Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Nov. 2, 1988.
C.D.Cal.
AFFIRMED.
Appeal from the United States District Court for the Central District of California; A. Andrew Hauk, District Judge, Presiding.
Before EUGENE A. WRIGHT, WILLIAM A. NORRIS and WIGGINS, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3.
Appellant Kenneth Hartman Lee appeals his conviction of conspiracy to commit bank larceny and to conceal, store, or dispose of property knowing that it had been taken from a savings and loan, in violation of 18 U.S.C. § 371 (1982), and his conviction of accessory after the fact, in violation of 18 U.S.C. § 3 (1982). Appellant contends that there was insufficient evidence to convict him of either crime; that the district court should have dismissed the conspiracy charge; that the district court erroneously admitted hearsay evidence; that the district court improperly instructed the jury; and that the government's closing argument constituted prosecutorial misconduct. We have jurisdiction under 28 U.S.C. § 1291 (1982). We affirm Appellant's convictions of both crimes.
I.
SUFFICIENCY OF THE EVIDENCE
There is sufficient evidence to support a conviction if, "after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). Appellant contends that no rational trier of fact could have found the essential elements of conspiracy or accessory after the fact.
A. Conspiracy
"The essential elements of a conspiracy are 'an agreement between two or more persons to engage in criminal activity, coupled with one or more overt acts in furtherance of the illegal purpose and the requisite intent necessary to commit the underlying substantive offense.' " United States v. Hodges, 770 F.2d 1475, 1478 (9th Cir.1985) (quoting United States v. Abushi, 682 F.2d 1289, 1293 (9th Cir.1982)). The government concedes that the conspiracy charge against Appellant was premised on the violation of 18 U.S.C. § 2113(c) (1982), which, in relevant part, provides: "Whoever receives, possesses, conceals, stores, barters, sells, or disposes of, any property or money ... knowing the same to have been taken from ... a savings and loan association ... shall be subject to the punishment provided by [18 U.S.C. § 2113(b) (1982) ]." Appellant contends that there is insufficient evidence to convict him of conspiring to violate this statute, reasoning that (1) a "bank larceny" could not have been committed under the facts of this case; (2) there is no proof that the stolen funds were located in a federally insured savings and loan association; and (3) there is no proof that Appellant knew the Kruggerands were derived from proceeds stolen from a savings and loan association.
Appellant's first claim is foreclosed by this court's decision in United States v. Morgan, 805 F.2d 1372 (9th Cir.1986), cert. denied, 480 U.S. 949 (1987), in which we held that Michelle Morgan, Appellant's coconspirator, could be convicted of conspiring to violate section 2113(b) because Steven Bourque, a third coconspirator, had fraudulently convinced an employee of FCA Asset Management ("FCAAM") "to act as his innocent agent to take and carry away money ... from the care, custody, control, and possession of [American Savings & Loan ("ASL") ]." Id. at 1377. The crux of this decision was that ultimately the funds were illegally spirited away from ASL and therefore a bank larceny had occurred within the meaning of the statute. We find unpersuasive Appellant's resurrection of Morgan's argument.
Equally unpersuasive is Appellant's second claim that the government failed to prove that Kaplan's account was located in a federally insured bank. Kip Walker, the FCAAM employee in charge of the Kaplan account, testified that the account was held by ASL. Thus, the parties' stipulation that "American Savings and Loan Association is and was a savings and loan association whose deposits are and were federally insured by the Federal Savings and Loan Insurance Corporation (FSLIC)" is dispositive. Despite Appellant's assertions to the contrary, United States v. Washburn, 758 F.2d 1339 (9th Cir.1985), does not even remotely suggest that the government cannot stipulate to the fact of a savings and loan association's insured status. Cf. Nelson v. United States, 415 F.2d 483, 487 (5th Cir.1969) ("In the instant case, the parties stipulated that the bank was insured by the FDIC."), cert. denied, 396 U.S. 1060 (1970). Appellant's argument that this stipulation is ambiguous regarding ASL's insured status at the time of the larceny is foreclosed by the district court's jury instruction that ASL was "insured ... at the time of the offense alleged in the indictment." Appellant's objection to this instruction is equally unavailing because we believe it was not plain error for the district court to infer, as do we, that the stipulation referred to the date of the larceny.
