*1 added) imposition a that the of 92 sis indicates denied, 478 U.S. judgment per- Furthermore, suspension of (1986). sentence after “state L.Ed.2d missible, had served if the defendant even expositors of state ultimate courts are the probation. a condition of by con- time as law,” the state’s are bound and we appears that except it when struction addition, Supreme In the United States subterfuge to obvious interpretation is an constitutional for the feder- has held it Court issue. of a federal consideration evade the (1934), § al courts under 18 U.S.C. 684, 691, Wilbur, 421 Mullaney U.S. v. suspend § predecessor to 18 U.S.C. (1975). 1881, 1886, 44 L.Ed.2d S.Ct. proba- pending imposition of a sentence here, subterfuge therefore no such There is tion, leaving sentencing court free to Supreme Idaho Court’s accept the we must might any originally it have impose sentence original order consti- interpretation that the upon probation. Rob- imposed revocation of judgment, and that the withholding of a tuted 264, 271, 64 erts v. United county jail constituted a days spent in sixty 113, 117, See also 88 L.Ed. S.Ct. probation. condition of Peltier’s McDonald, States v. (9th Cir.1980) suspen- (approving of the question remains as to whether by imposition of of sentence followed sion judgment and withhold the Idaho court can possible originally imposition of sentence which includes years probation, impose five probation following of under revocation county jail days as a condition sixty in the 3653). § If unconstitutional for the it is not proba probation, upon then violation sentencing impose such a federal courts twenty years impris tion sentence Peltier scheme, for the is not unconstitutional of the running afoul double onment without Therefore, no error Idaho court to do so. Because the Constitution. jeopardy clause of by district court in dis- was committed that such a previously indicated we have missing petition Peltier’s for writ of habeas in when sentencing is constitutional scheme corpus. courts under federal stituted the federal respect law, actions with we hold that Idaho’s AFFIRMED. were constitutional.
to Peltier
First, Clayton, 588 v. United States (9th Cir.1979), that a we found
F.2d 1288 a con-
judgment years probation with of five being Clayton probation
dition of that ninety days consecutive weekends serve America, UNITED STATES legal. “This is a jail-type institution was Plaintiff-Appellee, legal sentence the discretion within court, Clayton the condi- violated when ROBERTSON, upon probation, tion of the court revocation Paul Juan impose Defendant-Appellant. the sentence it probation could originally imposed, 18 U.S.C. might have America, UNITED STATES original § if severe than the even more Plaintiff-Appellant, Clayton, Id. at 1291. sentence.” year original judgment imposed a six sen- tence, suspended on the condition which was ROBERTSON, Juan Paul Clayton years probation, five serve Defendant-Appellee. jail- along ninety days in a of weekends 92-50395, Nos. 92-50460. entirely type case is not institution. Peltier’s Appeals, United States Court analogous, ordering than in that rather Ninth Circuit. it, suspending the Idaho sentence and then imposition judgment, judge withheld 5, 1993. Argued and Submitted Oct. However, probation. instead ordered Decided Feb. Clayton, court could im- dictum that the might originally have pose “the sentence it than the
imposed, ... even if more severe sentence,” (empha- at 1291
original *4 when he was CA, dispose of the contents Warren, could Diego, San Glenn Stewart jail. from cross-appellee. released defendant-appellant, Peterson, Assistant Steven W. later, showed About one week CA, Diego, for the Attorney, San in Phoenix estranged house up at his wife’s cross-appellant. plaintiff-appellee, wife, His then Eddra driving the Cadillac. money large amount of
McCarthy, saw a the trunk. Robertson of cocaine in two kilos open deposit a safe box at wife to told his money there. place Phoenix bank NELSON, REINHARDT, T.G. Before storage in Phoenix for put He the Cadillac KAUFMAN,* District Judges, and Circuit instructed his wife to year. Robertson also Judge. than money in amounts less transfer $10,000 accounts in the into bank different NELSON, Judge: T.G. Circuit him asked about Phoenix area. When Silva Cadillac, that AAA told Silva I locate his car. Silva had been unable to February, *5 discharged Robertson. OVERVIEW stopped practicing law and moved Robertson (Robertson) appeals large Paul Robertson several cash Juan Arizona where he made to conspiracy pos- and for including his convictions purchases, a house. with intent to distribute of cocaine session and his cousin Marco Walter Guarderas Four) (Counts through and RICO One drug and Robertson’s for- were traffickers (Count Six). we conclude that the Because November, 1984, and mer clients. In Walter prove that the enter- failed to Government thirty-kilogram shipment of Marco a received commerce, we re- prise affected interstate from New York. Walter delivered cocaine count. affirm the re- the RICO We
