Zamloch v. United States
| Decision Date | 07 February 1952 |
| Docket Number | No. 12753.,12753. |
| Citation | 193 F.2d 889 |
| Parties | ZAMLOCH v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Leo R. Friedman, San Francisco, Cal., for appellant.
Chauncey Tramutolo, U. S. Atty., Joseph Karesh, Asst. U. S. Atty., San Francisco, Cal., for appellee.
Before HEALY, ORR and POPE, Circuit Judges.
In April 1949 one Marie Basom was charged with having concealed and facilitated the concealment of a certain lot of heroin on April 15, 1949. After trial she was found guilty. Appellant Zamloch represented her as attorney at the trial.
Subsequent to the trial and conviction of Marie Basom, appellant, together with one Steffen and one Benevedes, was charged in the first count of an indictment of two counts, with the crime of conspiracy to defraud the United States of its lawful powers in the due administration of justice by procuring the said Marie Basom to testify falsely, by procuring her to refrain from further testifying, and conspiring to conceal and suppress from officers of the United States information that Steffen and Benevedes were principals, with Marie Basom, in the ownership, control and concealment of the narcotics for the concealment of which Marie Basom was previously convicted; and was charged with the same defendants, in the second count of the indictment, with having given Marie Basom money, and a promise and agreement therefor, upon an agreement and understanding that her testimony was in fact and should be influenced to the end that she, as a witness in her case, should not disclose or testify that Hugh Basom, Steffen and Benevedes were principals in her case. Steffen and Benevedes plead guilty. Marie Basom and Hugh Basom, while alleged to be members of the conspiracy, were not indicted.
Appellant's specification of errors relates, in most part, to the admission of evidence and instructions given the jury.
I. During the course of the trial the Court admitted in evidence a wire recording of a conversation held on April 25, 1950, between Hugh Basom and Albert Benevedes. Its introduction was objected to upon the ground that the proffered evidence was not the statements of alleged conspirators in furtherance of the conspiracy but was merely a narrative of past events.
The wire recording purports to detail a conversation between coconspirators Hugh Basom and Benevedes. It was taken pursuant to a plan agreed upon by Colonel George H. White, then District Supervisor of the Bureau of Narcotics, and Hugh Basom.
The purpose of arranging to get the wire recording, as stated by White, was "that the whole history of the case would be reviewed during the conversation from the lips of Benevedes" and as stated by Hugh Basom, its purpose "was to get Benevedes to give the full narrative of all that had taken place in the past." Appellant takes some comfort from these statements of purpose as sustaining his contention that the conversation is but a narrative of past events. The conversation must be judged on what was said and in it we find very definite statements of a determination to further the conspiracy.
Marie Basom, at her trial, testified that a man named Carl had given her the narcotics found in her possession. The facts were that she had received the narcotics from Hugh Basom who in turn had received them from Steffen with the aid and connivance of Benevedes. The conspiracy charged was the endeavor of appellant, Steffen, Benevedes, and Hugh Basom, to seal the lips of Marie Basom so that she would not disclose the participation of the main culprits, Steffen and Benevedes. Steffen had paid $4,500 for this purpose. The money was handled by Zamloch, who retained $500 as a commission. It was essential to the interests of the conspirators that Marie Basom remain silent at least until the statute of limitations ran. The reasons for preventing Marie Basom from talking were as strong and compelling at the time the conversation was had between Basom and Benevedes as it was the day it was entered into. In the course of the conversation Benevedes exhibited changing moods and attitudes in relation to the alleged threat conveyed to him by Hugh Basom of Marie Basom to talk. The plan agreed upon by the narcotics agents and Hugh Basom was for Basom to represent to Benevedes that a woman (fictitious) had conveyed a message from Marie Basom to Hugh Basom to the effect that she, Marie Basom, was threatening to go to the United States attorney and tell all. At first, Benevedes used braggadocio; next, he pictured the extremes to which Steffen would go to dispose of an informer, relating that one informer was no longer around and, in direct terms, he, Benevedes, threatened that if Marie Basom, by carrying information to the officers, caused him to be imprisoned he would kill the s.o.b. himself. Rather a forceful way and one, which he no doubt considered an effective way, to cause Marie Basom to continue to remain silent. True, some of the recorded conversation was concerned with past acts but it seems such a result was inevitable because the conspirators would necessarily discuss the conspiracy in stating terms which would most probably insure its effective continuance. While we entertain no doubt as to the correctness of the trial court's ruling in admitting the recording yet, if we be wrong in our conclusion, we cannot subscribe to the dire effects on the minds of the jury which appellant ascribes to it. Surely it is disgusting and revolting for a jury to be required to listen to language such as was used, but the jury doubtless formed, from observations they were in a position to make, an opinion of the character and depravity of the individuals concerned in the dope racket and that it, the jury, would not expect from them too much in the way of refinement of speech. Also, the jury would know from its observation, that Zamloch was incapable of the use of such disgusting language and to say they would be so inflamed by the language used by others as to be unable to fairly weigh the evidence as to him seems rather overdrawn. The admission in evidence of the wire recording was not error.
II. Complaint is made that the Court erred in instructing the jury as to the evidentiary value of the wire recording. The exception taken in the trial court followed the contention that the recording was confined to statements of past events. We have rejected that contention in our treatment of the question of the admissibility of the evidence. The admissibility was a question of law for the Court. It correctly ruled that the evidence was admissible. The jury was then permitted to consider it in connection with all the evidence in the case. That the conversation contained statements in furtherance of the conspiracy had been determined by the Court; that function was thus withdrawn from the jury: its task was to determine the weight and credibility. United States v. Nardone, 2 Cir., 127 F.2d 521; Wigmore, § 2550. Further, no request was made by appellant to have included in the instruction the matter now urged as essential and, under Rule 30 of the Rules of Criminal Procedure, 18 U.S.C.A. in order to have considered an assignment of error in the failure to give a specific instruction a request that it be given must first be made to the Court.
III. Appellant next assigns as error the admission into evidence of a certain mortgage from Paul and Ida Steffen to James Martin MacInnis.
The theory upon which the mortgage was admitted, insofar as we are able to determine from the remarks of the trial court, was that the mortgage was relevant to the extent that it shed some light upon the relations of Zamloch, as a member of a law firm, and its (the firm's) relations with their client Steffen. The evidence then before the trial court seems to have convinced it that Zamloch could reasonably be charged with knowledge of the execution of the mortgage. The size of the mortgage was evidence of how valuable the client Steffen was to the firm. Zamloch undoubtedly would be anxious that the firm secure a client able to pay such a large fee. Hence, with that thought in mind, he would have been all...
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