577 F. 2d 690 - United States v. Walls

The appellant, Kenneth W. Walls, was convicted by a jury in the District Court of Arizona on two counts. The first count charged the appellant with devising a scheme or artifice to defraud Violet Bjerke, by causing a quitclaim deed executed by him to be sent through the United States Postal Service on or about January 24, 1972 from Calaveras County, California, to Arizona, in violation of 18 U.S.C. §§ 13411 and 2.2 The second count charged appellant with transporting from Alaska and Arizona $10,000 in interstate commerce on or about December 20, 1971, in violation of 18 U.S.C. §§ 23143 and 2. Appellant was sentenced to five years in prison and a $5,000 fine with the further order that "defendant stay committed until said fine be paid." (CT 156).

We have jurisdiction. 28 U.S.C. §§ 1291 and 1294(1). The district court had original jurisdiction. 18 U.S.C. § 3231.

Appellant raises twenty-one issues on appeal. We reduce them to the six suggested by the government and conclude that none of appellant's contentions warrant reversal.

We adopt a modified and enlarged form of the government's statement of facts, which is more precise and accurate than that offered by appellant.4

Appellant allegedly made false representations to obtain $20,000 from Mrs. Violet Bjerke. The misrepresentations concerned his claimed ownership and the mineral productivity of property in California which induced Mrs. Bjerke to loan appellant $20,000 on a short-term basis. The loan was never repaid. Federal jurisdiction was obtained when the quitclaim deed was filed in California and returned to Arizona by use of the mails, and when appellant cashed Mrs. Bjerke's Alaska State Bank check in Arizona.

In December of 1971, appellant approached Violet Bjerke in Scottsdale, Arizona, about investing in a gravel pit and gold mining operation appellant claimed to have underway in Calaveras County, California. (RT 45-46). Appellant had tried unsuccessfully to interest Mrs. Bjerke in his investments on several prior occasions. (RT 45).

Appellant claimed to be getting gold out of the gravel pit and showed Mrs. Bjerke nuggets he claimed were taken from the operation. (RT 57). Mrs. Bjerke agreed to invest $20,000 in appellant's venture. In return, appellant executed on December 20, 1971 a promissory note, promising to pay her $25,000 "no later than January 2, 1972." As purported security, appellant gave Mrs. Bjerke a quitclaim deed to the mineral rights in the gravel pit/gold mine. (RT 49-52).

Relying on appellant's statements, the promissory note and the security therefor, Mrs. Bjerke gave appellant two checks on December 20, 1971, one drawn on her Alaska bank account in the amount of $10,000 (RT 58; Gov. Exh. 3), and another $10,000 check drawn on an Arizona bank. (RT 59; Gov. Exh. 4).

The local check was cashed the same day; the Alaska check was endorsed and presented to the local bank the same day (apparently to be applied on Loan No. 42-11135), and was paid by the Alaska bank on December 27, 1971. By cashing the $10,000 check drawn on the Alaska State Bank, appellant caused the Alaska State Bank to withdraw $10,000 from Mrs. Bjerke's account. The Arizona Bank in Phoenix received the $10,000 from the Alaska State Bank through the Federal Reserve System. (RT 121-123).

Appellant represented to Mrs. Bjerke that he would use the money to develop the gold mine in Calaveras County. Mrs. Bjerke never received any money in return. Appellant left the Phoenix area in February, 1972. (RT 60).

After making the loan, Mrs. Bjerke became concerned over her investment with the appellant and ultimately had the quitclaim deed mailed to Calaveras County, California, for recording, but not until January 24, 1972. She received the deed back from the county recorder's office in the mail. (RT 52-53). Recorded instruments are mailed out by the county recorder in the ordinary course of business. (RT 80-81).

The parcel in question is between three and five acres and is part of a larger forty-acre parcel which apparently had a fair market value ranging from $18,760 (as of May, 1970) to $30,030 (as of November, 1973). (RT 104, 105). The Calaveras County Assessor has no information that the parcel in question has ever produced commercial quantities of gold. (RT 106).

No record of appellant's ownership of Lot 4, Block 1, Douglas Flat Townsite (the mineral rights of which appellant gave Mrs. Bjerke as security) exists in the official records of Calaveras County. (RT 90). At the time of appellant's representations to Mrs. Bjerke (December, 1971), record title was in the name of one Moheng. (RT 91). Title to the parcel after January 2, 1972 was in the name of Harley R. Walls and Margaret Petts Walls (appellant's parents), pursuant to a grant deed dated December 13, 1971 but not recorded until January 7, 1972. (RT 90). When the appellant gave Mrs. Bjerke the quitclaim deed, he had nothing to give. (RT 91, 95).

