USA v. Sager

• Decision Date: 22 September 2000
• Docket Number: No. 99-50330,99-50330
• Citation: 227 F.3d 1138
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JULIUS PAUL SAGER, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1138

227 F.3d 1138 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JULIUS PAUL SAGER, Defendant-Appellant.

No. 99-50330

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted August 7, 2000

Filed September 22, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Judith Rochlin, Los Angeles, California, for the defendant-appellant.

R. Stephen Kramer, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California. Stephen V. Wilson, District Judge, Presiding. D.C. No. CR-98-00609-SVW-1

Before: John T. Noonan, Stephen S. Trott, and Marsha S. Berzon, Circuit Judges.

TROTT, Circuit Judge:

Julius Sager appeals his conviction and sentence imposed for theft of mail and possession of stolen mail in violation of 18 U.S.C. 1708. On appeal, Sager asserts numerous claims, including ineffective assistance of counsel, prosecutorial misconduct, erroneous admission of evidence under Federal Rule of Evidence 404(b), error in the court's instruction to the jury not to "grade" a postal investigator's investigation, error in imposing enhancements at sentencing for obstruction of justice and loss amount, error in imposing a $10,000 fine, and cumulative error. This court has jurisdiction pursuant to 28 U.S.C. 1291 and 18 U.S.C. 3742. We AFFIRM Sager's conviction, but VACATE his sentence and the fine, and REMAND for resentencing.

BACKGROUND

A complaint filed on June 2, 1998 charged Sager with theft of mail from an apartment on Pearce Street in Huntington Beach, California, on or about April 21, 1998, in violation of 18 U.S.C. 1708. A grand jury returned an indictment ten days later, including one count covering the offense charged in the complaint and a second count charging him with use of unauthorized access devices -in this case, credit cards -from January 1998 to May 1998, in violation of 18 U.S.C. 1029(a)(2). On November 10, 1998, the grand jury returned a first superseding indictment charging Sager with four counts: (1) theft of mail on a date unknown in January 1998, in violation of 18 U.S.C. 1708; (2) possession, on or about March 26, 1998, of a credit card in the name of Trevor Post that was stolen from the mail, in violation of 18 U.S.C. 1708; (3) possession of stolen mail on or about April 21, 1998, in violation of 18 U.S.C. 1708; and (4) use of an unauthorized access device from March 26, 1998 to around April 8, 1998, in violation of 18 U.S.C. 1029(a)(2).

Sager pled not guilty to this first superseding indictment and proceeded to trial. The day before trial, the court granted the government's motion in limine to admit evidence of Sager's prior mail fraud conviction under Federal Rule of Evidence 404(b). In 1996, Sager had pled guilty to completing credit card applications and change of address requests for other people without their consent or knowledge, directing the credit cards to be sent to locations to which he had access, and then using these credit cards to obtain goods, services and cash. The government offered this prior conviction for several purposes, including proving Sager's plan, intent, identity, knowledge, and for purposes of rebutting Sager's anticipated innocent explanation for his acts in this case.

At trial in the case at bar, Tanya Brown, the resident of the Pearce Street apartment, informed the jury that at some time in early 1998 she began receiving mail for credit card accounts belonging to Trevor Post, Allen Gormley, and John Yackle. The addresses for these accounts had been changed to Brown's address in late December 1997, without the various accountholders' authorization or knowledge.

Around the time Brown started receiving the credit card mail, both she and her neighbor, Christian Arce, began occasionally seeing a man, later identified by them as Sager, approach Brown's mailbox. Arce testified that she first saw Sager in late November 1997, and that she thereafter saw him at least two or three times per week. On each occasion, Arce saw Sager walk up to Brown's mailbox, take mail out, look through it, take some with him, and put the rest back into the mailbox. Arce testified that she never saw Sager with items in his hand as he approached Brown's mailbox, and never saw him deposit any items into the mailbox.

In January of 1998, Arce watched Sager exit a tan-colored Mazda minivan, approach Brown's mailbox wearing latex gloves, and remove mail from the mailbox. The minivan's rear license plate was covered up. On March 30, 1998, Arce again saw Sager look through Brown's mailbox, and on this occasion was able to view the minivan's license plate. Later investigation of DMV records revealed that the van was registered to Sager.

