Unpublished Disposition, 861 F.2d 269 (9th Cir. 1988)

MEMORANDUM^** 

Defendant Louis Sogoian appeals his conviction of conspiracy to import and pass counterfeit notes (18 U.S.C. § 371) and two counts of aiding and abetting the utterance of counterfeit notes (18 U.S.C. § 472).

Sogoian does not challenge his extradition to the United States. Instead, Sogoian argues that he should not have been charged in the United States with conspiracy as the doctrine of "Specialty" requires that the fugitive be tried only for an extraditable offense and only for the offense for which he was extradited. United States v. Rauscher, 119 U.S. 407, 430 (1886).

The fugitive may only raise objections that the surrendering country might have to prosecution on a charge other than that for which the fugitive was extradited. United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir.), cert. denied, 479 U.S. 1009 (1986). Because of this, "the protection exists only to the extent that the surrendering country wishes." Id. " [T]he extradited party may be tried for a crime other than that for which he was surrendered if the asylum country consents." Id., (quoting Berenqeur v. Vance, 473 F. Supp. 1195, 1197 (D.D.C. 1979)) (emphasis in original).

The Supreme Court of Sweden considered whether conspiracy could be the basis of an extradition order. The Court found conspiracy to be similar to the Swedish crime of "preparation" to commit counterfeiting. The Swedish Supreme Court found no obstacle to extradition for the conspiracy charge.

The Swedish Government's participation in Sogoian's prosecution in the United States provides additional evidence that Sweden did not object to Sogoian's prosecution for conspiracy. The evidence shows that Sweden consented to Sogoian's prosecution for conspiracy.

In addition to the doctrine of Specialty, Sogoian's extradition must meet the dual criminality requirement: no offense is extraditable unless it is criminal in both countries. Caplan v. Vokes, 649 F.2d 1336, 1343 (9th Cir. 1981). To satisfy the dual criminality requirement, "each element of the offense purportedly committed in a foreign country need not be identical to the elements of a similar offense in the United States. It is enough that the conduct involved is criminal in both countries." In re Russell, 789 F.2d 801, 803 (9th Cir. 1986); see also Kelly v. Griffin, 241 U.S. 6, 14 (1916).

The fact that Sogoian's conduct was charged as conspiracy in the United States and there is no crime known as "conspiracy" in Sweden will not prevent Sogoian's prosecution as long as his conduct is criminal in Sweden and the United States. The Supreme Court of Sweden determined that conspiracy was similar, although not identical, to the crime of "preparation" under the law of Sweden. Sogoian's conduct was criminal in both countries and the dual criminality element is met.

B. Sogoian's Prosecution Under 18 U.S.C. § 472

Sogoian argues that his prosecution under 18 U.S.C. § 472, which is a general statute, was improper as a more specific statute, 18 U.S.C. § 473, would be controlling.

The general rule is stated in United States v. Edmonson : " [w]hen, as here, conduct violates more than one criminal statute the government may generally elect which statute it wishes to charge", 792 F.2d 1492, 1497 (9th Cir. 1986), cert. denied, 107 S. Ct. 892 (1987).

Sogoian relies on Preiser v. Rodriquez, 411 U.S. 475 (1973) and Rusio v. United States, 446 U.S. 398 (1980). In both Preiser and Busic, the court looked to the intent of the legislature in determining which of two applicable statutes should apply. Absent any indication by the legislature that section 473 should apply rather than section 472, the prosecutor is free to choose which of two applicable statutes to charge. Sogoian cites no evidence of a legislative intent to prefer section 473, thus the trial court did not err in denying his objection to sentencing under section 472.

Sogoian's claim that the wiretap evidence was admitted improperly is frivolous. Evidence gathered by foreign agents is excluded "if the foreign authorities actually conducting the search were acting as agents for their American counterparts...." United States v. Rose, 570 F.2d 1358, 1362 (9th Cir. 1978) (quoting United States v. Morrow, 537 F.2d 120, 139 (5th Cir. 1976)), cert. denied, 430 U.S. 956 (1977). Foreign authorities act as agents of the United States when " [f]ederal agents so substantially participated in the raids so as to convert them into joint ventures between the United States and the foreign officials." Rose, 570 F.2d at 1362 (quoting Stonehill v. United States, 405 F.2d 738, 743 (9th Cir. 1968), cert. denied, 395 U.S. 960 (1969)).

There is no indication that the Swedish authorities and the American authorities were in contact with each other in any way, nor is there any evidence of participation by the American authorities in the Swedish wiretaps. The evidence was properly admitted.

Sogoian contends that the district court twice gave an Allen charge, coercing a guilty verdict on count two. Sogoian concedes that the first instruction, given with the initial charge, was not coercive in any way.

