Unpublished Disposition, 880 F.2d 1324 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 880 F.2d 1324 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Eddie HOLLAND, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.David HELMECY, Defendant-Appellant.

No. 88-1295.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 9, 1989.Decided July 25, 1989.

Before JAMES R. BROWNING, CYNTHIA HOLCOMB HALL and LEAVY, Circuit Judges.


MEMORANDUM* 

We affirm the convictions. Three of the issues raised on appeal are addressed in a published opinion filed herewith. The remaining issues are discussed below.

* Reversal for misjoinder is proper "only if the misjoinder results in actual prejudice because it had substantial and injurious effect or influence in determining the jury's verdict." United States v. Lane, 474 U.S. 438, 449 (1986) (internal quotation omitted). No such prejudice appears on this record.

Since the various counts are based on a single series of transactions in which appellants obtained illicit income by padding payrolls, failed to report that income to the IRS, and attempted to obstruct the prosecution of their conduct, joinder was proper under Federal Rule of Criminal Procedure 8. See United States v. Patterson, 819 F.2d 1495, 1501 (9th Cir. 1987) (joinder of conspiracy and tax counts); United States v. Anderson, 642 F.2d 281, 284-85 (9th Cir. 1981) (same).

Helmecy's claim that the charges reflect two conspiracies as a matter of law is unpersuasive. The evidence indicates that the charges arose out of a single, integral, common course of conduct. "A single conspiracy exists ... where there is one overall agreement to perform various functions to achieve the objectives of the conspiracy. A single conspiracy may include subgroups or subagreements. The evidence need not exclude every hypothesis other than [that] a single conspiracy exists [for joinder to be proper]." Patterson, 819 F.2d at 1502 (internal quotation and citations omitted).

II

Denial of severance is reviewed for abuse of discretion. Id. at 1501. The mere fact a defendant would have had a better chance of acquittal in a separate trial is insufficient to require reversal, " [t]here must be clear, manifest, or undue prejudice to justify severance." Id. at 1502 (internal quotation omitted).

The trial court repeatedly instructed the jury, when the evidence was adduced and at the close of evidence, that evidence relating to Holland's tax offenses was not to be considered against Helmecy. Jurors are presumed to be able to segregate the evidence and charges in an ordinary case. Such instructions are sufficient to "neutralize" the threat of prejudice absent special circumstances not present here. Id. at 1503.

The record demonstrates Helmecy played a role in the "real longshoreman" padding, and that Holland, Helmecy, and Salgado agreed to split the proceeds of all the padding among themselves. Hence the "real longshoreman" evidence was relevant to show Helmecy's unreported income, just as it was admissible to show Holland's unreported income. It would have been admissible against Helmecy under Fed.R.Evid. 404(b) if Helmecy were tried separately; he therefore cannot claim prejudice from its admission in the joint trial. See Patterson, 819 F.2d at 1501; Anderson, 642 F.2d at 284-85.

In any event, if any unfair prejudice resulted from joint trial, it was harmless in light of the admission of the Helmecy-Salgado tape in which Helmecy essentially confessed his role in the payroll-padding scheme. Cf. United States v. Little, 753 F.2d 1420, 1446-47 (9th Cir. 1984) (no prejudice from denial of severance when incriminating admissions in evidence).

III

We reject the contention that the warrant for the search of the union dispatch hall was not supported by probable cause.

The warrant was supported by the affidavit of Special Agent Hitchman, an FBI agent with some twenty years of experience. Agent Hitchman stated that a manager of the Port reported the name "R.E. Couch" had been added to time sheets for three specified days in April 1986 subsequent to the dates on which the work was reported to have been done, and in a different hand than appeared in the remainder of the lists. A Port superintendant reported to an officer of the Yolo County Sheriff's Office that defendants Holland and Helmecy had falsified payrolls. Holland had been overheard agreeing to "take care of" one T. Cooper's need for credit for work time in order to receive vacation pay; and payroll records reflected a subsequent award of vacation pay to Cooper.