verse at his twenty of the cocaine to Marco kilos Four, through but va- maining Counts One Torrance, As house in Walter California. regard to those cate sentences recognized leaving, spotted he a car he was resentencing. for counts and remand house. parked outside Marco’s as Robertson’s he knew Marco was Walter testified that
II having difficulty getting paid for the cocaine apparently sold on' credit. Walter he had HISTORY AND FACTS PROCEDURAL again. never saw Marco working years as a law- After for several mid-January, Robertson arrived In Government, opened Robertson a yer for the with a suitcase full of at his home Phoenix Angeles empha- private practice law in Los poured cocaine cocaine and cash. Robertson for traf- sizing criminal work defense poured Eddra on the kitchen table and November, 1983, In Julio Silva- fickers. then hit cocaine down the sink. Robertson (Silva) Lopera retained Robertson defend her, hallway to the dragged her down charge. Silva him on a federal cocaine told her the contents of the bedroom and showed that he had two kilos of cocaine Robertson (cocaine $400,000). about He suitcase $980,000 trunk of concealed his stated, you think this is all then “What do parked his Reseda home. Silva Cadillac near to make us a lot of going about? This is "wifeand Robertson to contact his have asked money!”1 storage goddamned placed in so he the Cadillac * Kaufman, going to make us a lot of Guarderas! This is Frank Senior United Honorable A. Judge Maryland, killing money!" goddamned States District for District Reference to the sitting by designation. a confidential marital was ruled as inadmissible present- version statement the edited 1. This was communication. fact, jury. In the statement included in ed to the the report presentence follows: "What is as do just you all about? I killed Marco think this is January, In Robertson moved in with ruvian cocaine traffickers who were demand- they couple ing married in Phoenix where wit- Rodriguez ransom for his release. handling of thou- negotiated nessed Robertson hundreds Robertson for Maldonado’s re- large quantities sands of dollars and of co- lease. The Peruvians released Maldonado caine. When Robertson learned Rodriguez after kilograms delivered five gold mining husband was interested in wife, cocaine. Robertson told new Sue Alaska, agreed gold Canada, Robertson finance negotiated that he had the release of mining partnership Alaska called Double his client kidnapped. who had been Eagle Mining After Co. Robertson and the June, 1987, In after Maldonado received a partnership husband’s son entered into a large dealers, amount of cash from cocaine agreement, partnership purchased placer gave Enrique he Dulong a suitcase contain- ($125,- gold mining claims near Fairbanks $420,000 ing of that cash and two ounces of 000), ($100,000), mining equipment and travel cocaine for safekeeping. Maldonado was expenses employéés. for seven soon arrested and retained Robertson to de- paid nearly expenses for all of these in cash. fend him. Dulong Robertson contacted partnership was soon dissolved but Rob- $30,000 him asked for Dulong gave which operating through ertson continued the mine him from given the suitcase. Via a note Mining 1987 as Robertson Co. In order to Robertson, Dulong Maldonado authorized mining operation finance the for the 1986 $250,000 release to Robertson. Robertson season, $300,000 applied for a loan told Maldonado that as soon as he was re- using his Arizona home collateral. Silva’s bail, leased on he should flee and that the Cadillac was driven to Alaska for use $250,000would be contingency used as a fund mining operation. pay off the bail Dulong bond. released Ange- 1980 or 1981when he inwas Los $200,000 August to Robertson on *6 les', Stephens Robertson had asked Dean to bail, When Maldonado was released on he sell cocaine for him on a few occasions. Af- asked money Robertson about the and was so, Stephens ter did he turned the mon- over told that it was in a trust account in Robert- ey to Robertson less his commission. Rob- son’s name and the name of the bail bonds- supply Stephens ertson continued to with man. Maldonado did not .flee and told Rob- Stephens cocaine to sell after moved to San money Dulong, ertson to return the to which Diego in drug trafficking opera- 1984. This $25,000 only he gave never did. Robertson Stephens through tion with continued 1987. to the bondsman and never returned the 1986, client, In Robertson’s former Rodri- remaining Dulong. amount to Maldonado or consultant, guez, immigration and an Maldo- $25,000 The bondsman later returned the to nado, supply offered to Robertson with co- Robertson. Robertson instructed Sue Cana- October, 1986, During caine for resale. and place da to shoe boxes full of cash in a safe March, 1.987, Robertson was involved in a deposit deposit