In sum, when appellant Kenneth W. Walls took the $20,000 in checks from Mrs. Bjerke on December 20, 1971, and issued his note to her for $25,000 payable in January 2, 1972, he had no title to the land, or the mineral rights which he purported to assign. Furthermore, we note that, on December 20, 1971, only Item 1 of the various deeds (see note 4, supra ) was recorded in Calaveras County, where the property was located.

At trial, the defense called Ted Purinton, who testified that he loaned appellant $20,000 in January, 1972, and was present, within sight, when appellant paid Mrs. Bjerke an unknown amount of money by counting the cash out to her on the hood of his car at 5:00 p. m. on the side of a road in Scottsdale, Arizona. (RT 168-169). This scenario was flatly denied by Mrs. Bjerke. (RT 258). Purinton stated that appellant had told him he needed the $20,000 to buy a rock plant. (RT 171).

Appellant's father, Harley Walls, testified for the defense that he purchased the property in Douglas Flat for $134,000 on September 1, 1971 from the previous owners. (RT 226). Walls further testified that he paid $3,000 down, the balance to be paid pursuant to an agreement of sale. (RT 227). Apparently, this 4.2 acre parcel contained a rock crusher plant and equipment. (RT 231).

For some reason, however, Harley Walls did not obtain the deed to this property until a subsequent transaction occurred between Walls and the previous owners in December, 1971. (RT 243). Walls testified that, at this latter transaction, he paid $40,000 for the forty-acre parcel of which Lot 4, Block 1, is a subparcel. (RT 242). He had two liens on the property. (RT 242). In his testimony, Harley Walls claimed to have worked the gravel pit on the forty-acre parcel prior to having it deeded to him on December 13, 1971. (RT 244). He also stated that the entire venture was abandoned in the latter part of 1972. (RT 244-245).

Harley Walls further testified that on September 23, 1971, he gave his son (the appellant) a general power of attorney and a quitclaim deed to the mineral rights to the property purchased from the Mohengs. (RT 232-233, 235, 238). However, no such quitclaim deed was produced (RT 237), and Harley Walls admitted that he never recorded either the quitclaim deed or the power of attorney. (RT 239). The power of attorney in evidence was neither witnessed nor acknowledged (Def. Exh. A), and of course, never recorded.

A. Was use of the mails and cashing of the Alaska check sufficient to bring appellant's transactions within either or both of the statutes charged in the indictment?

B. Was there sufficient evidence for the trier of fact to find appellant guilty?

C. Is an indictment signed only by an Assistant United States Attorney sufficient under Fed.R.Crim.P. 7?

D. Did the district court err in admitting evidence of other similar loan transactions by the appellant and failing to instruct the jury on the limited use to be made of such evidence?

E. Was it error for the district court to meet with a juror in chambers, in the presence of both counsel and with their consent, but in the absence of appellant? If so, was the error harmless?

F. Did the appellant receive effective assistance of counsel?

At the outset, appellant makes what is essentially a jurisdictional argument that use of the mails was insufficient in this case to give federal authorities jurisdiction to prosecute. As to Count I, appellant contends that neither Mrs. Bjerke's mailing the deed to California for recording nor the Calaveras County Recorder's mailing of the recorded quitclaim deed to Mrs. Bjerke (these being the only mailings upon which to base federal jurisdiction in this count) was for the purpose of executing a scheme to defraud as required by 18 U.S.C. § 1341. As to Count II, appellant claims there is no evidence that appellant transported or caused to be transported $10,000 from Alaska to Arizona and that, therefore, the jurisdictional requirement of interstate commerce in 18 U.S.C. § 2314 was not met.

B. SUFFICIENCY OF THE EVIDENCE AS TO COUNT II

Viewing the evidence, as we must, in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), it is clear that appellant misrepresented the validity of the quitclaim deed which Mrs. Bjerke relied on for security when agreeing to loan appellant $20,000, including the $10,000 drawn on the Alaska bank.6 It is unquestionable that appellant then deposited in an Arizona bank a $10,000 check drawn on an Alaska bank, thereby causing the Alaska bank to transfer funds to Arizona. Such a deposit, when taken by fraud, is within the prohibition of 18 U.S.C. § 2314 despite the fact that the mails may not have been used and the check cashing may not have been in furtherance of a scheme to defraud. United States v. Willis, 528 F.2d 381 (9th Cir. 1976); United States v. Gundersen, 518 F.2d 960 (9th Cir. 1975). Thus, the jury could reasonably have concluded that appellant both obtained $10,000 by fraud7 and then caused that amount to be transported in interstate commerce in violation of § 2314. The evidence was therefore sufficient to convict appellant on Count II. United States v. Coplen, 541 F.2d 211, 216 (9th Cir. 1976).