Brown testified that, on April 21, 1998, she saw Sager walk away from her mailbox and enter a tan-colored minivan. She recorded the same license plate number as had Arce. In her car, Brown followed the minivan as it drove off and parked on an adjacent street. Brown then witnessed Sager looking through mail in the driver's seat of the minivan.

Brown and Arce reported their observations to the authorities, and Brown provided some of the suspicious mail she had been receiving. Postal Inspector Barney Morris took charge of the investigation. Inspector Morris discovered that Trevor Post's credit card had been -without Post's authorization -reissued, mailed to the Pearce Street address, and used to make approximately $2,500 in purchases between March 16 and April 8, 1998. This use formed the basis for the second count of Sager's original indictment and the fourth count of the first superseding indictment.

One of the purchases involving Post's credit card occurred on March 26, 1998, at the Nordstrom store in Costa Mesa, California. Inspector Morris went to Nordstrom and interviewed Jeanette Kim, the clerk who had made the sale. At trial, Kim recalled their meeting, and testified that when Inspector Morris presented her with a photo display including a picture of Sager, she told Inspector Morris that Sager's "face looks familiar." On cross-examination, Sager's attorney asked Kim, "when you looked at that photo spread and you recognized Mr. Sager, did you recognize him as a possible customer?" Kim said "[y]es."

Inspector Morris testified twice before the grand jury and once at trial regarding his interview of Kim. His recollection of their discussion was inconsistent, to say the least. The first time he appeared before the grand jury, Inspector Morris testified that "Ms. Kim identified the photo of Julius P. Sager as the individual she believes made the purchase on that day, March 26, 1998, using the card belonging to Mr. Trevor Post." At the second grand jury, the following exchange occurred:

Q. What evidence do you have that the defendant actually possessed a Mastercard that was issued to Trevor Post?

A. The identification of him by Ms. Jeanette Kim from Nordstrom's. She is a clerk from Nordstrom's, and she was shown the photo spread on or about May 8 relating to the purchase, and she indicated she believed the individual in the photo spread was the photograph of Julius P. Sager.

Q. And she believed that that was the person who presented the first card, the Mastercard, of Trevor Post to her to make the purchase?

A. That is correct.

Inspector Morris's affidavit attached to the criminal complaint originally filed against Sager conveys a similar message.

At trial, Inspector Morris's testimony mirrored Kim's trial account. He testified that Kim "stated that [Sager] looked familiar" when she was presented with the photo display. Sager's counsel pounced on the discrepancy between this testimony and Inspector Morris's testimony at the grand jury hearings, asking him whether he had testified truthfully before the grand jury. Inspector Morris replied,

[Kim] didn't say those words exactly. In the context of presenting the photo spread, I was investigating the fraudulent charge, so what I was saying was that she identified Mr. Sager as someone familiar that could have done the transaction. I am trying to clarify to the grand jury what I was doing . . . . No, she did not say that.

Sager's counsel then reminded Inspector Morris that he had been given the opportunity at the second grand jury hearing to clarify or make corrections to his testimony in the first grand jury hearing. When asked whether he had taken advantage of that opportunity with regard to his testimony concerning his interview of Kim, Inspector Morris admitted that he had not.

Finally, when asked by Sager's counsel whether, at the second grand jury hearing, he had truthfully recounted Kim's statements, Inspector Morris responded as follows:

Again, what I am saying is that she identified Julius P. Sager, and in the context that I am talking about, I am talking about the transaction that was completed at Nordstrom's, so when I say she identified the photograph of Julius P. Sager as the individual that made the transaction, I am not saying she specifically said that Julius P. Sager is the one that made this transaction. That's not -that was not my intent. . . . That's what I said, yes, but that was not my intent, to mislead the grand jury.

The government appears to have known of the variance in Inspector Morris's account of his interview with Kim at least as early as a week prior to trial. In its motion in limine, the government wrote that "[t]he sales clerk who processed a purchase charged to the credit card on March 26 at Nordstroms has identified defendant as someone who looked familiar to her as a customer."

Continuing the cross-examination, Sager's counsel questioned Inspector Morris on various other aspects of his investigation. He asked Inspector Morris about his visits to the various stores at which Post's credit card had been used, including whether he had checked surveillance tapes at the stores, the location of the various surveillance...