United States v. Jon Darrell Stauffer

During traveled to Hawaii to find Kevin. THOMPSON, Before FARRIS and their unannounced visit to Heinold’s moth- MUECKE, Judges, Circuit District house, they er’s Stauffer’s brother said Judge.** son; they just were not there to hurt her talk missing wanted to to him about the MUECKE, Judge: District comment, money. Despite this Mrs. Hei- appeals Jon Darrell Stauffer his convic- impression nold had the that the Stauffers conspiracy tion for drugs, to distribute in- had bad A days intentions. few later transporation terstate in aid aof racketeer- Stauffer’s brother returnеd and made ing enterprise, and collection of extensions threatening remarks to Mrs. Heinold about of credit extortionate means. We af- happen what would to her and her son if firm. money. Kevin did not return the Hawaii, leaving After attempted Stauffer AND FACTUAL PROCEDURAL to collect another debt in Nevada from a BACKGROUND different individual. undertaking This led charge Defendant/Appellant, extortion contained in Jon Darrell Stauf- Count fer, prosecuted approximately Six. Wallstrum hаd loaned peripheral partici- as a $5,000-10,000 proceeds pant drug ring in to An- headed Richard thony initially Fiori. Fiori was Stuart Wallstrum. to invest Government money with charged Charles Leonard in a Stauffer with four counts of an sports gambling eight City. bar in Carson count indictment. Some- Count One with, later, however, time charged conspiracy possess Fiori decided to back intent distribute, out of the investment and he and distribution of asked for the cocaine. (“the money appаrently gave back. Fiori U.S.C. Leon- distribution § count”). pay. ard some time to Leonard made three charged conspiracy Count Two payments, stopped installment but then to use extortionate means to collect an paying. arranged Wallstrum and extension of credit from an in Fiori individual (“the try get have Stauffer the rest of the Hawaii. 18 U.S.C. Hawaii ex- § money count”). back. charged tortion Stauffer confronted Leonard Count Three trav- place work, again Leonard’s carry el in commerce to out unan- interstate nounced, charged Hawaii extortion scheme. threatened Leonard and (“the count”). family Leonard’s over the Finally, U.S.C. 1952 travel § money. charged conspiracy Count Six to use ex-

tortionate means to collect an extension of In addition to the activities mentioned credit from in an individual Nevada. 18 above, following evidence relates to the (“the U.S.C. Nevada extortion § charge drugs to distribute count”). contained Count One. On two or three occasions, charge

The basis for the interstate travel Stauffer drove from Santa Cruz contained in Count Three stems from to Santa Rosa where he met his brother. having Then, Wallstrum hired Stauffer and his brother met ** Muecke, by designation. Honorable C.A. Senior United States Arizona, Judge sitting District for the District of car, (Count Three). alone in a and Wallstrum Wallstrum extortion On Count Six directly (Nevada distributed cocaine to Stauffer’s еxtortion), argues Later, money Stauffer delivered brother. prove Government failed to an essential payment to Wallstrum cocaine crime, i.e., element of the an “extension of previously “fronted” Wallstrum the credit,” judgment and that on Count Six town, When his brother left automobile. right against violates his being placed in Stauffer told Wallstrum to contact him if jeopardy. double anything. Wallstrum needed Beginning on June Stauffer was DISCUSSION day jury tried a three trial before the Schwarzer, Honorable William W. U.S. Dis- Demand, I. Whether a Money has after trict Court for Northern District of Hands, Changed Return for of jury California. On June re- Money Repayment, and Deferral of turned its verdict. to Establish an “Extension Sufficient Credit” Pursuant to 28 U.S.C. The verdict form reflected convictions on of 89) 891(1) Purposes § § conspiracy, distribution Hawaii of Proving the Nevada Extortion Count. extortion, counts, acquit- and travel Nevada Post- tal on the extortion count. A. Standard of Review jurors, interviews of sеveral initi- Stauffer did not make a motion for counsel, ated Stauffer’s determined that acquittal directed to the Nevada extortion had made a clerical error. The count at the close of the evidence. There jury apparently became confused concern- fore, any numbering he has waived claim for reversal ing the of the counts on their copy superseding They insufficiency indictment. based on evidence. acquit had the Hawaii extor- proper intended The court’s review of this issue is count, and convict on the Nevada ex- only tion miscarriage to avoid a manifest tortion count. The trial court solicited affi- justice plain or error. United States v. jurors. jurors davits from the All the at- Mora, (9th Cir.1989). tested to the clerical error. post-trial hearing At a final on November B. “Extension of Credit” 9, 1989 the District Court switched the Stauffer was convicted under 18 U.S.C. on the two extortion counts to