Appellant attacks the indictment on grounds that it was signed by an Assistant United States Attorney and not by the "attorney for the government" as required by Fed.R.Crim.P. 7(c)(1). We hold, however, that the signature of the United States Attorney himself was not essential and that the signature of an Assistant United States Attorney was sufficient to indicate the necessary agreement of the United States Attorney with the action taken by the grand jury. United States v. Wright, 365 F.2d 135, 137 (7th Cir. 1966), cert. denied, 386 U.S. 918, 87 S.Ct. 879, 17 L.Ed.2d 789 (1967); Abramson v. United States, 326 F.2d 565, 567 (5th Cir.), cert. denied, 377 U.S. 957, 84 S.Ct. 1636, 12 L.Ed.2d 500 (1964).

Evidence of other loan transactions in which appellant had defaulted was submitted by the government to rebut appellant's claim that he borrowed from Mrs. Bjerke in good faith.8 Under Fed.R.Evid. 404(b), evidence of other acts is admissible to show the knowledge and intent, and therefore, the lack of good faith, with which appellant acted. United States v. Moore, 522 F.2d 1068, 1079 (9th Cir. 1975), cert. denied, 423 U.S. 1049, 96 S.Ct. 775, 46 L.Ed.2d 637 (1976). Whether the danger of prejudice from admission of such evidence outweighs its probative value is committed to the trial court's sound discretion. United States v. Nichols, 534 F.2d 202, 204 (9th Cir. 1976). Under the circumstances, we cannot say that the trial judge abused his discretion in admitting the other transactions which, in our opinion, were sufficiently similar to the charged offense to be probative of a common plan, scheme, design, system, or course of conduct. See Parker v. United States, 400 F.2d 248, 251-252 (9th Cir.), cert. denied,393 U.S. 1097, 89 S.Ct. 892, 21 L.Ed.2d 789 (1968) (criteria for reviewing admission of similar transactions).

Furthermore, the failure of the trial court, on its own motion, to give a specific jury instruction on the use to be made of these similar transactions, when properly viewed in the light of the case as a whole (United States v. Park, 421 U.S. 658, 674-676, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975)), was not unduly prejudicial. Although it would have been preferable to give an instruction which carefully limited the jury's use of the similar transactions,9 (see, e. g., United States v. Brown, 562 F.2d 1144, 1148 (9th Cir. 1977); United States v. Moore, supra, 522 F.2d at 1079), we cannot say that failure to give such an instruction sua sponte was an abuse of discretion particularly where, as here, there was no request by defense counsel for the specific instruction. See United States v. Park, supra, 421 U.S. at 676, 95 S.Ct. 1903 (failure to request particular instruction considered as factor). See also United States v. McSweaney, 507 F.2d 298, 301 (9th Cir. 1974) (failure to give accomplice instruction sua sponte not reversible error). The jury instructions, taken together, focused the jury's attention on its duty to consider only the crimes charged in the indictment solely in the light of evidence tending to prove the necessary elements of those crimes. See United States v. Sambrano, 505 F.2d 284, 287 (9th Cir. 1974) (instructions, though not in precise language requested by counsel, sufficiently focused jury's attention on issue of identity); United States v. Fritts, 505 F.2d 168, 169 (9th Cir. 1974), cert. denied, 420 U.S. 992, 95 S.Ct. 1428, 43 L.Ed.2d 673 (1975) (failure to give cautionary accomplice instruction not reversible error); United States v. Campbell, 507 F.2d 955, 958 (9th Cir. 1974) (failure to give desired instruction was not plain error in light of fair and neutral statements made by trial judge and otherwise detailed and accurate instructions).

While the failure to give a limiting instruction is an important factor, it is not determinative. United States v. Brown, supra, 562 F.2d at 1148. Here the failure to give such an instruction was not reversible error. See United States v. James, 576 F.2d 223 at 226-227 (9th Cir. May 12, 1978), slip op'n at 1537; United States v. Brown, supra.

Appellant contends that his right to be present at all stages of the criminal proceeding was infringed when the trial judge held a conference, in chambers and on the record, with a juror and both counsel. (RT 315-318). At that conference, Juror D. K. Bruhn, who requested the meeting, complained that "we (presumably the jury) have been had" because "the (use of) the mails in this case are a strictly secondary point. He (the appellant) had no control over it." (RT 316). In response, the trial judge maintained strict neutrality.10 Juror Bruhn then suggested the possibility of declaring a mistrial to which the trial judge responded with similar neutrality.11 The judge then asked counsel if they wished to add anything else to the record of this conference. No objections were raised. (RT 318).