Appellant's third claim requires us to consider whether there is sufficient evidence that Appellant knew the Kruggerands were purchased from funds stolen from a savings and loan association. The only evidence regarding Appellant's knowledge is derived from Bourque's answer to the prosecutor's question, "What did you tell him about where the coins came from?":
A. Exactly where they came from. They came from Monex. It was Mike Kaplan's money. It was wired to the Farmers & Merchants Bank; that it was all executed by a series of phone calls, that the limo driver successfully picked up and delivered the gold.
It is quite clear that knowledge of a bank's insured status is not an element of the crime of violating section 2113(c). Accordingly, the government need not show that a defendant knew the money was stolen from any particular bank, e.g., Nelson, 415 F.2d at 486; United States v. Licausi, 413 F.2d 1118, 1121 (5th Cir.1969), cert. denied, 396 U.S. 1006 (1970), but only that the money was stolen from a bank, see United States v. Bolin, 423 F.2d 834, 836 (9th Cir.1970) ("A recipient must know that the funds or property he receives were taken from a bank or savings and loan association in violation of § 2113(b)), cert. denied, 398 U.S. 954 (1970); cf. United States v. Johnson, 804 F.2d 1078, 1081 (9th Cir.1981) (one of the essential elements of a § 2113(c) offense is proof that the defendant "received or possessed [money stolen from a federally insured bank] knowing it was stolen"); United States v. Scruggs, 549 F.2d 1097, 1103 (6th Cir.) (one of the "essential elements of a § 2113(c) offense" is "proof that the defendants had knowledge of the stolen character of the property or money at the time they possessed, concealed or disposed of it"), cert. denied, 434 U.S. 824 (1977). If Bourque's testimony is given a broad reading, a rational trier of fact could reasonably infer that Appellant was told the Kaplan account originally resided in a savings and loan association and that the money had been fraudulently transferred to Farmers & Merchants Bank through a series of phone calls. Even if Bourque's testimony is read only literally, a rational trier of fact could conclude that Appellant knew the Kruggerands were purchased from funds fraudulently withdrawn from "a bank," specifically, Farmers & Merchants Bank. We thus reject Appellant's contention that there is insufficient evidence to convict him of the conspiracy count.
B. Accessory After the Fact
An accessory after the fact is one who, "knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment." 18 U.S.C. § 3 (1982). Appellant contends that a rational trier of fact could not find evidence that he knew a crime had been committed or, as alleged in the indictment, that he assisted Bourque and Morgan "in order to hinder and prevent their apprehension for trial and punishment...." We find neither argument persuasive.
As discussed above, a rational trier of fact could conclude that Appellant knew the Kruggerands were purchased from funds stolen by Bourque and Morgan. In addition, a rational trier of fact could conclude that Appellant's evasive answers during the interview with the FBI "hindered" the offenders' "trial or punishment." It is true that the interview occurred two days after Bourque and Morgan were apprehended, but the statute is worded in the disjunctive rather than the conjunctive. Therefore, Appellant can be convicted of violating section 3 without evidence that his conduct also hindered Bourque's and Morgan's apprehension.
Appellant's argument that the evidence is insufficient to convict him of accessory after the fact is premised on the indictment's inartful wording in the conjunctive. The purpose of an indictment, to inform the accused of what he is charged, is normally accomplished by tracking the language of the penal statute. See Hamling v. United States, 418 U.S. 87, 117-18 (1974); United States v. Johnson, 804 F.2d 1078, 1084-85 (9th Cir.1986). The language of the indictment here, although not quoting the statute verbatim, clearly informed Appellant of the charges against him. There is no error in the indictment. Cf. United States v. Christopher, 700 F.2d 1253, 1257 (9th Cir.) ("In construing the language of the indictment courts must be guided by common sense and practicality."), cert. denied, 461 U.S. 960 (1983).
II.
RULE 29 MOTION FOR JUDGMENT OF ACQUITTAL
Count seven of the indictment contains the charge of the substantive violation of section 2113(c). The district court dismissed count seven because of its inartful pleading. Appellant contends that the conspiracy count suffers from the same defect and therefore the district court erred in denying his Rule 29 motion for judgment of acquittal. Appellant's claim presents a question of law reviewed de novo. See United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1453 (9th Cir.) (in a claim that a district court's denial of a motion for judgment of acquittal was erroneous as a matter of law, the court "must affirm the district court if it applied the correct standard of law"),cert. denied, 78 U.S. 1007 (1986).