verdicts 894(a)1 tо use extortion- § correct mistake and denied to collect an extension of credit. ate means concerning post-trial motions contends that the financial trans- sufficiency of the evidence on the Anthony action Fiori and between Charles Judgment distribution and travel counts. Leonard did not constitute an “extension of accordingly re- was entered and Stauffer credit.” years prison ceived a sentence of five 891(1) Title 18 U.S.C. defines an exten- (Counts running concurrently), § One Six of credit: (Count sion years probation followed ‍​‌‌‌​​‌​‌​‌​‌‌‌​​‌​‌​​​‌‌‌​​​‌‌‌​‌‌‌​‌​​‌​​​‌​‌‌‍five Three). make or To extend credit means to renew loan, any agreement, or to enter into any appeal, argues that On express, whereby repayment tacit or presented insufficient evi- Government claim, or satisfaction of a debt or wheth- his convictions for con- dence One), acknowledged disputed, er or valid or (Count spiracy drugs distribute invalid, arising, may and howеver or will and for interstate travel from California to carrying purpose Hawaii for the out be deferred. (2) 894(a) non-repay- provides punish any person for the

1. Title 18 U.S.C. as follows: § thereof, fined not more than ment $10,000 shall be (a) any knowingly participates Whoever years imprisoned so, not more than 20 or way, conspires any use of or to do or both. means extortionate (1) any in the indictment attempt Both of the extortion counts to collect оr to collect ex- credit, charged section. were under this tension of 891(6) Again, the Ninth addition, an extortion- debts. Id. at 1375-76. defines § “any broadly, upholding credit as extension of Circuit read the statute ate extension under- to which it is the respect though the transactions credit with the conviction even the creditor and debtor standing of typical of standard lacked the formalities delay making is made the time it loans, specified rates and such as interest failing to mаke repayment or myriad legal characteristics. their other of violence or other in the use could result Id. at 1377. per- cause harm to the criminal means to given the definition Stauffer admits that ” drafting Extortionate son .... very of credit” is broad. to “extension legislation, Congress in- Credit Transaction Nevertheless, the evidence argues he recognize “a criminal offense to tended to presented at trial does not fall within by extortionate an indebtedness collect relies on United broad definition. Stauffer means, the indebtedness regardless of how Polizi, 801 F.2d 1543 Cir. Cong., 90th Conf.Rep. No. arose.” 1986), the defendants a case where one of Sess., in 1968 U.S.Code reprinted 2d. that no extension of credit had claimed legisla- Cong. Ad.News & Hall, a Mr. Hall had been made to because Congress created history clear that tive making defendant into the loan. defrauded weapon “a to be used with this statute as This stated that whether transac Court at vigor imagination_” Id. loan, simple “a an question tion in involved consistently recognized have Courts scheme, illegal outright investment an Congressional intent that the extortionate embezzlement, an extension of there was broadly interpreted to credit statutes be tacit long credit as as there was at least a many types of “credit exten encompass repayment.” agreement to defer Id. traditional loans.2 For ex sions” besides Stаuffer, According proof con to Bonanno, ample, in v. 467 United States agreement lacking in the cerning a tacit Cir.1972), denied, cert. 410 F.2d 14 case; presented the evidence at tri instant 909, 964, 271 93 S.Ct. 35 L.Ed.2d U.S. Anthony gave money suggests al Fiori (1973), drug smuggler given had been pur Leonard for investment to Charles drugs his up purchase front to for $5000.00 Thus, poses rather than a loan. Stauffer awry venture went partner. the argues, failed to establish the Government being drugs were lost while when the an extension of credit.3 partner Mexico. When the flown in from regain in an effort to made threats The Bonanno and Andrino cases “investment,” the Ninth determined Circuit clearly support the existence