The general rule is that both the defendant and his counsel have the right to be present at all stages of the trial, from arraignment to verdict and discharge of the jury. Fed.R.Crim.P. 43; Rogers v. United States, 422 U.S. 35, 38-39, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975); Polizzi v. United States,550 F.2d 1133, 1137 (9th Cir. 1976). However,

the existence of a right to be present depends upon a conclusion that absence could, under some set of circumstances, be harmful. Due process does not assure "the privilege of presence when presence would be useless, or the benefit but a shadow." Snyder v. Massachusetts, 1934, 291 U.S. 97, 106-107, 54 S.CT. 330, 332, 78 L.Ed. 674 (Cardozo, J.)

Polizzi v. United States, supra, 550 F.2d at 1138. Thus, a failure to comply with the presence rule does not call for automatic reversal.

(E)ven improper exclusion of a defendant from a "critical" portion of the trial does not automatically require reversal, if in the particular case the defendant's absence was harmless beyond a reasonable doubt. (Citations omitted.)

Polizzi v. United States, supra, 550 F.2d at 1138.

In the instant case, the trial judge gave Juror Bruhn no information which could have influenced the guilty verdict ultimately returned by the jury. Indeed, the trial judge went so far as to assure Bruhn that if he believed in appellant's innocence, he could continue to vote his conscience because a mistrial due to a hung jury was not an uncommon occurrence. (RT 318). The conference was held in the presence of appellant's counsel and was placed on the record. No objection to the propriety of the conference was raised although appellant's counsel was given an explicit opportunity to do so. (RT 318). Under these circumstances, the absence of appellant from the in-chambers conference was not critical and, even if erroneous, was harmless beyond a reasonable doubt.

Appellant also charges that it was error for the trial judge to refuse defense counsel permission to ask the foreman of the jury if Juror Bruhn had made any comments to the jury about his conference in chambers. (RT 321). This was not error. Nothing said at that conference was prejudicial and defense counsel waived objection to Juror Bruhn's returning to the deliberations. Furthermore, permitting inquiry into whether the in-chambers conference was discussed by the jury could well have involved the jurors in an impermissible effort to impeach their own verdict.12 See, Fed.R.Evid. 606(b); United States v. Weiner, 578 F.2d 757 at 764 (9th Cir. 1978), slip op'n at 1584.

The standard for measuring effective assistance of counsel is a matter of some uncertainty in this Circuit pending the en banc decision in Cooper v. Fitzharris, 551 F.2d 1162 (9th Cir. 1977), petition for rehearing en banc granted July 5, 1977. At one end of the spectrum lies the traditional farce or mockery test. 551 F.2d at 1165. At the other end lies the standard adopted in Cooper of failure to render reasonably effective assistance. 551 F.2d 1166. We are convinced that, despite appellant's objections, defense counsel would be considered to have rendered effective assistance under any test which this Court may ultimately choose. For example, appellant argues that he is entitled to a judgment of acquittal because his counsel failed to object when the prosecution was permitted to introduce a photostat, rather than the original, of the quitclaim deed given to Mrs. Bjerke as security for her $20,000 loan to appellant. But, absent any genuine question as to the authenticity of the original, the photostat was properly admitted. Fed.R.Evid. 1003. Appellant also claims that defense counsel should have demonstrated to the jury that appellant had never been in Alaska and therefore could not have transported $10,000 from Alaska to Arizona. However, as previously discussed, depositing the Alaska check in an Arizona bank created sufficient interstate commerce to bring appellant's actions within the prohibition of 18 U.S.C. § 2314.

Appellant's other claims of attorney misfeasance are equally without merit. Appellant's Sixth Amendment rights were not violated.

We need not reach appellant's arguments regarding Count I. This Circuit follows the concurrent sentence doctrine of Benton v. Maryland, 395 U.S. 784, 791, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), under which a federal appellate court, as a matter of discretion, may decide that it is unnecessary to consider arguments advanced by an appellant with regard to his conviction under one count of an indictment if he was validly convicted under another count and concurrent sentences were imposed. United States v. Moore, 452 F.2d 576, 577 (9th Cir. 1971). Whether this Court decides that consideration of certain arguments is unnecessary under the concurrent sentence doctrine depends upon the determination, in the exercise of the Court's discretion, that the convictions which would not be examined will not entail adverse collateral legal consequences for the appellant. Id.

Appellant was sentenced to five years on each of two counts, the sentences to run concurrently. (CT 156). A $5,000 fine was imposed only as to Count II. Appellant has not suggested, and we do not perceive any collateral legal consequences adverse to appellant, over and above those flowing from his conviction on Count II, will result if the conviction on Count II is allowed to stand without appellate review. We accordingly decline, in the exercise of our discretion, to consider appellant's arguments insofar as they are directed solely to Count I of the indictment.

The judgment as to Count II is affirmed. In the exercise of our discretion, we decline to consider appellant's arguments directed solely to the conviction under Count I. The Clerk will issue the mandate forthwith. Enlargement on bail is revoked now if appellant is still on bail. No petition for rehearing will be entertained. See Fed.R.App. p. 2.