money box and then to whereby series of transactions Rodri- $10,000 increments than less into the bank at Maldonado, guez, supplied and Giron cocaine cheeking various times. The account was Stephens. to Robertson who then sold to 17, 1987, beginning July used and Canada Stephens then sold the cocaine to other deal- deposit made the last on November ers, including Cheryl and Elizabeth Grove 17, 1991, grand jury On October a federal Ledford. for the Southern District of California re- wiretap The district court authorized a eight-count superseding turned an indict- (cid:127) telephone January Grove’s 1987. Two against charging ment him with Robertson possession weeks later she was arrested for cocaine, conspiracy possess with intent to kilogram of one of cocaine which was Robert- distribute in violation U.S.C. agreed son’s. Robertson with Dean Ste- (Count 841(a)(1), One); §§ possession of phens that it would be his best interests to cocaine with intent to distribute in violation represent Grove. 841(a)(1) (Counts Two, § of 21 Three U.S.C. May, Four); In Rodriguez facility told Robertson use of a & communication kidnapped by felony Maldonado had been of a Pe- furtherance narcotics violation Cir.1979), Rone, 843(b) (Count Five); racke- States § 21of U.S.C. Little v. United of 18 U.S.C. rt. denied sub nom. activity in violation teering ce forfeiture, 1962(a) (Count Six); § RICO (Count Seven); continuing (1980). However, § 1963 in determin U.S.C. L.Ed.2d 780 (CCE) in of 21 violation enterprise criminal commerce nexus ing whether the interstate (Count jury found Eight). § U.S.C. permissi enterprise, “[i]t results from the through. One guilty as Counts Robertson charged from acts also ble to find nexus Five guilty on Counts and not Four Six predicate acts when those constitute as as to jury was undecided Eight. The Bagnariol, 665 enterprise.” activities of it was later dismissed. Count Seven added). “A minimal (emphasis F.2d at 893 twenty years on interstate commerce satisfies was sentenced effect Robertson concurrently on all run Because imprisonment jurisdictional element.” Id. at 892. years supervised release. counts with five separate mining venture was from court did not sentence Robertson The district activity, predicate acts are not criminal Sentencing Both pursuant to the Guidelines. analy commerce considered the interstate appeal. and the Government sis.
Ill
Burke,
Alaskan has an effect on interstate merely supplies, equip commerce because Robertson next contends that the district employees shipped ment and are there. We admitting court erred in several items of to do so. decline challenged evidence. The evidence can be reason, reject For the same we prior evidence, characterized as bad act arguments Government’s that Robertson’s exception ledger evidence. airplane fly use an from Arizona to Alaska and his use Cadillac connec The district court’s construction of tion with the mine were sufficient to establish 404(b) question Fed.R.Evid. ais of law re requisite impact on interstate commerce. viewed de novo. United States v. Bibo-Rod had, most, only These activities at an inciden riguez, Cir.), cert. tal effect on interstate commerce. There — denied, -, U.S. fore, proof absent enterprise the RICO L.Ed.2d 1028 This court reviews for itself had more than an incidental effect on abuse of discretion district court’s deci commerce, interstate we reverse the RICO prior sion to admit bad act evidence under conviction. 404(b). *8 Fed.R.Evid. Heg United States v. (9th wood, Prejudicial Cir.1992), B. Predicate Acts 496 cert. Effect of denied nom. sub Wilson v. United racketeering contends that — U.S. -, 2348, 124 113 S.Ct. L.Ed.2d prejudicial acts 6 and 7 were so as to contam (1993). Similarly, 257 the district court’s de therefore, inate the entire trial and he ar regarding cisions prejudice relevance and are gues, remaining counts should be re for reviewed abuse of discretion. United reject versed. We this contention. Predi (9th Daly, cate States v. pertained acts 6 and 7 1216-17 Robertson’s Cir.1992). stealing money property from Silva and denying
3. Robertson raises several other issues with re- CJA funds to locate a defense witness gard to the RICO conviction. He contends that allegedly who was the owner of the Cad- stolen (1) denying the district court erred in: his re- (racketeer- predicate illac which served as a act count; quest special for verdict on the RICO six). ing act He also claims that the RICO stat- (2) refusing to dismiss the RICO count for lack of unconstitutionally vague. ute is Because we re- venue; (3) denying his motion to sever the RICO verse the RICO count on interstate commerce counts; (4) excluding Agent and CCE Devetko's grounds, we need not address these contentions. and, (5) testimony relating charge; to the RICO 870 find that the error L.Ed.2d 294 We only admit- can be act evidence Prior bad 404(b)4 did not ar if that evi- was harmless. Government Fed.R.Evid.
