Wagner v. United States

• Decision Date: 19 November 1969
• Docket Number: 22680-A and 22680-B.,No. 22680,22680
• Citation: 416 F.2d 558
• Parties: John C. WAGNER, Peter C. Unger, Robert L. Wagner, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

416 F.2d 558 (1969)

John C. WAGNER, Peter C. Unger, Robert L. Wagner, Appellants, v. UNITED STATES of America, Appellee.

Nos. 22680, 22680-A and 22680-B.

United States Court of Appeals Ninth Circuit.

September 11, 1969.

Rehearing Denied November 19, 1969.

Willard Jones, Sacramento, Cal. (argued) for John C. Wagner.

Joseph O'Connor, San Diego, Cal. (argued) for Unger.

Barry Freeman, Chicago, Ill. (argued) for Robert L. Wagner.

Arthur F. Mathews (argued) and Burton H. Finkelstein (argued), John N. Fegan, David J. Levenson, Attys., S. E. C., Washington, D. C., Sidney I. Lezak, U. S. Atty., Norman Sepenuk, Asst. U. S. Atty., Portland, Or., for appellee.

Before BARNES and KOELSCH, Circuit Judges, and HALL, District Judge^*

BARNES, Circuit Judge:

The indictment in the above case was returned December 7, 1966, charging a California corporation, an Oregon corporation, a Nevada corporation, and eight individuals in Count I with a conspiracy to violate what are sometimes referred to as the "private" fraud provisions of the statutes, viz., the Securities Act, 15 U.S. C. 77q(a), and the Mail Fraud Statute, 18 U.S.C. § 1341. Among the individuals were there separate appellants, John C. Wagner, Peter C. Unger and Robert L. Wagner,¹ whose appeals were consolidated for hearing.

The California corporation and the Oregon corporation appeared at arraignment and pleaded not guilty, but the case was dismissed as to them sometime during trial, as well as to the Nevada corporation and the individuals Shubin and Kosieris. The individual defendants Stewart, Christensen and Jongward entered nolo pleas so that verdicts on Count I were returned as to the only remaining defendants, appellants here, John Wagner, Peter Unger and Robert Wagner.

Counts II to XIII, inclusive, charged substantive offenses in violation of either the Securities Act or the Mail Fraud Statute. John Wagner, but not Unger or Robert Wagner, was named in each of them. Count XII of the indictment was dismissed prior to trial, and Counts IV and VII were dismissed at the conclusion of the Government's case.

Count XIV charged another conspiracy to violate those provisions of the law calculated to prevent fraud upon the Government or its instrumentalities, viz., Title 18, U.S.C. Sec. 1001, and Title 18, U.S.C. Sec. 2314. It thus was a different conspiracy than alleged in Count I, and named only six of the eight individual defendants named in Count I, and did not name any of the corporations. It did name John C. Wagner and Robert L. Wagner, but did not name Peter Unger. With the exception of John C. Wagner and Robert L. Wagner, all of the defendants named in Count XIV pleaded nolo during the trial, except defendant Kosieris who was dismissed.

Robert Wagner, charged only in Counts I and XIV, was acquitted as to Count XIV and convicted on Count I. John Wagner was convicted on Count XIV, as well as on Counts XV to XVII which charged substantive offenses either in violation of 18 U.S.C. § 1001 or 18 U.S.C. § 2314. He was also convicted on Counts I, II, III, V, VI, VIII, IX, X, XI and XIII.

Peter Unger was charged in, and found guilty, only as to Count I.

Appellant John Wagner raised thirteen points on his appeal. Appellant Robert Wagner raised five. Peter Unger raised ten points. Each of the appellants adopted all of the points raised by each of the other appellants. However, on argument, counsel for each of the appellants limited their argument to one point as to each of them and stated they did not abandon their other points. It is necessary to consider only a few of the many points raised.

It would serve no useful purpose to restate or summarize here the charges of the indictment. Twelve pages are devoted to a description of the conspiracy and scheme charged in Count I and sixty-four overt acts are alleged. Three pages and seventy-two overt acts describe the conspiracy and scheme charged in Count XIV.

Suffice it to say that the real estate activities of the defendants in a very short period of time range through Elsinore, California; Beverly Hills, California; Pismo Beach, California; Arroyo Grande, California; Santa Maria, California; Oceano, California; Roseville, California; Hawaii; Phoenix, Arizona; Portland, Oregon; Salt Lake City, Utah; Pueblo, Colorado; Ely, Nevada; Las Vegas, Nevada; Albuquerque, New Mexico, and El Paso, Texas. They involved approximately forty major complex real estate transactions, to say nothing of the numerous transactions between one defendant or another and their respective wives, creating promissory notes and trust deeds many times the value of the property covered which were used in turn to purchase other property, and in padding financial statements, frequently putting a highly inflated value upon property.² The defendants sometimes claimed ownership to property which they did not own.

