Unpublished Disposition, 904 F.2d 41 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 904 F.2d 41 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Jerome Curtis ASHMANN, Defendant-Appellant.

No. 89-10448.

United States Court of Appeals, Ninth Circuit.

Submitted May 18, 1990.* Decided June 5, 1990.

Before WILLIAM A. TANG, NORRIS and FERNANDEZ, Circuit Judges.


MEMORANDUM** 

Jerome Curtis Ashmann ("Ashmann") appeals his conviction, following a jury trial, for threatening to murder Attorney General Edwin Meese and other federal employees (18 U.S.C. § 115) and carrying firearms while making threats on the President and Vice President of the United States and other federal employees (18 U.S.C. § 924(c)). We affirm.

BACKGROUND FACTS

On September 26, 1988, Ashmann went to the Federal Courthouse in Phoenix, Arizona in order to make a complaint involving a domestic dispute. He spoke with Mark Aspey, an Assistant United States Attorney, who informed him that such a claim could only be handled through private action. Ashmann left irritated.

Two weeks later, on October 10, 1988, Ashmann returned to the Federal Courthouse. October 10th was Columbus day so the courthouse was closed. Ashmann nevertheless parked his car across the street from the building. Bart Chapman ("Chapman"), a private courier, parked his car in front of Ashmann's truck and as he was leaving his car, Ashmann approached him. Ashmann asked Chapman if Chapman was a federal employee and if he knew of any way to get into the federal building. Chapman indicated that he was not and did not.

As the conversation continued, the two men sat down in between their two vehicles. Ashmann told Chapman that he wanted to get into the building or was waiting for people to come out of the building because a government agency had double-crossed him and as a consequence, Ashmann's children were missing. He stated that he had come "to wait for these people to come out and that he was going to kill them." Ashmann never brandished a firearm but did motion to his truck, which, it was later discovered, contained a loaded sawed off shotgun, a fully loaded six cylinder 22 caliber pistol and an unloaded derringer. The police also determined that Ashmann had taped three shotgun shells to his leg.

Chapman testified that during the conversation, Ashmann specifically mentioned two federal employees that he was waiting to kill. However, Chapman was unable to recall anything other than the fact that one of them was name "Mac something."1  Chapman also stated that Ashmann discussed Oliver North, Edwin Meese, Vice President Bush and President Reagan. Ashmann indicated that he thought that they were crooked and that he ought to shoot them. In addition, Chapman testified that he thought Ashmann mentioned that he was upset with the CIA or the FBI or some government agency.

Chapman ended the conversation after approximately fifteen minutes indicating that he had to get back to work. Chapman subsequently proceeded to the Transamerican building and informed the office manager, who in turn informed the building security officer of Ashmann's threats.

The security officer subsequently located Ashmann and followed him to the parking garage across the street from the federal building. The security officer did not confront Ashmann at that time because Ashmann had a three-foot "pry bar" that he repeatedly hit against the ground and the officer was unarmed.

The officer then notified the Phoenix police who arrested Ashmann without incident. While conducting a search of the vehicle, the police found the previously mentioned guns and an address book that contained the telephone numbers of various federal officials including the numbers for the FBI, the executive offices of the President and the U.S. Attorney's office.

Ashmann was subsequently charged with threatening the President (Count I), threatening federal officers (Count II), and carrying a firearm during a crime of violence (Count III). Ashmann was tried on all counts and convicted on Counts II and III. He was sentenced on August 28, 1989 and filed a timely appeal on September 6, 1989.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review the sufficiency of the indictment de novo. United States v. Tuohey, 867 F.2d 534, 536 (9th Cir. 1989). We examine a challenge to the sufficiency of the evidence to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Adler, 879 F.2d 491, 495 (9th Cir. 1988) (emphasis in original).

DISCUSSION

Ashmann raises for the first time on appeal several challenges to the sufficiency of Count II of the indictment. A facial challenge to an indictment must be raised prior to trial. Fed. R. Crim. P. 12(b) (2). Failure to do so results in a waiver of that challenge. United States v. Gordon, 844 F.2d 1397, 1400 (9th Cir. 1988). We hold that Ashmann's failure to object to the sufficiency of the indictment at any time prior to the trial precludes him from raising the issue on appeal.

Ashmann also contends that the indictment was duplicitous because it named four categories of targets, and listed a series of different crimes (e.g. assault, kidnap, murder). To the extent that Ashmann's challenge is a facial challenge to the indictment itself, he waived his right to object by failing to object prior to trial. See Gordon, 844 F.2d at 1400.

To the extent that it is a challenge claiming a violation of his Sixth Amendment right to an unanimous jury verdict, Ashmann's has not waived his right to appeal. Ashmann contends that since the jury could have found him guilty without all twelve jury members agreeing upon the individual whom Ashmann actually threatened, the indictment violated his Sixth Amendment right to a unanimous jury verdict. He argues that the court's general unanimity instruction was insufficient to ensure that the jury members agreed upon the target of Ashmann's threat.

Ashmann failed to request a specific unanimity instruction. "Under these circumstances, we review the failure to give a specific unanimity instruction only for plain error.... 'Plain error' will be found only if the error was 'highly prejudicial' and there was a 'high probability that the error materially affected the verdict.' " United States v. Anguiano, 873 F.2d 1314, 1319 (9th Cir.), cert. denied, --- U.S. ----, 110 S. Ct. 416, 107 L. Ed. 2d. 381 (1989). We hold that the facts of this case do not support a finding of plain error.

We further find an insufficient basis for a claim of ineffective assistance of counsel on the record before us. Ashmann's claim is therefore more properly raised in a collateral habeas corpus proceeding pursuant to 28 U.S.C. § 2255. See United States v. Kazni, 576 F.2d 238, 242 (9th Cir. 1978).

We agree with the district court that the admission of evidence regarding the range of the sawed off shotgun found in the cab of Ashmann's truck, while admittedly prejudicial, was also highly probative in evaluating Ashmann's contentions that the guns were used for purely recreational reasons. The district court did not abuse its discretion in ruling that the probative value is not outweighed by the danger of unfair prejudice.

Finally, we hold that there was sufficient evidence upon which the jury could have found that Ashmann threatened to assault, kidnap, or murder one of the four enumerated groups of federal employees with intent to impede, intimidate, interfere with, or retaliate against that official.

The government presented evidence that the defendant told Chapman that he planned to kill federal officials. He made these threats while he had three bullets taped to his leg and while in close proximity to his car which contained firearms. His motive for doing so was that he was going to pay them back for separating his family.

Viewing the evidence in the light most favorable to upholding the verdict, a reasonable jury could have concluded that Ashmann's actions constituted a violation of section 115.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4

 **

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

At the time of the incident, the U.S. Attorney was Stephen McNamee