ted under disappearance (1) point; gue closing that Marco’s prove a material tends to dence: (3) time; play (2) is based of foul attributed was the result is not too remote (4) Brown, evidence; and, F.2d at 1016 some 880 Robertson. upon sufficient Cf. charged. (error cases, prior offense act evidence not to the to admit bad is similar 1400; also F.2d at see refer Bibo-Rodriguez, 922 there were continued harmless where Houser, F.2d closing argument). v. prior acts in United States ences to bad Cir.1991). (9th Finally, if the evidence even jury hear Robertson’s statement Nor did the prerequisites, be those four satisfies the limited ref that he killed Marco. Given probative if val- Rule 403 its excluded under incident over the course of erence to the outweighed by danger substantially trial, ue is find that a rational fourteen-day we Bibo-Rodriguez, 922 prejudice. unfair of that jury not have drawn the inference would 1400-01. F.2d at Marco. Robertson killed Furthermore, at trial over- the evidence Marco Guarderas Disappearance 1. of guilt on whelmingly established Robertson’s evi introduced The Government drug charges. The heard evidence twenty purchased kilos that Robertson dence witnesses that from several Government was from Marco and that Marco of cocaine trafficking charged cocaine as Robertson was the cocaine. payment to obtain unable in the indictment. Maldonado testified cousin, Guarderas, Marco’s testified Walter Sandy supplied cocaine to Robertson. he aware of Marco’s unsuccessful that he was they Stephens testified that ob- and Dean from Robertson. He also efforts to collect Robertson to sell. No tained cocaine from had seen a car similar testified that he to connect Robertson evidence was admitted parked at Marco’s house Robertson’s argument and there was no to the murder again. con he never saw Marco We linking part Robertson to Government’s admit that it was error to evidence clude Therefore, are con- Marco’s murder. we disappearance. evidence was Marco’s Such light was harmless in vinced that the error 404(b) it did under Rule because inadmissible strength against of evidence both the overall any prove a material element not tend drug mini- counts and the Robertson on charged offenses. disappearance mal reference to Marco’s during lengthy trial.5 which occurred Although we conclude that it was testimony, need not to admit such we error Drug Use if drug convictions we find reverse the Similarly, there is no need to de harmless. the error was United States Cir.1989). (9th Brown, cide whether the admission evidence F.2d error, was since we are is Robertson’s use erroneous admission “[A]n such error was harmless. probable if it more than not that convinced harmless above, overwhelming jury’s there is did not affect the ver As described its admission convictions, support Harrison-Philpot, direct evidence dict.” United States Cir.1992), including testimony of re cert. de witnesses who - nied, -, pos- numerous occasions when he counted U.S. *9 sion, however, 404(b) of the Government made an offer 4. states: Fed.R.Evid. proof crimes, to the content of Walter Guarderas’ as wrongs, or acts is Evidence of other objected prove testimony at time on of a and that Robertson not admissible to the character conformity person grounds. in order to show action in has not relevance The Government however, may, for It be admissible objection therewith. argued and that Robertson waived this motive, oppor- purposes, proof such as other plain review should be under the error that our intent, knowledge, plan, tunity, preparation, do we conclude that our review standard. Nor identity, or absence of mistake or accident.... plain error. Robertson raised his should be for objection immediately preceding Wal- relevance a con- 5. We note that Robertson did not make testimony arguably and covers the issue ter's testimony regard- temporaneous objection to the raised here. ing disappearance. Marco's Prior to its admis- large quantities legal of Robertson have earned in sessed distributed fees in (the stolen) cocaine.6 year money when the was deposited was into this account. This evi- Drug 3. Possession dence was relevant to establish an element of dence that Robertson had [15] The Government possessed varying introduced evi- predicate act), RICO charge and was therefore (the money laundering properly admissible. drugs through from quantities of 1987. testimony that
Robertson contends in several witnesses who observed Robertson 5.Forgery