of an exten clearly activities were within that “[these] in the instant case. The sion of credit proscriptions the and it the ambit of Act’s case, repayment in the instant demand for spirit inconsistent with would be Andrino, as in occurred af Bonanno otherwise.” Id. at 16-17. Act to find money initially chаnged hands. Al ter the though Leonard and Fiori testified that Andrino, v. Similarly, United States good money in connec transfer was faith (9th Cir.1974),the defendant 501 F.2d 1373 deal, a real estate investment tion with repayment for after individ- made demands easily from the large jury could have concluded playing uals cards had incurred Totaro, 969, fictitious”); wholly v. Lopez, United States 2. See United States v. 803 F.2d 974- Cir.1986), 1030, denied, 957, denied, (4th Cir.), rt. cert. 75 550 F.2d 958 431 ce (1987) (defen (1977) L.Ed.2d 530 107 S.Ct. 95 L.Ed.2d ‍​‌‌‌​​‌​‌​‌​‌‌‌​​‌​‌​​​‌‌‌​​​‌‌‌​‌‌‌​‌​​‌​​​‌​‌‌‍232 U.S. (when 97 S.Ct. dant, agreed accept to bad checks and hold who defendant tried to recover a check deposited, ex sufficient funds were them until honor, that the bank would not court found the statute); pursuant credit tended credit). check to be an extension of (3rd DiPasquale, 740 F.2d States v. Cir.1984), U.S. 105 S.Ct. opinion suggests if 3. A Third Circuit funds (1985) (organized crime 84 L.Ed.2d 364 provided purposes— investment have been use of torture in an effort to coerce defendants' as a loan—no credit is extended. rather than payments compelled the court to determine that Giampa, See United States agreement to defer the of a debt "an may 1985). (3rd Cir. debt, implied even if the debt from (1st Gunter, Brown was no ordi- that this presented evidence “the defen 1977), stated that the court Fiori Cir. transaction. When nary real estate only at stake. is not one it interest Leonard, delivered dant’s he money to gave the interest ‘the societal also consider Moreover, re- must We after bag. paper ain guilt is clear after whose punishing one made three Leonard repayment, quest ” trial.’ at 125. Id. he has obtained Leonard fair] not [a until It installments. from other circuits similar cases Several payments that Stauffer making stopped in accord.4 though Leonard’s Even him.’ confronted view he did not suggests that testimony though the district argues that Stauffer loan, as a from Fiori money he received guilty switching properly court acted jury to for the evidence there is sufficient extortion acquittal tо Hawaii short, the evidence agreement. an infer Two) true (Count to reflect count finding that extension supports a intent, of the double violation it was a Therefore, con- this Court occurred. credit acquittal clause to switch jeopardy justice or miscarriage of no cludes that extortion count Nevada guilty on the jury found when occurred plain error first Six). argues that the (Count Nevada extortion on the guilty jury left the when the concluded jeopаrdy (Count Six). count not courtroom, should the district court guilty to reinstate be allowed thereafter Correc- District Court’s II. Whether no matter how acquittal, jury verdict over Switching it a Verdict tion of Allowing the jury’s error. egregious the Guilty to Correct a Acquittal from action, according such court take district Jury on Error made Clerical histor- Stauffer, do violence to would the Double Violates Form the Verdict trial in a jeopardy notion ical Jeopardy Clause. pоst-verdict, prejudg- open in a leaving it remain- argues that limbo. Stauffer ment of Review A. Standard of the purpose and to the nature ing true correction Court’s the District Whether pro- requires that clause jeopardy double jeop the violates double verdict form of the expe- has the defendant arise after tection by this de novo ardy clause is reviewed read, trial, has been verdict rienced a the Schwartz, 785 v. States United Court. here. discharged, happened as jury the denied, 479 Cir.), 673, (9th cert. 676 F.2d 290, 264 890, 93 L.Ed.2d 107 S.Ct. U.S. Modifications C.Verdict (1986). supporting correction law is case There Jeopardy Double Scope

