Unpublished Disposition, 908 F.2d 978 (9th Cir. 1988)

MEMORANDUM^** 

Erland "Clay" Wood and Julania Wood ("the Woods") appeal their convictions for: conspiracy to obtain mail by fraud, obtaining mail by fraud or deceit, and fraudulently obtaining mail of another person with an intent to pry into the business affairs of that person. The Woods argue four grounds that would require this court to set aside their convictions. Those grounds are: prosecutorial misconduct, admission of a substantial amount of irrelevant evidence, insufficient evidence of the requisite intent to defraud and improper jury instructions. We affirm the convictions.

BACKGROUND FACTS

In the early 1970's, Julania Wood was married to James Williams. Mr. Williams operated a successful plumbing business with his son, Ronald Williams. The business was incorporated under the name "Williams Enterprises, Inc." and was based in Redwood City, California. Williams Enterprises purchased several other local plumbing companies.

In 1975, Mr. Williams and Julania were divorced. Under the terms of the divorce agreement, Julania gave up all ownership she had in Williams Enterprises, Inc. Shortly after the divorce, Julania married Erland Wood. By the mid-1980's, Julania began to believe that she had been defrauded by her previous husband when the marital property had been divided at divorce. The Woods decided to "take over" Williams Enterprises, Inc.

In order to accomplish that goal, the Woods decided to send a letter to the various plumbing businesses owned by Williams Enterprises. The letter indicated that "a major stockholder" of Williams Enterprises had voted to remove Ronald Williams and his son as officers of the corporation and that the stockholder had placed an "indenture" on the corporation. The letter also informed the businesses that the stockholder was relocating the corporate headquarters to Boise, Idaho. The businesses were instructed to forward all correspondence to an address in Boise. The letter was signed by Julania Wood.

After the letter was sent to the various businesses, Julania Wood filled out a number of change-of-address forms for businesses that were named "Williams Enterprises, Inc." or that had names that were the same as the plumbing businesses purchased by Williams Enterprises. The change-of-address forms covered businesses in Oregon, Idaho, Washington, California and Colorado. The Woods conceded that none of the businesses had authorized Julania Wood to fill out a change-of-address form for the business. The change-of-address forms listed the new business address as Boise, Idaho. The address corresponded to a mail drop box that the Woods had rented. They began receiving the redirected mail of the businesses in November of 1988.

The Woods also took several other steps to prepare for their "takeover." They went to three Boise banks to try to open a corporate account. At one bank they also tried to obtain a $3,000,000 commercial loan. The banks initially refused to open an account because the Woods did not have any corporate documents. However, one bank eventually opened an account for the Woods. The Woods also attempted to open a corporate account at a Boise jewelry store. They approached a car dealer and discussed purchasing several cars for their alleged business. The car dealer refused to sell the cars because the Woods could not provide the corporate documents that were needed to support their credit application. Finally, the Woods deposited into their corporate bank account approximately $11,000 in checks. The Woods had received the checks as part of the redirected mail and had forged the endorsements on the checks.

In November of 1988, both the United States Postal Service and the Boise Police began receiving complaints from businesses that their mail had been redirected. The Postal Service investigated the complaints and identified the Woods as the instigators. The Woods were arrested on November 18, 1988, at their residence in Nampa, Idaho. The investigators found hundreds of pieces of redirected mail in the Woods' residence.

JURISDICTION AND STANDARDS 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 for abuse of discretion a district court's refusal to grant a mistrial. United States v. Yarbrough, 852 F.2d 1522, 1538 (9th Cir.), cert. denied, --- U.S. ----, 109 S. Ct. 171, 102 L. Ed. 2d 140 (1988). We review de novo a district court's decision regarding the admissibility of evidence. United States v. Mundi, 892 F.2d 817, 820 (9th Cir. 1989). However, if a party fails to object to evidence or to statements made by the prosecutor, then we will not disturb the district court's decision unless the error was plain. United States v. Laurins, 857 F.2d 529, 539 (9th Cir. 1988), cert. denied, --- U.S. ----, 109 S. Ct. 3215, 106 L. Ed. 2d 565 (1989) (prosecutor's statements); United States v. Dadanian, 818 F.2d 1443, 1445 (1987) (admitted evidence), mod., 856 F.2d 1391 (9th Cir. 1988).

Finally, we consider the district court's instructions to the jury as a whole to determine whether they were misleading or inadequate to guide the jury in its deliberations. United States v. Marsh, 894 F.2d 1035, 1040 (9th Cir. 1989), cert. denied, --- U.S. ----, 110 S. Ct. 1143, 107 L. Ed. 2d 1048 (1990). A district court need not use the particular language requested by a party. United States v. Soulard, 730 F.2d 1292, 1303 (9th Cir. 1984); United States v. Gering, 716 F.2d 615, 622 (9th Cir. 1983).