possession of cocaine was irrelevant. We Connell, disagree. large quantities drugs attorney, tax Where Robertson’s involved, consistently are have held signature “[w]e forged testified his was prior posses- of a defendant’s evidence During Robertson’s loan documents. cross- or sale of narcotics is relevant sion under examination forging Robertson admitted to 404(b) intent, knowledge, to Rule issues signature Connell's on those documents. motive, opportunity, and absence of mistake argues The Government forged loan of, prosecutions possession in or accident for documents were relevant establish of, importation and intent to distribute nar- legitimate during Robertson had little income Mehrmanesh, cotics.” United period he in illegal drug was involved (9th Cir.1982). (1984—1987); activity only that his income possessing drugs for dis- illegal drug activity; denied was from and that he purposes. pos- tribution He also denied ever illegal was therefore forced to mask in sessing more than an ounce of cocaine. The applied come when agree.7 he for a loan. We properly was entitled to draw the infer- The evidence was admissible to establish possessed large ence that because Robertson charge. an element of the RICO The evi- quantities drugs, he intended more than dence pur- indicated that after Robertson Therefore, personal use. See id. money chased home Arizona with he had prior drug possession of Robertson’s was rel- California, stolen from applied Silva he evant and admissible to establish his intent mining operation a loan to finance the distribute, an element the Government Alaska and used Arizona home as collat- required prove was on the offenses charged in eral for the loan. The loan through Counts One Four. documents were
relevant to establish the connection between Maldonado/Dulong property enterprise. the stolen and the RICO Theft forgeries The false statements and contained The evidence at trial indicated that similarly in the loan documents were relevant $200,000 approximately Robertson stole showing masking that Robertson was ille- two ounces of cocaine from Maldonado which gal illegal income and that the income was placed Dulong Maldonado had for safe proof used to invest in the mine. was Such keeping. Sue Canada testified that she necessary predicate establish one joint checking maintained a account with acts, transportation prop- interstate of stolen only money which. $10,000. erty illegally of that deposited in the investment ob- was amounts less than money money enterprise. She testified that none which tained into the RICO prior drug ordinarily argues 6. Evidence of use is 7. The Government that we review should 404(b) conspiracy prove relevant under Ride plain this issue under the error doctrine because possession with intent to distribute narcot object. Robertson failed to We decline to do so Hill, See ics. 58 United States v. 456- objected immediately preced- because Robertson (9th Cir.1991); see also United States v. ing testimony grounds, Connell’s on several in- Mehrmanesh, 831-32 Cir. cluding prejudice. relevance and undue There- 1982). exception An to this rule covers certain fore, we do not that Robertson waived his find *10 (seeHegwood, narrow circumstances 497), F.2d at 977 objection. applies but we find no need to decide if it here. 872 Filing Spousal 7. Violence & Applications Loan
6.False Tax Returns' False contends that the district Robertson admitting McCarthy’s Eddra court erred trial, Robertson of the the time At testimony poured had cocaine that after she making false facing prosecution was sink, by dragged her Robertson down the Rob in Arizona. and tax evasion statements argues He that into the bedroom. her hair court should argues the district that ertson spousal violence was a viola evidence of such objection Fifth Amend his have sustained 404(b) and, event, was tion of Rule disagree that the admis grounds. ment We McCarthy unduly also testified prejudicial. Robertson’s evidence violated sion of the you had stated: “What do that Robertson “A defen against right self-incrimination. going to make is all about? This is think this Fifth trial waives his testifies at dant who money!” conclude goddamned We us lot may be cross-ex privilege Amendment testimony was relevant establish that this by relevant his matters made amined on drug dealing activity only Robertson’s not testimony_ scope of the de- The direct Fed.R.Evid. his state of mind. See but the is coextensive with fendant’s waiver 404(b). violent reaction to her Robertson’s cross-examination.” scope the relevant of the cocaine tended establish destruction Black, 1341 drug dealing as scope of his involvement denied, (9th Cir.) (citations omitted), cert. person A importance to him. well as L.Ed.2d 557 U.S. S.Ct. possession personal of cocaine for use would (1985). cross-examination, the Govern On way unlikely responded have in the be “ questions which are ‘reason ment ask did, verbally. Robertson either physically subjects ably covered related’ to the court did not abuse its discretion district testimony.” United States defendant’s probative ruling value of this (9th Cir.1977), Hearst, any prejudicial outweighed effect. denied, cert. U.S. L.Ed.2d 90 Ledger Drug argues Robertson that the admission examination, Robertson tes- During direct prejudi drug ledger was irrelevant and of a his house for that he had refinanced tified drug ledger was admitted with the cial. The $300,000. properly was The Government testimony expert of an who testified that the him about this permitted to cross-examine ledger drug transactions. Robert evidenced attempt in an to elicit the fact transaction during admitted cross-examination son applications were false and that that the loan his; however, ledger was he denied money in the mine. obtained was invested majority pertained to of the entries money that the he also testified disregard drugs. The was free to Rob gold Alaska mine was not had invested majority explanation that the ertson’s activity. illegal He testified obtained from ledger gold related