B. of jurors. the intent to reflect judgments Dotson, F.2d 1127 v. 817 Sanders, In United States 591 v. In States United grounds, 821 Cir.), on other (5th Cir.1979), stated (9th this Court 1293 F.2d modified Cir.1987), jury returned (5th F.2d 1034 jury is when “jeopardy attaches on all convicting the defendant 1296, quot verdict Id. empaneled sworn.” dismissed, jury was After counts. ten Bretz, 98 S.Ct. v. ing Crist tell him judge to phoned jurors (1978). At that two 2157, 24 2156, 57 L.Ed.2d acquit on the actually voted jury right to that a “valued has the defendant point, jurors’ confirming the After count. particular tenth by completed trial his have changed disclosure, judge the district Double Id. omitted] tribunal.” [citation the tenth acquittal on to reflect limits. verdict its has however jeopardy protection Welch, polling); v. 1175, changed Mears, after verdict 1179 614 F.2d United States Shiflett See denied, Cir.), (4th U.S. 332 945, cert. denied, 161 F.2d 933 100 S.Ct. (8th Cir.), U.S. 446 cert. (after (1947) 362 92 L.Ed. S.Ct. (1980) (affirming 68 the dis L.Ed.2d 801 a mis jury, corrected discharging the court change allowing jury court's decision trict guilty" of "not takenly verdict announced declared "guilty” the foreman after its verdict shown when it was changing "guilty” stating it to “not verdict open form court that indict in the two counts jury had confused the ment). incorrectly signed); guilty” was Cir.1979) (6th (jury Love, F.2d 85-87 affirmed, count. The Fifth Circuit conclud- diet form to jury’s reflect the true intent. ing that the district court’s action was a Clearly, decreasing impact judg- of a permissible exception general prohi- ment problematic is less to а defendant against inquiry validity bition into the of a expanding Still, than impact. its this Court jury’s 606(b) verdict found in Rule of the possible convinced that no can unfairness Federal Rules of Evidence. at 1130. Id. judgment found in a that reflects the Despite true intent.5 Stauffer’s ad- prior The Ninth Circuit case most similar persuade mirable effort to this Court that to the instant case is United States v. right to be free jeopardy from double Anzalone, (9th Cir.1989). 886 F.2d 229 violated, has been the facts do not Anzalone, jury returned а verdict of a conclusion that jeopardy double acquittal on several counts of the indict clause has been compromised in this case. ment. jury when the polled, was juror one not state that could III. Whether the Verdicts Guilty was her judge own. sent jury back the Conspiracy to Drugs Distribute for further deliberations but a unanimous (Count One) Count and the Travel verdict could not be reached. A mistrial (Count Three) Count Supported was ‍​‌‌‌​​‌​‌​‌​‌‌‌​​‌​‌​​​‌‌‌​​​‌‌‌​‌‌‌​‌​​‌​​​‌​‌‌‍declared and the defendant was lаter Evidence. Sufficient retried charges. on the same This Court A. Standard of declared that Review subsequent defendant’s con viction on one counts that previ There is sufficient evidence ously guilty announced not did not violate support a any conviction if rational trier jeopardy double clause. The Anzalone fact, viewing after light the evidence in the prior court cited a case, Ninth Circuit Unit most government, favorable to the could Nelson, ed States v. 692 F.2d 83 Cir. found the guilty have defendant beyond a 1982),that question addressed the of when reasonable doubt of each essential element Nelson, verdict becomes valid. charged. the crime See United States v. this Court indicated that the jury’s task is Linn, Cir.1989); complete finished, when deliberations are Hernandez, United States v. “the open court, result is announced in — (9th Cir.), U.S. -, no juror registered.” dissent Id. at 110 S.Ct. (1989). L.Ed.2d 135 84-85, quoting United Taylor, States v. “[Cjircumstantial can evidence be used to (5th Cir.1975). 507 F.2d 168 provе fact, any including facts from which inferred, another fact is to be case, In and is the instant not to the was distinguished be from testimonial discharged judge the evidence before corrected the insofar as the jury’s fact-finding verdicts. this is might While Court function seem to concerned. United going Kelly, be than States further and Anzalone Nel (9th F.2d Cir.1976). if son it switch, the district affirms court’s suspicion speculation mere or ruling such a does not appropriate. rise appears Rule 36 to thе level of evidence. the Federal sufficient Rules of Criminal Procedure Lewis, States v. provides: Cir.1986). judgments, Clerical in mistakes orders or parts other the record and errors in B. Count I: Conspiracy arising

