 F.2d 253, 256 (9th Cir. 1987). We therefore reverse Krisztian's conviction of conspiracy under 18 U.S.C. § 371.1
Suzette argues that the district court's order excluding witnesses from the courtroom under Rule 615 was not sufficiently clear and definite to notify her that
she was not to discuss evidence presented at trial with witnesses yet to testify. Suzette's recorded telephone conversation with Campa established that Suzette knew that she was not to discuss evidence with him, permitting the district court to infer that its Rule 615 order was sufficiently "clear and definite." See United States v. Armstrong, 781 F.2d 700, 706 (9th Cir. 1986).
Campa argues that the evidence was insufficient to show that he knew of the district court's Rule 615 order. First, Campa waived this argument by dedicating only five lines to it in his brief, and by citing neither the record nor any cases in support. See Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1992). Second, the argument fails on the merits. Though Campa was not in the courtroom when the court issued the order, Tr. at 17, 21, United States v. Campa, No. 13-48 (D. Mont. Jan. 16, 2015), ECF No. 48, he admitted that his attorney advised him not to talk about the case with the other defendants. Moreover, Campa's silence when Suzette told him during the recorded telephone conversation that Campa may be disqualified from the case for discussing testimony with Suzette supports the conviction. If Campa were unaware of the district court's order, one might expect him to ask why discussing the case with Suzette would disqualify him and thereby deny him the opportunity to exonerate his family. The district court could reasonably infer from this evidence that Campa knew of the district court's Rule
615 order. See Armstrong, 781 F.2d at 706.
Suzette, Andras, and Carpenter argue that the district court abused its discretion in removing juror number one for cause. Andras also argues that the district court abused its discretion in preventing the defendants from asking certain questions of the venire. We review both assignments of error for abuse of discretion. See United States v. Beard, 161 F.3d 1190, 1193 (9th Cir. 1998); United States v. Jones, 722 F.2d 528, 529 (9th Cir. 1983).
Suzette, Andras, and Carpenter contend that the district court abused its discretion in removing juror number one and replacing her with an alternate for two reasons: (1) the district court failed to weigh all relevant factors; and (2) the juror's complaints were not sufficient to warrant removal for cause. Both contentions lack merit. The district court remarked that it based its decision to remove juror number one "on all factors considered." See Beard, 161 F.3d at 1194. Further, the juror's severe anxiety regarding her service—so severe, in fact, that it prevented her from sleeping—justified the district court's decision to remove the juror. See id. at 1193-94. In any event, even if the district court abused its discretion in replacing the juror with an alternate, the defendants have
not shown that they were prejudiced by that decision. See United States v. Alexander, 48 F.3d 1477, 1485 (9th Cir. 1995).
Andras argues that the district court abused its discretion in failing to ask the venire whether any juror had been the victim of financial fraud, and refusing to permit the...
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