Unpublished Disposition, 867 F.2d 614 (9th Cir. 1986)

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US Court of Appeals for the Ninth Circuit - 867 F.2d 614 (9th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,v.Richard Stuart WALLSTRUM, Defendant-Appellant.

No. 88-1232.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 10, 1989.Decided Jan. 30, 1989.

Before SKOPIL, FARRIS and CYNTHIA HOLCOMB HALL, Circuit Judges.


MEMORANDUM* 

Richard Wallstrum brings this timely interlocutory appeal from the denial of his motions to dismiss one count of his indictment on double jeopardy grounds and to dismiss the entire indictment on the grounds of prosecutorial misconduct and grand jury abuse. We have jurisdiction to decide both issues. Abney v. United States, 431 U.S. 651, 655-62 (1987); United States v. Dederich, 825 F.2d 1317, 1319-21 (9th Cir. 1987). We affirm. We lack jurisdiction, however, to decide Wallstrum's pretrial appeal of the denial of his alternative motion for grand jury discovery. United States v. Eccles, 850 F.2d 1357, 1364 (9th Cir. 1988).

* A federal investigation that culminated in the pending indictment uncovered evidence that Wallstrum and others imported cocaine into California. The government maintains that evidence at trial will show that Wallstrum's organization was responsible for importing several million dollars worth of cocaine, primarily from Bolivia, between 1974 and 1986.

In the spring of 1984, Patrick Ebert introduced Patrick Hamilton, Wallstrum's co-defendant in this case, to a man known to Ebert as "Lucas," for the purpose of Lucas supplying Hamilton and Wallstrum with cocaine from Colombia. In April and May of 1984, Lucas supplied several kilograms of cocaine to Hamilton and Wallstrum, via Ebert and a pilot named Mitchell. Shortly thereafter, Mitchell and Lucas had a falling out and the group (Wallstrum, Hamilton, Ebert and Mitchell) stopped using Lucas as a supplier.

Later that year, Wallstrum and Hamilton introduced Mitchell and Ebert to another cocaine trafficking organization involving John Brady. In December of 1984 and January of 1985, Wallstrum, Hamilton, Ebert, Mitchell, and others, in conjunction with Brady, were involved in two efforts to smuggle cocaine from Colombia to Florida for ultimate distribution, in part, in the Northern District of California. The first operation was successful. The second operation, however, failed and ultimately led to Wallstrum's Florida conviction.

On May 1, 1986, Wallstrum was indicted in the Middle District of Florida on various charges involving cocaine trafficking. Pursuant to a plea agreement in December 1986, Wallstrum pled guilty to conspiracy to distribute and possess with intent to distribute cocaine, and to other charges.

II

In the count one of the California indictment, Wallstrum is charged with conspiracy to possess with intent to distribute cocaine. He claims the pending conspiracy charge embraces the same conspiracy charged in Florida. To sustain his double jeopardy claim, Wallstrum must show that the California prosecution under count one is "indistinguishable in law and in fact" from the Florida conspiracy charge. See United States v. Vaughan, 715 F.2d 1373, 1376 (9th Cir. 1983).

We have adopted a "factor analysis" to determine whether two conspiracy counts charge the same offense and thereby place a defendant in double jeopardy. United States v. Bendis, 681 F.2d 561, 565 (9th Cir. 1981), cert. denied, 459 U.S. 973 (1982)). Using this analysis 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. (quoting United States v. Mayo, 646 F.2d 369, 372 (9th Cir.) (per curiam), cert. denied, 454 U.S. 1127 (1981)).

The first factor we consider is time. In Florida, the indictment charged a conspiracy beginning in November 1984 and continuing until January of 1985. The California indictment charges a conspiracy beginning in 1974 and continuing to about April 1986. The Florida time span is entirely included within the California time span. The Florida conspiracy, however, began ten years after the California conspiracy was underway. The fact that the two conspiracies overlap in time does not prove that there was only one conspiracy. See United States v. Thomas, 759 F.2d 659, 667 (8th Cir. 1985).