Again, the purpose of an indictment is to notify the accused of the crime of which he is charged. Ordinarily this purpose is served adequately if the language of the indictment tracks the language of the penal statute. Johnson, 804 F.2d at 1084-85. Here, the language of the indictment was complicated by the fact that the money stolen from ASL was converted to Kruggerands. As noted by this court, however, the fact that funds stolen from a savings and loan association are subsequently converted into a different form does not change their character for purposes of finding a violation of the statute. United States v. Morgan, 805 F.2d 1372, 1378 (9th Cir.1986), cert. denied, 480 U.S. 949 (1987). Although not a model of clarity, the indictment clearly informed Appellant that he was charged with conspiring to conceal Kruggerands that were obtained from funds illegally stolen from a federally insured savings and loan association. There is no error in the language of the conspiracy count of the indictment.
Appellant's reliance on United States v. Carmen, 577 F.2d 556 (9th Cir.1978), for the proposition that the conspiracy count is "legally insufficient" is misplaced. In Carmen we held that a conviction for conspiring to commit a substantive offense must be reversed, even if other illegal objectives of the conspiracy are alleged, if the substantive offense itself is reversed. Id. at 566-68. But we also made clear that our holding was "dependent upon a reversal of a substantive crime conviction on the ground that the applicable count of the indictment failed to state a crime." Id. at 568. That situation is quite unlike the one here where count seven stated a crime, albeit inartfully. Accordingly, we hold that the district court correctly denied Appellant's Rule 29 motion for judgment of acquittal.
III.
HEARSAY EVIDENCE
A district court's ruling on the admission of hearsay evidence over an objection is reviewed for an abuse of discretion. United States v. Cowley, 720 F.2d 1037, 1040 & n. 1 (9th Cir.1983), cert. denied, 465 U.S. 1029 (1984). An otherwise inadmissible declaration of a coconspirator can be introduced into evidence when: (1) "the declaration was in furtherance of the conspiracy"; (2) "it was made during the pendency of the conspiracy"; and (3) "there is independent proof of the existence of the conspiracy and of the connection of the declarant and defendant with it." United States v. Peterson, 549 F.2d 654, 658 (9th Cir.1977). Appellant contends that the conspiracy ended, at the very latest, when Bourque and Morgan were arrested February 27, 1984. Yet the district court permitted Bourque to testify that in one post-arrest conversation Morgan told him that she could not give him his share of coins, still held by Appellant, because Appellant "was being watched." This testimony, Appellant argues, related to events that occurred after the pendency of the conspiracy and therefore were inadmissible.
We disagree. The second objective of the conspiracy was the concealment of the Kruggerands. Unlike the conspiracy involved in Krulewitch v. United States, 336 U.S. 440 (1949), the conspiracy here did not necessarily end at the point Bourque and Morgan were arrested. Cf. Atkins v. United States, 307 F.2d 937, 940 (9th Cir.1962) ("extrajudicial statements made to conceal the conspiracy were not made merely to cover up after the crime had been committed, but were made while appellants were in the process of violating [§ 2113(c) ]"). But even if we agreed with Appellant that the district court erred, we would be obliged to hold the error harmless. Other admissible evidence established that appellant agreed to harbor the Kruggerands and that the FBI questioned Appellant about his involvement. The statement that Appellant "was being watched" thus would not even have startled the jury let alone prejudice their verdict. See United States v. Jarrad, 754 F.2d 1451, 1457 (9th Cir.) (even assuming that defendant preserved his sixth amendment confrontation issue for review, court determined that any alleged error was harmless beyond reasonable doubt because other evidence "overwhelm[ed] whatever incriminating aspects the statements might have had"), cert. denied, 474 U.S. 830 (1985).
IV.
