Unpublished Disposition, 846 F.2d 1383 (9th Cir. 1986)

MEMORANDUM^* 

Defendant Seymour Pollack appeals from his jury trial conviction of various crimes. He raises several claims of error at trial.

This court reviews the denial of a motion for continuance under the abuse of discretion standard. United States v. Flynt, 756 F.2d 1352, 1357 (9th Cir. 1985) (citing United States v. Hoyos, 573 F.2d 1111, 1114 (9th Cir. 1978)).

We consider four factors when reviewing denials of a motion for a continuance: (1) appellant's diligence in preparing his defense before trial; (2) the likelihood that the continuance would serve a useful purpose; (3) the inconvenience to the court and the opposing party, including its witnesses; and (4) the extent to which the appellant might have suffered harm from the denial of the continuance. United States v. Flynt, 756 F.2d at 1357. These factors must be considered together and the weight given to each one may vary from case to case. Id. at 1359. At a minimum, the appellant must show that he has been prejudiced by the denial of the continuance. Id.

Pollack claims he was prevented from preparing for trial because his right to self-representation was not granted until several days before trial. Although he was not able to proceed pro se until several days before trial, Pollack was not prevented from preparing his own defense. To the contrary, in a hearing held on February 4, 1986, the court repeatedly warned Pollack to prepare his defense for the upcoming May 5, 1986 trial. Despite several warnings from the court, Pollack did nothing.

Pollack sought a continuance to review discovery material, file motions, and interview witnesses. However, the need for the continuance was created by his own lack of diligence in preparing for trial. Pollack cannot be allowed to capitalize on his own failure to prepare for trial.

The government and its witnesses were ready for trial. Some of the witnesses were from out of town. Rescheduling would have inconvenienced the court, the government, and its witnesses.

Pollack claims he was prejudiced by the denial of the continuance because he was unable to review discovery material, file motions and interview witnesses. Pollack does not describe how the outcome of the trial would have been different had he done any of those things. In addition, Pollack has advanced no reason why he could not have accomplished any of them before trial. After considering the four factors in Flynt, we hold that the trial court did not abuse its discretion in denying Pollack's motion for continuance.

The Fifth Amendment prohibits the prosecutor from commenting on the defendant's failure to testify. Griffin v. California, 380 U.S. 609, 615 (1965), Lincoln v. Sunn, 807 F.2d 805 (9th Cir. 1987). A reversal is warranted "where such comment is extensive, where an inference of guilt from silence is stressed to the jury as a basis for conviction, and where there is evidence that could have supported acquittal." Furthermore, it must appear that the comment possibly may have affected the verdict. Lincoln v. Sunn, 807 F.2d at 809 (quoting United Stated v. Kennedy, 714 F.2d 968, 976 (9th Cir. 1983); Anderson v. Nelson, 390 U.S. 523 (1968) (per curiam)). On the other hand, a court will not reverse when the prosecutor's comment is a "single, isolated incident, does not stress an inference of guilt from silence as a basis of conviction and is followed by curative instructions." Id. (quoting United States v. Soulard, 730 F.2d 1292, 1307 (9th Cir. 1984)).

In his closing argument, the prosecutor commented on Pollack's failure to testify.¹  Pollack objected to the prosecutor's remarks and moved for a mistrial. The court denied the motion and instructed the jury that Pollack was not obligated to take the stand.² 

In this case, the prosecutor's comment was improper. However, taken in the context of the entire trial and Pollack's conduct, the prosecutor's remarks did not constitute reversible error. Pollack immediately objected to the remark and the trial judge quickly responded with curative instructions to the jury. The prosecutor's comment on Pollack's failure to testify was an isolated incident not intended to stress an inference of guilt. Rather, it was a response to Pollack's improper testimonial statements during closing argument. While the prosecutor's comment should not be condoned, it did not affect the verdict in this case. The evidence against Pollack was overwhelming and uncontradicted.

Pollack further contends that the prosecutor, in his closing argument, improperly commented about uncharged criminal conduct on Pollack's part. His contention is without merit.

A defendant is entitled to a judgment of acquittal pursuant to Fed. R. Crim. P. 29(a) if the evidence produced against him is insufficient to sustain a conviction. Pollack moved for a judgment of acquittal, but not on the grounds of insufficient evidence. Instead, Pollack contends that because he had previously been convicted of conspiracy in the Eastern District of Pennsylvania, United States v. Feinman, et al., Cr. No. 80-00757 and in the Middle District of Florida, United States v. Murgo, No. 82-67-Orl-Cr-R, the government was barred by the double jeopardy clause from prosecuting him for conspiracy in this action. Because Pollack brought his motion on constitutional grounds, we review his constitutional claim de novo. United States v. Appawoo, 553 F.2d 1242 (10th Cir. 1977).

In order to sustain a double jeopardy claim, the appellant must establish that the two conspiracies charged are the same. United States v. Bendis, 681 F.2d 561, 564 (9th Cir. 1981). The court in Bendis applied a "factor analysis" to determine whether two conspiracy counts under one statute charge the same offense.

We compare [ ] the differences in the periods of time covered by the alleged conspiracies, the places where the conspiracies were alleged to occur, the persons charged as co-conspirators, the overt acts alleged to have been committed, and the statutes alleged to have been violated.

Id. at 565.

In this case, Pollack has not established that the conspiracies are the same. The Murgo conspiracy involved a scheme in which Murgo and his associates found people seeking financing for various projects. Murgo and his associates collected advance fees and had phony financial companies promise to finance the project. Once they had collected the advance fees, they had no intention of financing the project. The only similarities between the Murgo conspiracy and the present conspiracy are the time frame and the fact that Pollack and Stephen Sarault were both co-conspirators in both cases. However, fourteen people were charged in the Murgo conspiracy and other than Pollack and Sarault, the co-conspirators are different in both cases. The overt acts were different in each conspiracy. The Murgo conspiracy is entirely different from the conspiracy in the present case.

In the Feinman conspiracy, the defendants used phony assets to support the issuance of construction bonds and financial guarantees. Although the modus operandi and time frame are similar to the present conspiracy, the co-conspirators, the victim and the location of the conspiracy are completely different.

The Murgo and Feinman conspiracies are sufficiently different from the conspiracy in the present case to prevent Pollack from succeeding on his double jeopardy claim. The district court's failure to grant a judgment of acquittal was not erroneous.

Pollack further contends that the government withheld material from him in violation of 18 U.S.C. § 3500 (the Jencks Act) and Brady v. Maryland, 373 U.S. 83 (1963). The Jencks Act does not require the government to produce statements of its witnesses that relate to the witness's testimony until after the witness has testified on direct examination in the trial of the case. The week before the trial, the government invited Pollack and his counsel to examine all government documents and exhibits. Pollack's contentions are raised in a conclusory fashion, unsupported by the record, and without merit.

Finally, Pollack's contention that he was denied due process because he was forced to attend full-day trial sessions despite severe medical problems is unsupported and without merit.

AFFIRMED.