The general rule is that "it is reversible error to repeat an Allen charge ... after a jury has reported itself deadlocked and has not itself requested a repetition of the instruction." United States v. Seawell, 550 F.2d 1159, 1163 (9th Cir. 1977).

The rule, however, does not apply where a "mild" Allen instruction is given during the initial charge to the jury. See United States v. Armstrong, 654 F.2d 1328, 1334-35 (9th Cir. 1981), cert. denied, 455 U.S. 926 (1982). The instruction given initially to the jury in Sogoian's case was not an Allen instruction. The second jury instruction was the only Allen instruction given and delivering one Allen instruction cannot be considered coercive as duplicative. United States v. Seawell, 583 F.2d 416, 418 (9th Cir. 1978), cert. denied, 439 U.S. 991 (1978).

The jury was improperly instructed on the expense and time involved in retrying the case. " [T]he expense of trial should not play any part in the jury's important function of determining the guilt or innocence of a criminal defendant." United States v. Penam, 772 F.2d 1449, 1450 (9th Cir. 1985). The trial court should not refer to the cost of retrying a defendant.

The coercive effect of the mention of costs to retry the case, however, may be counterbalanced by other cautionary language in the instruction. "When the portion of the instruction that asks the minority to re-examine its views is counterbalanced by the caution that a juror should not abandon his conscientiously held views, we have generally upheld the instruction as not coercive." Id. at 1451.

In Sogoian's case, the jurors were told not to abandon their personal convictions, to decide the case for themselves, and to reach an agreement without violence to individual judgment. This cautionary language balances the mention of costs sufficiently so that we hold the error to be harmless.

Generally, the sentence imposed is left to the sound discretion of the district court. United States v. Messer, 785 F.2d 832, 834 (9th Cir. 1986). Sentencing that is within statutory limits is generally not reviewable unless there is a constitutional question. See United States v. Tucker, 404 U.S. 443, 447 (1972).

Sogoian was sentenced to 5, 15 and 10 years. These sentences are within the statutory limits.

Sogoian claims that counts two and three involve the same bills and thus his acts are merely multiple parts of a single transaction for which he cannot be sentenced consecutively. Sogoian cites United States v. Palafox, 764 F.2d 558 (9th Cir. 1985) to support his argument.

Palafox states that when, as part of a single transaction, the defendant commits acts "at the same place and at the same time, verdicts of guilty may be returned on both counts but the defendant may be punished on only one." Id. at 560. In Palafox, we stressed that when "each offense is committed at virtually the same time, in the same place, and with the same participants, the punishments should not be compounded." Id. at 562.

In United States v. Palacios, 835 F.2d 230 (9th Cir. 1987), we held that only in cases in which the two offenses were limited to the same time and place would it be improper to impose consecutive sentences. Id. at 234.

Although Sogoian's offenses involved the same counterfeit bills, there were two separate transactions at separate times and locations so that Sogoian's conduct constituted two separate offenses. Although the sentences seem harsh, it was not error to impose consecutive sentences under the reasoning of Palafox and Palacios.

Sogoian argues that the giving of a Pinkerton charge removed the elements of proof necessary to find him guilty of the substantive offense so that the imposition of consecutive sentences allegedly punishes him twice for the same offense.

The instruction provided that if the jury found Sogoian guilty of conspiracy it could also find him guilty of any other count if the substantive offense was committed pursuant to the conspiracy at the time that he was a member of it. Sogoian argues that this Pinkerton instruction removed the required elements which made the offenses separate under Blockburger. The test articulated in Blockburger, however, "is merely a method for ascertaining the congressional intent to impose separate punishment for multiple offenses which arise during the course of a single act or transaction." United States v. Wylie, 625 F.2d 1371, 1381 (9th Cir. 1980), cert. denied, 449 U.S. 1080 (1981).

In Wylie this court approved consecutive sentences for defendants convicted of conspiracy and an underlying offense when a Pinkerton instruction was given. Id. at 1381-82.

In order to decide whether a court can impose multiple sentences the court must look to the punishment authorized by the legislature. Id. at 1381. If the court finds no evidence that the legislature "intended to depart from the general rule that courts can impose separate sentences for the conspiracy to commit an offense and the accomplishment of the substantive offense" consecutive sentences may be imposed. See id. at 1381. There is no evidence here that the legislature intended to depart from the rule allowing consecutive sentences.

Sogoian further argues that this court's decision in Palafox somehow alters this rule. Palafox held that a defendant could not be charged for separate offenses involving a single transaction when the offense involves the same participants at the same place and at the same time. As we have pointed out, this rule does not alter the result in Sogoian's case as his offenses were separated by at least two months, occurred in two different places, and involved different recipients.

AFFIRMED.