"JEWELL " INSTRUCTION
A district court's formulation of jury instructions is reviewed for an abuse of discretion. United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir.1985). Appellant contends that, under the circumstances, the district court abused its discretion by instructing the jury that "[the element of knowledge for the two offenses] may be satisfied by inferences drawn from proof that a defendant deliberately closed his eyes or her eyes to what would otherwise have been obvious to him or her." Appellant recognizes that this instruction is comparable to the one approved by this court in United States v. Jewell, 532 F.2d 697, 701 (9th Cir.) (en banc) (knowledge could be proven by showing that defendant "made a conscious purpose to avoid learning the truth"),cert. denied, 426 U.S. 951 (1976), but contends that such an instruction is appropriate "only in those comparatively rare cases where ... there are facts that point in the direction of deliberate ignorance," United States v. Murrieta-Bejarano, 552 F.2d 1323, 1325 (9th Cir.1977). In this regard, Appellant contends that his case is not one where there is evidence that "the defendant purposely contrived to avoid learning all of the facts in order to have a defense in the event he was arrested and charged." United States v. Beckett, 724 F.2d 855, 956 (9th Cir.1984). Instead, Appellant argues that the evidence shows that he had no reason to suspect that he was becoming involved in a conspiracy, and therefore he could not have been "aware of a high probability" of its illegality. United States v. Suttiswad, 696 F.2d 645, 652 (9th Cir.1982).
Again, we disagree. The evidence in the record establishes that appellant and Morgan lived with one another at least on weekends and that he knew she suddenly possessed a large amount of cash. Further evidence reveals that Appellant did not even bother asking why Bourque and Morgan wanted him to store approximately $150,000 worth of Kruggerands in a relatively insecure business safe. These facts controvert Appellant's own testimony that he did not know that the Kruggerands were obtained illegally. Taken together, this evidence suggests that Appellant may have purposefully avoided learning the truth in order to retain a lack of knowledge defense. Thus, we believe the jury was properly given a Jewell instruction.
V.
PROSECUTORIAL MISCONDUCT
If a district court is given an opportunity to remedy errors in a prosecutor's closing argument, then the Court of Appeals reviews the district court's curative actions for an abuse of discretion. United States v. Patel, 762 F.2d 784, 794 (9th Cir.1985). "In the absence of an objection by defense counsel," however, "a prosecutor's remarks in closing argument are reviewed only for plain error." United States v. Gwaltney, 790 F.2d 1378, 1383 (9th Cir.1986), cert. denied, 479 U.S. 1104 (1987). Appellant provided the district court with no opportunity to correct the prosecutor's alleged misconduct, and therefore we review for plain error. Under this standard, the critical inquiry is whether the misconduct brings about a "clear miscarriage of justice" or affects "the integrity and reputation of the judicial process." United States v. Gibson, 690 F.2d 697, 703 (9th Cir.1982) (citations omitted), cert. denied, 460 U.S. 1046 (1983).
Appellant cites three types of misconduct in the government's closing argument that he believes require reversal of his convictions. First, Appellant argues that the government's closing argument erroneously introduced evidence not in the record. We have reviewed the record, however, and we fail to see that the government did anything other than argue its version of the evidence. What Appellant deems to be embellishment of the facts we consider to be permissible "hard blows." See United States v. Vaccaro, 816 F.2d 443, 451 (9th Cir.) ("Few if any, of the statements [made by the prosecutor in closing argument] were not justified by the evidence or reasonable inferences drawn from the evidence."), cert. denied, 108 S.Ct. 262 (1987).
Second, Appellant draws the court's attention to United States v. Burse, 531 F.2d 1151 (2d Cir.1976), in which the Court of Appeals for the Second Circuit found reversible prosecutorial misconduct for, inter alia, continually telling "the jury that 'we know' certain testimony 'is true.' " Id. at 1154-55. This type of argument, according to the Burse court, left the jury with "the impression that the government had within its possession evidence of Burse's guilt which had not been given to the jury." Id. at 1155. Appellant argues that the Burse case is indistinguishable from his own, but we are not persuaded. Burse found this type of argument reversible because it compounded a series of other errors. We find no other errors here. In addition, the prosecutor here cited evidence contained in the record to support his assertions that "we know" certain testimony "is true." Thus, the jury could not have been left with an impression that the prosecutor concealed additional evidence of Appellant's guilt. Contrary to Appellant, we do find Burse distinguishable.
Third, Appellant argues that the government improperly vouched for the credibility of its principal witnesses, Bourque, thereby giving the jury a false impression of his honesty. This contention lacks merit. In our circuit, a prosecutor's references to a guilty plea in closing argument are permissible if they are meant to foreshadow a defendant's attack on a witness's credibility. United States v. Halbert, 640 F.2d 1000, 1006 (9th Cir.1981). That purpose was clearly what the prosecutor had in mind in this case.
VI
CONCLUSION
Appellant's convictions are AFFIRMED.