DISCUSSION

The Woods argue that the district court should have ordered a mistrial after the prosecutor's opening statement. The Woods claim that they were prejudiced because the prosecutor referred to inadmissible evidence. The Woods' claim is without merit.

A district court should order a mistrial when a prosecutor acts in some way that deprives a defendant of a fair trial. Yarbrough, 852 F.2d at 1539. The prosecutor did nothing in this case to deprive the Woods of a fair trial. The prosecutor referred to several actions taken by the Woods that were included in, or related to, acts listed in the indictment as part of the conspiracy. The prosecutor was free to refer to acts connected to the crime. See Cota v. Eyman, 453 F.2d 691, 694 (9th Cir. 1971), cert. denied, 406 U.S. 949, 92 S. Ct. 2054, 32 L. Ed. 2d 338 (1972) (prosecutor referred several times to conversations between co-defendants about the crime). Furthermore, the record indicates that the prosecutor later presented evidence to the jury that confirmed the remarks in his opening statement. The court did not abuse its discretion when it refused to order a mistrial.

The Woods next claim that there was insufficient evidence to show that they knowingly obtained mail by using fraudulent change-of-address forms in violation of 18 U.S.C. § 1708. The Woods admitted that they submitted change-of-address forms for various businesses and that the businesses did not authorize them to so do. Therefore, the Woods obtained the mail by misrepresenting to the Postal Service that each business wanted to redirect its mail. It is clear that there was sufficient evidence from which a rational juror could conclude that the Woods were guilty of violating section 1708. See United States v. Galindo, 871 F.2d 99, 101 (9th Cir. 1989).

The Woods argue that the district court abused its discretion when it made various evidentiary rulings. The district court properly ruled on various evidentiary matters regarding the "indenture," the proposed automobile purchases, the various bank accounts, the corporate jewelry account and the check returned for insufficient funds. Furthermore, even if the district court improperly admitted some evidence, the Woods have failed to show that the court's errors were anything but harmless. See United States v. Ross, 886 F.2d 264, 267 (9th Cir. 1989), cert. denied, --- U.S. ----, 110 S. Ct. 1818, 108 L. Ed. 2d 947 (1990).

The Woods claim that they were entitled to a new trial because the prosecutor impermissibly commented on the fact that the Woods did not testify at trial. A prosecutor may not comment on the fact that a defendant chose not to testify at trial. United States v. Gray, 876 F.2d 1411, 1416 (9th Cir. 1989), cert. denied, --- U.S. ----, 110 S. Ct. 2168, 109 L. Ed. 2d 497 (1990). We will reverse a defendant's conviction if the prosecutor's statement was "manifestly intended to call attention to the defendant's failure to testify, or [was] of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify." Id. (quoting Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987)); see also United States v. Castillo, 866 F.2d 1071, 1083 (9th Cir. 1988). However, if the prosecutor's remarks "are not extensive and do not stress any inference of guilt from the defendant's silence, and there is no substantive evidence that could have supported an acquittal," then the prosecutor's remarks will be considered harmless error. United States v. Crespo de Llano, 838 F.2d 1006, 1019 (9th Cir. 1987).

In this case, the prosecutor spoke to the jury in closing argument about the fact that he had been careful not to present hearsay evidence. At the end of that discussion, the prosecutor stated: "I suggest to you, by the evidence and the facts you have heard in this case, that most if not all of the statements these defendants have made that are material to this case were a series of lies, distortions and, at best, partial truths." The prosecutor never raised the fact that the Woods did not testify at trial. Nor did the prosecutor stress to the jury that it should infer that the Woods were guilty because they did not testify at trial. Furthermore, there is no evidence that would have supported an acquittal in this case. Under Crespo de Llano, we consider any error possibly made by the prosecutor as harmless.

Finally, the Woods argue that the district court improperly instructed the jury on the definition of "defraud or deceive." In this case, the court instructed the jury that to defraud or deceive "means to make an oral or written statement or representation which is untrue or without authority and known to the defendants to be untrue or without authority...." The court adapted the instruction from the Ninth Circuit Model Jury Instruction for securities fraud. See Manual of Model Criminal Jury Instructions for the Ninth Circuit 9.02 (1985). The court appropriately tailored the instruction in this case to the particular crimes with which the Woods had been charged. The district court did not mislead the jury when it indicated that fraud or deceit could include an unauthorized oral or written statement. Indeed, the instruction focused the jury on the heart of this case.

AFFIRMED.