The specific allegations of the witnesses served to corroborate each other. Further corroboration of the reports of reputable citizens is not required. United States v. Michaelian, 803 F.2d 1042, 1045-46 (9th Cir. 1986). Even if an innocent explanation of the allegations were conceivable, this would not undermine the existence of probable cause. Illinois v. Gates, 462 U.S. 213, 243 n. 13 (1983); cf. United States v. Sokolow, 109 S. Ct. 1581, 1586 (1989) ("Any one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel. But we think taken together they amount to reasonable suspicion [and justify a Terry stop].") Hitchman's experience and the fact the affidavit was approved by a government attorney also support the probable cause determination. See Michaelian, 803 F.2d at 1045, 1047.1 

III

United States v. Hodges, 770 F.2d 1475, 1479 (9th Cir. 1985), did not bar admission of the Torres evidence of extrinsic crimes under Rule 404(b) since the evidence was relevant to an issue in the case. Cf. Huddleston v. United States, 108 S. Ct. 1496, 1499 (1988) (Rule 404(b) allows use of extrinsic crimes evidence to prove "a material issue other than character"). To convict under 26 U.S.C. § 7206(1), the government was required to prove "a voluntary, intentional violation of a known legal duty." United States v. Bishop, 412 U.S. 346, 360 (1973). The Torres evidence demonstrated Holland's knowledge of his legal duty under the tax law.

The potential unfair prejudice--that the jury might convict Holland because he was guilty of an uncharged incident rather than of the charged payroll-padding and tax evasion--does not substantially outweigh the obvious probative value of the evidence. Cf. United States v. Jenkins, 785 F.2d 1387, 1395-96 (9th Cir. 1986) (no abuse of discretion to admit prior crimes evidence when probative of "intent, knowledge, good faith, and absence of mistake").

Similarly, the "real longshoremen" evidence was relevant to the tax charges because it demonstrated unreported income, see United States v. Marabelles, 724 F.2d 1374, 1380 (9th Cir. 1984). The potential for unfair prejudice from this evidence did not so outweight its probative value that its admission was an abuse of discretion. Cf. Jenkins, 785 F.2d at 1395-96 (evidence of prior bank fraud admissible in prosecution of FHA loan fraud). This is especially true because limiting instructions were given when requested.

IV

There was sufficient evidence to sustain appellants' convictions for conspiracy to obstruct justice under 18 U.S.C. §§ 371, 1503. Ralph Payne testified that Holland attempted to persuade him to testify falsely before the grand jury, the Helmecy-Salgado tape indicates Holland asked Helmecy to contact Salgado, and Salgado testified Helmecy encouraged him to withhold what he knew from the grand jury. The fact Helmecy did contact Salgado after Holland asked him to do so demonstrates the requisite agreement.

This evidence is sufficient, when construed most favorably to the prosecution, to convince a rational jury beyond a reasonable doubt of the defendants' guilt of the charges. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

The fact the jury acquitted Helmecy of the substantive obstruction charge is irrelevant. Review of the conspiracy charge for sufficient evidence is unaffected by the jury's determination of any other count. United States v. Powell, 469 U.S. 57, 67 (1984); United States v. Stozek, 783 F.2d 891, 894 (9th Cir. 1986).

There was also ample evidence to convince a rational jury beyond a reasonable doubt of Helmecy's guilt on the tax counts. Salgado testified that he, Holland, and Helmecy agreed to split the proceeds of the scheme "equally three ways," and that Helmecy paid Salgado in cash. Two other witnesses testified they saw Holland give Helmecy sealed white envelopes on a number of paydays, that the envelopes were quite thick and unlike those used for official Port business, and that unlike paychecks, Holland never entrusted the envelopes to other persons. In addition, a Port security officer testified he often saw Helmecy in possession of large amounts of cash. Helmecy conceded his tax return reported no illicit income. Finally, Helmecy stated in the taped conversation with Salgado: "Remember I said then if anything ever comes out of this, we're in trouble, you know. We were talking (inaudible) trouble with tax evasion."

The evidence against Holland is also sufficient. One longshoreman testified he gave money to Holland, and Holland admitted having cashed checks made out to another longshoreman. A search of Holland's office revealed more than $5700 in cash. A handwriting analyst testified it was Holland who cashed a number of checks made out to real and fictitious longshoremen. Holland does not contend that he reported any of this illicit income in his tax returns.

AFFIRMED.

 *

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

 1

Holland's suggestion that probable cause was lacking because the indictment charged different substantive crimes from those identified in the Hitchman affidavit is unpersuasive. At the time a search warrant is sought, the charging decisions of a grand jury are unknowable. It is sufficient to establish probable cause if the affidavit "contain [s] a recitation of facts which show a nexus to a federal crime." Michaelian, 803 F.2d at 1045