the record to Possess oversight from with Intent to may omission Distribute be corrected the Court any notice, at time and after such any, if Stauffer dispute not does that his as the court orders. brother, Wallstrum, Fiori, among and oth The district ers, court did not alter jury’s the were involved in drug distributiоn itself; simply it the corrected ver- conspiracy.6 Once the existence of a con- exception 5. Stauffer took no to the method used The elements of such a are: by the district to determine court true the inten- 1) agreement accomplish an illegal to ob- fact, jury; tion of sug- the in 2) his trial jective, counsel coupled one with or more acts in gested it and carried it out. 3) illegal purpose, furtherance of the and circumstances, viewing the these establishing be- Under evidence proved, is spiracy government, the in favor of the con- evidence defendant’s doubt reasonable yond a to though appears to be sufficient evidence conspiracy, even with nection of Stauffer on jury’s sufficient to conviction “slight,” is connection Further, im- participation conspiracy count. knowing drug defendant convict testimony that F.2d at plausibility of defendant’s Penagos, conspiracy.7 in in thе transaction was uninvolved he and and Wallstrum his brother between compare the instant attempts to extortion-type he was uninvolved that innocent case where an Penagos, a to case verdict. supports activities drug dis- conviction bystander avoided testimony provides implausible Stauffer’s court conspiracy. Penagos tribution jury to that for the conclude basis failed to government that determined testimony is true. United of his opposite behavior defendant’s case because prove its Martinez, with of one that perfectly consistent was Cir.1975) disbelief of a defendant’s (jury's in the interest having no stake or its partial basis for testimony provide a can know con- not even and did he transaction opposite true when that conclusion present.8 was traband draw- objective evidence buttresses other established at trial The evidence inference). ing the more cocaine distributed Wallstrum that directly to Stauffer’s one occasion than for the Interstate Travel III: C. Count presence brother—in —while Extortion Carrying Out Purpose of his own car. alone men sat three Stauffer, the indi- According to evidence knowing admitted to testimony, Stauffer nothing more than guilty that he is cates brother envelopes given his that hang with taste to around having the bad Stauffer’s coordinated cocaine. contained advantage of a brother, taking his brother, driving (i.e., meеting his actions ex- go to Hawaii Wallstrum’s to chance Rosa, and meet Santa Cruz to from Santa govern- thus, argues, the pense; evidence Wallstrum) circumstantial ing its case. prove failed to ment acting to further that he suggesting contention, the Despite Stauffer’s Also, evidence there was conspiracy. that Stauffer establishes currency to Wallst evidence delivered that Stauffer travel Wallstrum were hired brother previously the cocaine payment rum help locate Heinold Hawaii automobile. in the by Wallstrum “fronted” Though money get his back. have concluded Wallstrum addition, jury could no di apparently indicated mon Wallstrum to retrieve threats Stauffer's were violence or actual threats in Nevada were rect gave Mr. Leonard ey Fiori used, were selected the Stauffers record conspiracy. The with the connected would they he believed because attempted to Wallstrum that when shows with his involvement discreet about be debt, Stauffer knew this collect Furthermore, threats drugs. was source income primary Wallstrum’s coupled with in Nevada Leonard against part that all or trafficking and threat Stauffer’s brother to the evidence collecting belonged money he visit, during a second Heinold Mrs. ened Wallstrum. 348; States see United Penagos, also necessary the un- to commit requisite intent Cir.1989) Esparza, 876 v. (“the F.2d derlying offense. substantive properly ‘connec- ‘slight’ modifies Penagos, F.2d word v. States United to that which Cir.1989). It is tied tion’ and not ‘evidence.’ type of evidence or proved, not has "slight” context in this the word use of 7. The proof”). burden proximity confusion. Mere source of been activity not sufficient of illicit to the scene (govern- Hernandez, F.2d at 779-80 8. See conspiracy, al- involvement establish pres- mere more than to show ment has burden ence). may support inference such though presence evidencе. with other in context viewed when powerful circumstantial evidence that support the verdicts on Counts One and the two went to Hawaii planning as team Three. prior As discussed in sections of giving to intimidate Mrs. Heinold into infor- opinion, this there was sufficient evidence mation that would lead to support the verdicts. short, money. Wallstrum’s the evidence When a district court lists several was sufficient to sustain defendant’s con- taking action, reasons for a certain and one

