Unpublished Disposition, 879 F.2d 866 (9th Cir. 1989)

MEMORANDUM^** 

Howard F. Wilkins appeals from the judgment of conviction for bank fraud, bankruptcy fraud, and perjury. Wilkins seeks reversal on the following grounds:

One. The district court erred in placing the burden on the appellant to present evidence of the reasons for the government's delay in seeking an indictment.

Two. The district court erred in refusing to give Wilkins' proposed instructions on good faith including the effect of reliance on the advice of counsel.

Three. The district court abused its discretion in admitting the testimony of a witness over objection that the ruling violated the attorney-client privilege.

Four. The evidence was insufficient to show that Wilkins misrepresented the value of certain items set forth in his loan application.

Five. The district court erred in denying Wilkins' motion to dismiss count 4 as multiplicious.

We conclude that none of these contentions is meritorious. Accordingly, we affirm.

PRE-INDICTMENT DELAY

Wilkins argues that the district court erred in stating that a defendant has the burden of producing evidence of the "rationale of the government for [preindictment] delay, either culpable or otherwise." We agree. A defendant does not have the burden of producing evidence of the government's excuse for pre-indictment delay. We review the denial of a motion to dismiss for pre-indictment delay for abuse of discretion. United States v. Wallace, 848 F.2d 1464, 1468 (9th Cir. 1988).

A defendant who seeks dismissal of the action because of pre-indictment delay has the burden of producing evidence to show that he has suffered "actual prejudice." United States v. Automated Medical Laboratories, Inc., 770 F.2d 399, 403-404 (9th Cir. 1985). If the requirement of showing actual prejudice is met by the defendant, the burden of producing evidence of the reasons for the delay shifts to the government. Id. at 403-404. If the defendant fails to present proof of actual prejudice, the motion must be denied, without considering "the reasons for and the length of the delay." Wallace, 848 F.2d at 1470.

Wilkins failed to present any evidence of actual prejudice resulting from the delay. We may sustain the judgment of a district court on any basis that finds support in the record. Bowen v. United States Parole Commission, 805 F.2d 885, 887 (9th Cir. 1986) (citation omitted). Because actual prejudice was not shown, the district court's mistaken notion that Wilkins had a duty to produce evidence of the reasons for the delay was harmless error.

ALLEGED INSTRUCTIONAL ERROR

Wilkins argues that the district court erred in rejecting his proposed instruction on the defense of good faith reliance on the advice of counsel. Wilkins asserts that the court's instructions failed to inform the jury that "appellant was entitled to rely on the advice of counsel even if the advice was an incorrect statement of the law." Brief for Appellant at 24. Wilkins also contends that it was error to refuse his separate "general good faith instruction" which would have advised the jury that if "appellant acted in good faith and believed he was acting properly, they should find him not guilty." Id. at 25.

We review the denial of a proposed instruction independently, without deference to the district court's ruling. United States v. Wagner, 834 F.2d 1474, 1486 (9th Cir. 1987). The adequacy of jury instructions is determined by examining them as a whole. United States v. Hayes, 794 F.2d 1348, 1351 (9th Cir. 1986). It is not error to refuse a proposed instruction if the court in its charge to the jury adequately discussed the same legal principles. United States v. Ibarra-Alcarez, 830 F.2d 968, 973 (9th Cir. 1987).

The district court instructed the jury on the defense of good faith reliance on the advice of counsel. The jury was properly instructed that reliance on the advice of counsel is a defense if "in good faith he honestly believed such advice, relying upon it and believing it to be correct." Contrary to Wilkins' contention, the court's instructions adequately informed the jury that it is a defense to rely on erroneous legal advice. The court also informed the jury in the same instruction that it must determine from the evidence if "the defendant acted wilfully and with knowledge." This instruction, when considered along with those covering the elements of each charged offense and the government's burden of proving guilt beyond a reasonable doubt, adequately admonished the jury that any evidence showing that Wilkins did not act wilfully on such knowledge that he was violating the law was a defense. Wilkins has failed to demonstrate that the failure of the district court's rejection of Wilkin's "general good faith instruction" was prejudicial error.