In examining the briefs and records in this case, there comes to mind the statement of Judge Hand in United States v. Cohen, 145 F.2d 82, 88 (2d Cir. 1944), where he stated:

"It is a strange conception of justice that, if one only tangles one\'s crimes enough, one gets an immunity because the result is beyond the powers of a jury to unravel."

I. No. 22,680-B — Appeal of Robert L. Wagner.

As noted, Robert Wagner was acquitted on Count XIV and convicted on Count I. His principal attack is that by letting the case go to the jury against him on both Count I and Count XIV (in both of which he was named), he became prejudiced because he asserts no one can know whether or not the jury among themselves bargained to acquit him on XIV if he were convicted on Count I. The principal basis of counsel's attack is, as he said in the argument, "you can't trust a jury." This requires us to determine whether or not the evidence was sufficient to compel the granting of a judgment of acquittal on either Count I or XIV at the conclusion of the evidence. An examination of the indictment and of the evidence compels the conclusions that there was sufficient evidence upon which the jury could have convicted Robert Wagner on Count XIV as well as Count I. If there is sufficient evidence in the record so that reasonable minds might differ as to the result, then the question becomes one of fact for the jury to resolve and not one of law to be determined by the court. Isaacs v. United States, 301 F.2d 706, at 726-727 (8th Cir. 1962), and cases there cited. Without reviewing the evidence in detail, it is sufficient to say from an examination of the whole record that there was sufficient evidence of Robert Wagner's participation in the conspiracy charged in both Count I and Count XIV that it would have been improper for the court to have granted the motion for a judgment of acquittal, and taken the case as to Robert Wagner on either count from the jury. We affirm.

II. No. 22,680-A — Appeal of Peter Unger.

Unger was found guilty of Count I, the conspiracy count. He was a real estate broker, investor and dealer, largely in California. He first dealt with John Wagner in the Elsinore property deal in Southern California in 1962, acting as his broker. He admittedly bought and sold properties between himself and John Wagner in some thirty to fifty transactions, primarily in the Elsinore, California area.

To understand what these "transactions" were, we quote in the margin from that portion of Count I which describes some of them (and which we deem an accurate description, as established by the evidence).³

While Unger did not use the fictitiously valued promissory notes as freely as other defendants may have, he admittedly (a) paid a small amount in Hawaii ($20.00) on one note he had given to John Wagner, (b) otherwise made no attempt to pay on the notes he had executed and delivered to John Wagner, (c) knowingly used some of the Wagner "inflated" notes to acquire property himself, and (d) realized a $45,000 second trust deed for the use of his name on paper connected with the "Harbor Lights" transaction.

Unger claims error based on alleged misjoinder, variance, newspaper publicity, lack of effective representation, insufficiency of the evidence,⁴ and more particularly, of the denial of his motion for a change of venue.

We find no merit in his various claims (including others not specifically referred to herein). We point out, with respect to his claim that there should have been a change of venue, that the transactions involved in Count I occurred in at least ten different federal court districts. Unger was directly or indirectly "in" on most of these deals. More occurred in Oregon than in any other district.⁵ Hence, Unger's claim to be tried "of right" in the Southern District of California at San Diego is without substance.

At no time has defendant Unger (nor has defendant John Wagner, for that matter) shown that the "substantial balance of convenience" in this case required a change of venue. It might well have been more convenient to one or more defendants to have had a change of venue to one or more other districts, but that reason is insufficient to require the trial judge to order a change of venue. Of the proposed Government witnesses (whose names were disclosed to defendants prior to trial) 99 were from Oregon. Of the 109 testifying, 37 were from Oregon, 19 from Southern California, 14 from Northern California, 17 from Hawaii, 7 from Nevada, 5 from Arizona, and 4 from other states. See Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 245, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964). The ultimate decision in such matters must largely rest in the sound judicial discretion of the trial judge. United States v. Luros, 243 F.Supp. 160 (N.D.Iowa 1965). That discretion was here exercised, and we think, was wisely exercised.

Defendant Unger's only other point that requires discussion is his claim that he did not receive a proper warning before making his pre-indictment statements to the F.B.I. We point out (1) that the defendant Unger was not in custody when he made the...