to transactions. entries only illegal activity he had on direct that the drug ledger was relevant Admission of evasion, engaged in tax but was Robertson’s connection to the establish money legally practice from his was obtained trafficking charges in the indictment and we properly per- The Government was law. not err in the district court did conclude regarding mitted to cross-examine Robertson admitting it. returns, activity fifing of the false tax prior Finally, argues that which he admitted on direct. Cross-exami- 404(b) evidence, the of all Rule matters was reason- to admission nation on both of these probative testimony. district court failed to balance ably direct Conse- related prejudicial with its in value of the evidence quently, the district court did err However, objection impact. to the extent Robertson’s overruling on self-in- Robertson’s requirement argument upon a for re- relies grounds.8 crimination III. argues the same we stated in was missible for reasons 8. Robertson also that the evidence 404(b). C.5., supra. irrelevant and inadmissible under Rule argument. reject The evidence was ad- We *11 test, granted eital of the Rule 403 lacks merit. The district court 17, September court need not recite the Rule two continuances —first from “The district 1991, 19, 1991, to balancing probative November and then 403 test when the value January 1992. It against potential for unfair denied of evidence its Robertson’s third 1217; motion for continuance prejudice.” Daly, 974 F.2d at which came on see also January Johnson, day the trial before was to United States F.2d (9th Cir.1987) argues commence. Robertson that he (upheld did admission of Rule 404(b) prepare not have evidence, time to for trial because finding that the district court Government failed release Jencks Act ma implicitly engaged balancing in Rule 403 days prior terials three effect). testimony the probative against prejudicial value pursuant the witness to the district court’s argued Because Robertson before the district order. prior court admission of the bad act unduly prejudicial, evidence would be we find prosecution testifies, witness “After implicitly engaged
that the district court
in
requires
Act
government
Jencks
requisite balancing,
though
even
it did produce any
‘statements’ made
a witness
explicitly
doing
not
state that it was
so on the
in
possession
its
subject
that relate to the
Johnson,
record. See
defense; the likelihood that the continu E. Bill Particulars ance would have satisfied the defendant’s (3) need; court, the inconvenience to the Robertson next claims that the dis witnesses; (4) opposing party, and denying trict court erred in his motion for a extent to which particulars. particulars the defendant have been bill of A bill of was necessary harmed.” Id. order to constitute revers in this case because the indict error, apprised ible “the specific defendant must show that the ment Robertson of the him, prejudice charges against thereby minimizing denial resulted in actual to his de trial; danger surprise fense.” Id. him in at aided error, 404(b) only evidentiary 9. Because we find one we the cumulative effect of errors. Rule argument regarding need not reach Robertson’s *12 874 reasonably or trial; tried and have failed protected him been
preparing for if unlikely to succeed tried or to appear to be jeopardy. See United States against double (9th Cir.1983). Brown, 1275; 761 F.2d at dangerous.” 1054 too be Long, v. 2518(3)(c). Finally, applicant § the names of al- the contained 18 U.S.C. The indictment provide judge approximate seeking wiretap dates must coconspirators, the leged occurred, illegal complete full and statement” estab alleged conduct with “a on which the comprised illegal necessity requirement. 18 U.S.C. lishing overt acts and the DiCesare, 2518(1)(c). § v. 765 activity. States See United (9th Cir.) (bill particulars F.2d 897-98 in The factual statements contained seeks to ob- when defendant not warranted probable wiretap affidavits establish names, exact dates and coeonspirator tain that Elizabeth Grove cause to believe acts), grounds, on other 111 amended
(cid:127)overt
engaged
traf
Stephens were
Dean
F.2d 543
contain full and
ficking. The affidavits also
Moreover,
“fails to demonstrate
Robertson
demonstrating
complete
the ne
statements
prejudice, or an increased risk
surprise,
example, they
cessity requirement. For
ex
stemming
alleged
jeopardy
from the
double
agents
to
plain that
had been unable
shortcomings of the indictment.” United
cooperation
coconspirators and
obtain
(9th
Burt,
operations in
further undercover
Cir.1985).
conclusory statements to that
His
high-risk
fronting
funds would be
as
form
prejudice.
effect are insufficient
establish
rip-offs.
result in
The affidavits also
it could
apprised
The indictment
See id.
physical
state that
surveillance
Grove
him
him
charges against
and enabled
of the
operating
proved
while
her vehicle
unsuc
prepare
adequate
an
defense. See DiCe-
stationary
and that the use of a
sur
cessful
sare,
Nothing
F.2d at 897.
more is
camera at Grove’s residence was
veillance
Therefore,
required.
the district court did
similarly unsuccessful. The affidavits also
denying
its discretion
Robert-
abuse
investigative techniques
explain why other
particulars.