The second factor to consider is location. Although it is true that Wallstrum conspired to import cocaine into Florida with the intent to distribute to California, our analysis does not stop here. Different sources of supply and different centers of control were involved in each case. The California importation and distribution scheme was primarily centered in Northern California. There is no evidence that the California conspirators ever met in Florida. The Florida conspiracy was centered in Florida, with almost all of the conspiratorial activity taking place there, except for a few meetings in the Northern District of California.

The Florida conspiracy involved the importation of cocaine from Colombia via a source of supply named Brady. The California conspiracy on the other hand, received its cocaine primarily from Pedro and Chi Chi Suarez in Bolivia and, in April and May of 1984, from Colombia via Lucas. These operations were unconnected to the Brady organization. It thus appears there was very little overlap in the locations of the conspiracies.

The third factor to consider is the identity of the members of each conspiracy. The only two co-conspirators common to both the Florida and the California indictments are Wallstrum and Hamilton. While both the Florida and California groups included Wallstrum, Hamilton and, for a time, Ebert and Mitchell, the two groups did not share numerous members. In this case, nine additional men have been identified as being involved in the California conspiracy. Yet none of the additional co-defendants identified in this case had any involvement in the Florida conspiracy.

Moreover, the central figures in each case were different. In the California operation, the "kingpin" appears to be Wallstrum. The key people in the Florida operation were Ebert, Mitchell and Hamilton. Wallstrum was merely a peripheral player in the Florida operation. Of the some 700 kilograms of cocaine imported into Florida, only 30 kilograms were diverted to Wallstrum in California.

Further, the involvement of Mitchell and Ebert was different in the two cases. In the instant case, Lucas delivered the cocaine to Ebert who later delivered to Wallstrum and co-defendant Hamilton. In the Florida case, Brady and Zambrano delivered the cocaine to Wallstrum, Hamilton, Mitchell, and Ebert. Lucas played no role in the Florida case.

The fourth factor to consider involves the overt acts of the two conspiracies. The Florida indictment alleged no overt acts, but Wallstrum's written plea agreement describes the activity relied upon to prove the charges. The instant indictment alleges 56 overt acts for count one, none of which refer to any of the activities set out in Wallstrum's plea agreement. Moreover, the Florida conspiracy utilized a Florida point of entry for large amounts of cocaine. In contrast, the California conspiracy, in addition to obtaining cocaine primarily from Bolivia, utilized points of entry outside of Florida.

The last factor is the specific offenses charged. Both indictments were brought under the same statute, 21 U.S.C. § 846. The fact that both indictments charge the same statutory violations is not controlling. See United States v. Guzman, 852 F.2d 1117, 1121 (9th Cir. 1988). It is possible to have two different conspiracies to commit exactly the same type of crime especially where, as here, different means were employed to achieve similar ends. See Thomas, 759 F.2d at 666. Although the end purpose was to import and distribute cocaine, the means used to achieve this were different in each case. The Florida group imported large quantities of cocaine aboard private aircraft from Colombia into Florida. In contrast, the California conspirators allegedly imported smaller amounts of cocaine from Bolivia and Colombia by utilizing both commercial and private aircraft to fly to locations in the United States other than Florida.

No single factor in the above analysis controls the determination whether there was a single conspiracy. See Bendis, 681 F.2d at 568. After analyzing all of the factors, however, we conclude that the California and Florida conspiracies are distinct and that Wallstrum may be prosecuted on both conspiracy charges. The district court properly declined to dismiss count one of the California indictment. No evidentiary hearing was required.

III

The facts relevant to Wallstrum's motion to dismiss the indictment on the grounds of prosecutorial misconduct and grand jury abuse are simply stated. The grand jury heard testimony from Wallstrum's then-estranged wife, Cassandra Wallstrum, who was also involved in drug trafficking activities. As the district court found, Ms. Wallstrum was fully advised and admonished, prior to testifying, regarding both the spousal privilege and the confidential marital communications privilege. She waived her spousal privilege before the grand jury and acknowledged that she understood the limits that the confidential marital communications privilege imposed upon her testimony.