ALLEGED IMPROPER ADMISSION OF ATTORNEY-CLIENT COMMUNICATION

Wilkins contends that the district court abused its discretion in admitting, over objection, the testimony of attorney C. Louis Crowder in violation of the attorney-client privilege. Crowder testified at trial that he sent letters to the purchaser of a building exercising a right of redemption. We review a district court's rulings on the admission of evidence for abuse of discretion. United States v. Gwaltney, 790 F.2d 1378, 1382 (9th Cir. 1986).

The district court conducted an evidentiary hearing on Wilkins' motion to exclude Crowder's testimony as relating to a privileged communication. Crowder testified that he

was acting as the individual trying to exercise an option on Mr. Wilkins' behalf and open an escrow....

I had not intended to act as the attorney during the transaction. I was acting as a principal in trying to buy the building from Mr. Wilkins....

I think that by signing, 'attorney at law,' to try to get a title officer to act, was my intent.

Crowder further testified that he was never hired as an attorney by the defendant "so far as this building is concerned." The district court overruled Wilkins' objection to Crowder's testimony. The court found that there was no existing attorney-client relationship. The court stated:

[w]hether Mr. Crowder had the right to sign Exhibit 159 in the fashion he did is not an issue that, it seems to me, is before me now. The clear evidence is that there was no such attorney-client relationship.

The district court's factual finding that no attorney-client relationship existed is not clearly erroneous. The evidence shows that Crowder was not acting as Wilkins' attorney at the time he signed the documents. Wilkins has failed to demonstrate that the attorney-client privilege is applicable to Crowder's testimony.

Wilkins also seeks a remand so that the district court may conduct a hearing to determine whether any privileged communications were disclosed during the government's pretrial interrogation of Crowder. The record reflects that the only product of the government's questioning of Crowder exploited at trial is the letters that were sent to third persons regarding the right of redemption. Wilkins has failed to make a showing that any derivative evidence was obtained from Crowder. The district court did not abuse its discretion in admitting Crowder's testimony or in denying an evidentiary hearing regarding alleged derivative evidence.

ALLEGED INSUFFICIENCY OF THE EVIDENCE TO SUPPORT COUNT 2

Wilkins argues that the evidence was not sufficient to show that he overinflated the value of his automobiles, artwork, and other assets listed in his loan application. Wilkins does not attack the sufficiency of the evidence that he misrepresented the value of "Other Securities" and "Real Estate and Buildings" in the application. Wilkins contends, however, that if there was insufficient evidence for any of these items to go to the jury, the judgment of conviction on count 2 must be reversed "because it is impossible to know if the jury relied on that item in convicting appellant on this count." Brief for Appellant at 34.

We review the record where insufficiency of the evidence is claimed in the light most favorable to the government to determine whether 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, 318-19 (1979); United States v. Marabelles, 724 F.2d 1374, 1377 (9th Cir. 1984).

The record shows that Wilkins misrepresented the title to and value of the automobiles, the paintings, and his assets. Evidence was presented that would support an inference that (1) automobiles were the asset of a corporation, (2) Wilkins did not own the paintings that were listed, and (3) the oil drilling company was bankrupt. No error was committed in admitting evidence of Wilkins' misrepresentation of these items on his loan application.

ALLEGED MULTIPLICITY OF COUNTS

Wilkins was convicted of bankruptcy fraud in counts 3 and 4. In count 3, Wilkins was accused of concealing the fact that he had a right of redemption concerning property located at 41 East Thomas Road. In count 4 he was accused of concealing the fact that he had transferred title to this property to a trust. At the close of the government's case, Wilkins moved to dismiss count 4 as multiplicious to the crime charged in count 3.

Wilkins contends that counts 3 and 4 involve the same conduct. We review independently and non-deferentially the question whether the conduct alleged on two separate counts is the same. See Tornay v. United States, 840 F.2d 1424, 1426 (9th Cir. 1988) (mixed questions of law and fact are reviewed independently). Wilkins asserts that counts 3 and 4 charged him with concealing and disclosing precisely the same asset. We disagree. The record shows Wilkins concealed separate facts. Wilkins concealed the fact that he sold an asset within the preceding year. He also concealed the fact that he had retained the right to redeem the same property for approximately $90,000.00 under market value. Each of these discrete facts would clearly be material to a creditor. Accordingly, the district court did not err in denying the motion to dismiss count 4.

AFFIRMED.