son’s motion for a bill
See
succeed,
reasonably appear unlikely
e.g.,
Long,
Authorization of a two (1) allege any information introduced them findings: probable cause to believe committed, inaccuracy presentence in committing, has factual “an individual is vestigation report summary or of the offenses includ- or is about to commit certain thereof, shall, violations, report part the court as ing that relevant commu- narcotics (i) controverted, intercepted by wiretap, to each matter make nications will be (ii) finding allegation, or a deter targeted persons target- use the as to the and that will (internal necessary finding no facility,” quotations and cita- mination that such ed id. 2518(3)(a); omitted); § the matter controverted will not because tions U.S.C. (2) sentencing. A procedures be taken into account investigative “normal have findings predicate written record of such and deter- (structuring acts deposits in viola- appended 1956(a)(3)) be minations shall to and accom- tion § of 18 U.S.C. occurred after pany copy presentence investi- the enactment date of the Guidelines. See *13 gation report Kohl, thereafter made available United States v. 297-98 (9th Cir.1992) (where the Bureau of Prisons. there is a continuing (drug conspiracy) offense begins prior which require compliance We strict with Rule 32. (November to the Guidelines’ effective date Fernandez-Angulo, United States v. 1987) date, and continues after that the (9th 1514, 1516 Cir.1990). If the district However, apply). Guidelines we need not comply court fails to with Rule 32 when a reach this issue because the Government’s challenges defendant accuracy the factual argument straddle only is based upon racke- PSR, matters contained in the we must va teering occurring conduct after the effective cate the sentence and remand for resentenc- Guideline date. Because we reverse the ing. Id. conviction, RICO the clearly Guidelines do case, In this challenged Robertson apply. drug The convictions which we the statement he had made to his wife re affirm involve conduct prior that occurred garding the murder of Marco Guarderas. the effective date of the Guidelines. having He ever denied made that statement that it moved be stricken from the PSR. CONCLUSION motion, The district stating court denied that only that the fact that the statement was Because the prove Government failed to require inadmissible at trial did not that it be enterprise that the RICO affected interstate stricken from the PSR. The district court commerce, we REVERSE the RICO convic- comply failed to requirement either un tion. drug We AFFIRM the convictions on der Rule 32. It explicit did not make an Four, through Counts One but because the finding accuracy as to the of the statement. district court comply did not with Fed. unambiguously Nor it expressly did state R.Crim.P. drug we VACATE the convic- that would not take the controverted mat tion sentences and REMAND for resentenc- ter imposing into consideration when the sen ing. tence. id. See at 1516 n. 2. If the district court states that the contro- REINHARDT, Judge, concurring Circuit
verted matters will not be considered in specially:
sentence,
imposing
sentencing
the
record
I fully
Judge
opin-
concur
T.G. Nelson’s
unambiguously
must
reflect that the dis-
ion for
I
separately,
the court. write
howev-
placed
trict court
no reliance on the con-
er,
express my
in order to
concern over two
matters.
If
ambig-
troverted
the
is
record
aspects
first,
prosecution’s
of the
conduct:
regard,
uous
the sentence must be
second,
overcharging,
improper
the
introduc-
resentencing.
vacated
remanded for
tion into
unrelated bad acts.
Id. The district court did not
that it
state
practices unfortunately
These
appear all too
would not consider the controverted state-
frequently in prosecutions
days.
these
Therefore,
ment.
we vacate
the four
The
deeply
defendant
this case was
(Counts
through
conviction sentences
One
illegal drug
involved
trade. He also
Four)
resentencing.10
and remand for
unprofitable
owned an
legal gold
but
mine.
Sentencing
H.
simply
Rather than
prosecuting the defen-
appeals
The Government
Robertson’s sen-
dant on
overwhelming
of the
basis
evi-
contending
tence
that the district
drug activity,
prosecu-
court erred
dence of his illicit
failing
to sentence
pursuant
perhaps because of RICO’s severe im-
tors —
prisonment
Sentencing
Guidelines because one of
provisions,1
per-
and forfeiture
if,
also
compliance
We
note that it is insufficient
on re-
strict
with Rule 32. See Fernandez
mand,
-Angulo,
rely
the district court
ry:
Guilty
Cir.1979),
denied,
Prosecutorial Discretion and the
395-96
cert.
(1981).