Although courts have the power to dismiss an indictment either on due process grounds or under inherent supervisory power, that power is exercised sparingly. United States v. Benjamin, 852 F.2d 413, 415-16 (9th Cir. 1988) (citing United States v. Busher, 817 F.2d 1409, 1411 (9th Cir. 1987)). Defendant must show flagrant misconduct by the prosecutor which deceived the grand jury or substantially impaired its ability to act independently. Id. at 416. Dismissal for nonconstitutional errors such as those alleged here, moreover is proper only if the error was prejudicial to the defendant. See Bank of Nova Scotia v. United States, 108 S. Ct. 2369, 2374 (1988) (dismissal is proper only upon showing that "the violation substantially influenced the grand jury's decision to indict or there is a 'grave doubt' that the decision to indict was free from the substantial influence of such violations").

Wallstrum first contends that the government engaged in misconduct warranting dismissal of the indictment, by allowing Cassandra Wallstrum to testify about matters protected by his confidential marital communications privilege. As the district court held, some of the evidence the government presented to the grand jury through Ms. Wallstrum may have been obtained in violation of Wallstrum's privilege. The district court also concluded, however, that presentation of this privileged testimony was not sufficient to establish "outrageous misconduct" by the government, and that Wallstrum did not make even a prima facie showing that the evidence presented to the grand jury would be insufficient to sustain the indictment without Ms. Wallstrum's disclosure of privileged information. In other words, the district court was of the view that Wallstrum was not prejudiced by the prosecutor's conduct.

In In re Grand Jury Investigation of Hugle, 754 F.2d 863 (9th Cir. 1985), we stated that the common law privilege protecting confidential marital communications applies to proceedings before the grand jury, but also acknowledged both the need for grand jury secrecy and the limitations on the courts' authority to control the grand jury processes. Id. at 864-65. Because the government there demonstrated a "substantial disregard" for the marital privilege implicated, we held that judicial intervention and supervision was appropriate. Id. at 865-66.

Here, the government did not disregard Wallstrum's privilege. Recognizing that the marital privileges might be implicated by Ms. Wallstrum's testimony, the prosecution took steps to avoid any improper disclosures by thoroughly advising and admonishing the witness regarding both the spousal and confidential marital communications privileges. We are satisfied by the record that the prosecution was sufficiently careful in its attempt to accommodate the legitimate marital privileges of the witness and the non-witness spouses alike. We agree with the district court, moreover, that the government did not engage in flagrant or deceptive misconduct so as to warrant dismissal of the indictment. Finally, we agree with the district court's conclusion that Wallstrum was not prejudiced by the presentation of privileged testimony, if any.

Wallstrum next contends that the grand jury process was abused because the government affirmatively misrepresented or withheld exculpatory evidence regarding certain extortion charges contained in the indictment. Wallstrum argues that, in order to establish the "extension of credit" element of the extortion offenses charged under 18 U.S.C. § 894 (1982), the government misled the grand jury into thinking that certain money he sought to "retrieve" in the alleged extortion scheme had been "loaned" by him to Kevin Heinhold. Wallstrum maintains that, in fact, Heinhold had stolen the money Wallstrum had "invested" in Heinhold's firm.

Wallstrum offered no witnesses who would have testified that the money was stolen and not loaned. He has not made any showing, moreover, that the government prevented the grand jury from hearing or otherwise withheld testimony by any such witnesses. Further, even if Wallstrum had made or could make such a showing, the prosecutor had no duty to present exculpatory evidence to the grand jury. See United States v. Fritz, 852 F.2d 1175, 1178 (9th Cir. 1988). Wallstrum has simply failed to show any misconduct by the prosecution with respect to its presentation of evidence to support to the extortion offenses charged in the indictment.

The judgment of the district court is AFFIRMED and the case is REMANDED for further proceedings. In the interests of expediting decision in this case, the mandate will issue forthwith. Fed. R. App. P. 2.

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3