viction on Count Three. flawed, of the reasons is the district court’s decision should still upheld if other rea IV. it was Clearly Whether Erroneous short, ruling. sons the Dis the District Court ‍​‌‌‌​​‌​‌​‌​‌‌‌​​‌​‌​​​‌‌‌​​​‌‌‌​‌‌‌​‌​​‌​​​‌​‌‌‍to Deny De- trict denying Court’s decision defendant’s Judgment Motions fendant’s motions clearly was not erroneous. Acquittal on Counts One and Three they on the Ground that were Un- CONCLUSION

timely. argues that the AFFIRMED. District Court based, part, abused its discretion when it

its denial judg- FARRIS, of defendant’s motions for Judge, Circuit concurring: acquittal ment of аs to Counts One and I concur in the result reached ground Three on the that the motions were majority opinion. untimely.

A. Standard of Review

The District Court’s denial of defendant’s being, among things,

motions for other un

timely finding. involved a factual Factual

findings are reviewed under the defer ential, clearly erroneous standard. United INSURANCE COMPANY OF the McConney, PENNSYLVANIA, STATE OF (9th Cir.) (en banc), Plaintiff-Appellant, (1984). 105 S.Ct. 83 L.Ed.2d 46 ASSOCIATED INTERNATIONAL

B. Whether the District Court’s Deci- COMPANY, INSURANCE Clearly sion was Erroneous. Defendant-Appellee. transcript The trial in this case that, presentation shows at the end of the No. 89-55639. evidence, Stаuffer’s trial counsel dis Appeals, States Court of acquittal cussed motions for based ‍​‌‌‌​​‌​‌​‌​‌‌‌​​‌​‌​​​‌‌‌​​​‌‌‌​‌‌‌​‌​​‌​​​‌​‌‌‍on in Ninth Circuit. sufficiency of the evidence as to the Stauffer, and travel counts.9 Argued July 12, and Submitted 1990. thus, argues that the trial ruling court’s Decided Dec. motions, denying post-trial in part, for As Amended Feb. they untimely, reason that were should be reversed.

Even if the District wrong Court was

conclude that the motions were untimely,

the District deny Court did not

post-trial solely motions on the basis of

untimeliness. The District Court also indi-

cated that there was sufficient evidence to able, transcript indicated that the reporter official to contact the court in order to garbled exactly as to precise what was stated. understanding Stauf- obtain a more of what appellate attempted, fer's counsel but was un- was said.

Case Details

Case Name: United States v. Jon Darrell Stauffer

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 21, 1990

Citation: 922 F.2d 508

Docket Number: 89-10581

Court Abbreviation: 9th Cir.