Plea
responsible use of its discretion. Accordingly, the Federal Rules of Evi- particularly The RICO statute seems sus- general dence declare a principle as ceptible “[ejvidenee prosecutorial abuse, given crimes, that its wrongs, of other or acts scope ill-defined, is broad and somewhat prove is not admissible to the of character a penalties Although are severe. person the Sec- conformity order to show action way 404(b). ond Circuit has led in attacking the therewith.” Fed.R.Evid. a sub- As. RICO, of misuse this circuit too has larger acknowl- set the rule that evidence of bad See, edged problem. e.g., the ordinarily United States character is not sup- admissible to Malizia, (2d Cir.1983); 720 F.2d port conduct, an inference of bad the rule Ivic, (2d United States v. barring 64-65 act possesses bad evidence “almost did, however, distinguish require The court spousal the dence of abuse was error. Our failure to probable prosecution, ment of which, issue, cause for however, for reverse on this should not be establish, past judicial as scrutiny cases is interpreted approval as tacit of the admission of 5.; appropriate. Id. at 1300 n. see also United Instead, generally. such evidence it should be Sanchez, States v. Cir. emphasized that the admission of evidence of 1990). Recent, spousal abuse will often be error. en- commendable, tirely public awareness of the 5. Given the liberal abuse of discretion standard wrongfulness spousal abuse means that evi- applicable evidentiary to the decisions of the extremely prejudicial. dence of such acts be court, particular district and the facts of in this case, we do not hold that the admission of evi- for Rule relevant are helps pre- considerations It proportions.”6 constitutional evaluation, they particularly salient are precepts fundamental most serve one evidence, prejudicial the regard to bad act require- the law: system of criminal of our given, the admission is a effect of which be based on punishment that criminal ment the focus of the of which turns into acts, specific prohibited commission criminal. the crime trial from charac- perceived bad not on defendant’s . crime.7 tendency to commit ter pow- charging misuse of the it be "Whether character improper evi- reliance er or some en- Unfortunately, prosecutors —with es- dence, the solution —is problem —and too often the courts8 —are couragement from know the sentially same. Prosecutors rule exceptions to this as tempted to read winning utility such abusive methods result, ought to be As a what the rule itself. conviction; equally aware they need to be relevant the evidence a narrow evaluation caused to our and the harm the unfairness place at that took incidents particular justice convictions are won system when in time broadened into is particular moment keep in mind must manner. Prosecutors lifestyle, of the defendant’s an examination differently than de- they are situated effect, defen- habits character. counsel, responsibility defend whose fense trial, simply is on as criminal dant the limits of that within clients means their Al- specific to a crime. in relation defendant utmost to win a they do their law should evidence, for when relevant though bad act justice prosecutor’s is client case. motive, opportu- demonstrating, example, duty of Accordingly, system. “[t]he intent, inadmissible nity, or nonetheless *16 merely justice, to seek prosecutor is Evi- Rules of Rule of the Federal under 403 Relating to the Standards convict.” ABA prejudice sub- danger if of unfair dence 1.1(e).9 Prosecutor Win- Function of the 3— value, probative stantially outweighs its this overcharging or because of ning a conviction First, safeguard. hardly powerful some a is jury with evidence of de- presenting the anticipat- prejudicial explicitly effect is unfair acts does not bad serve fendant’s extrinsic ed, found under for admissible even evidence justice.10 the ends danger 403; only of unfair when the Rule unacceptable level is the an RICO prejudice Although reaches reverse Robertson’s we barred, prosecutors tend not to explained Judge evidence the reasons conviction for court, been reached. recognize opinion that level has for the when Nelson’s unanimous pro- Second, weighing prejudice supporting versus overwhelming inherently imprecise, finding for no a of harmless is bative value convictions necessitates careful the dis- of the bad acts respect to some matter how conscientious and error with reversing be, precludes calibrate us it cannot from trict court evidence and It unpredict- judgment those counts. adjust court’s on for district measurements however, a emphasized, subjective of different should be sensitivities able and might well Moreover, case a full reversal have of discretion closer jurors. the exercise Future rarely prosecutors faced is over- been warranted. judges this area of district would be well- with similar circumstances appeals. these court of While turned necessary recently Advisory 9. As this court has found notes of Committee 6. 404 Fed.R.Evid. (see Kojayan, (1993). prosecutors States v. United remind Proposed Rules at 228 1972 on 1315, (9th Cir.1993), the desire 1324 eclipse the more should never win a conviction status of transaction- 7. The constitutional serving justice. responsibility important evident in Robin law based model of criminal is 1417, 660, California, 82 S.Ct. 8 370 U.S. son v. 960, Jones, 961 See 10. 1, (1962). Lynch, supra note at See L.Ed.2d 758 denied, (1977), Cir.), reh’g 564 98 cert. 934 1021, 747, denied, 54 L.Ed.2d . U.S. S.Ct (1978); miscarriage justice “It would be States, guilty one were found offense v. United if simply defendant 8. See Huddleston pun (1988); he should be Dowling felt because 99 L.Ed.2d 108 S.Ct. participation other offenses ished U.S. because v. United not on which trial.” he L.Ed.2d 708
advised to focus their attention more careful-
ly prosecuting on the defendant under
charges appropriate crimes, to his
distinguishing legitimate substantive evi-
dence from evidence of bad acts that serves
principally prejudice jurors. America,
UNITED STATES
Plaintiff-Appellee, MARIA, Ortiz
Gilbert SANTA
Defendant-Appellant.
No. 93-10048. Appeals,
United States Court of
Ninth Circuit.
Argued and Submitted Dec. 1993.
Decided Feb.