Unpublished Disposition, 914 F.2d 1497 (9th Cir. 1990)

MEMORANDUM^* 

Appellants, leaders in a political organization known as the Committee of the States, were convicted of mailing threatening communications through the U.S. mails, 18 U.S.C. § 876, of attempt to interfere with the administration of the Internal Revenue laws, 26 U.S.C. § 7212(a), and of conspiracy to commit, 18 U.S.C. § 371, and aiding and abetting, 18 U.S.C. § 2, those crimes. Appellants raise on appeal several criminal law and procedure issues relating to their convictions. They also argue that their activities were protected under the First Amendment. For the reasons stated below, we affirm the convictions and related sentences.

Appellants challenge the admission of evidence concerning: (1) members' racist remarks regarding recipients of threatening mail; (2) anti-Semitism contained in Committee of the States sermons and in certain notices sent to IRS agents; and (3) paramilitary training at various Committee meetings. They contend that the probative nature of such evidence was substantially outweighed by its prejudicial effect on the jury, and should therefore have been excluded under Fed.R.Evid. 403. Appellants also argue that evidence concerning Committee philosophy constituted inappropriate character evidence under Fed.R.Evid. 404.

A trial court's balance of the prejudicial impact with the probative value of evidence is reviewed under an abuse of discretion standard. United States v. Comerford, 857 F.2d 1323, 1324 (9th Cir. 1988), cert. denied, --- U.S. ----, 109 S. Ct. 812 (1989).

The trial judge did not abuse his discretion either by finding that evidence of appellants' racism, anti-Semitism, and paramilitary activities was probative of issues in the case, or by refusing to find such evidence unduly prejudicial. Evidence of the remark "Let's hang the n--r" in reference to Judge White is probative as to issues of identity, motive, and intentions of the conspirators regarding the seriousness of the death threat sent to the judge. Evidence of the Committee's anti-Semitism and paramilitary activities is probative of the issues of the conspiracy's potential for violence, its targeted enemies, as well as whether the appellants harbored ill will toward the recipients of the threatening communications. See United States v. Ring, 513 F.2d 1001, 1006 (5th Cir. 1975) (such evidence may be relevant to show that a particular letter was sent by the defendant).

Appellant "Mike" McCray argues that he relied in good faith upon historical facts tending to show that the current Federal Government is illegal because the U.S. Constitution was invalidly adopted. He contends that his conduct was therefore excusable under the doctrine of mistake. McCray did not present any evidence on the mistake issue at trial, nor did he submit to the trial court any of the historical documents in his excerpt of record on appeal.

As a general rule, an issue not presented at trial cannot be raised for the very first time on appeal. United States v. Greger, 716 F.2d 1275, 1277 (9th Cir. 1983), cert. denied, 465 U.S. 1007 (1984). Even were we to consider the mistake issue under an exception to the rule, we would not recognize the excuse in this case. " [D]eliberate ignorance and positive knowledge are equally culpable." United States v. Jewell, 532 F.2d 697, 700 (9th Cir.) cert. denied, 426 U.S. 951 (1976). While constitutional law is replete with cases contesting such issues as who has the authority to interpret the U.S. Constitution, see, e.g., Cooper v. Aaron, 358 U.S. 1 (1958); Marbury v. Madison, 5 U.S. 137 (1803), no serious legal challenge to the notion that the U.S. Constitution is the supreme law of the land has been raised in the last 200 years. All persons in the United States are charged with knowledge of the United States statutes at large as well as of the Constitution.

Appellants "Mike" and Patrick McCray contest the admissibility of documents discovered in the course of their arrests and detentions on outstanding traffic warrants on several Fourth Amendment grounds.

a. Pretextual Search

Appellants contend that the arrests for the bench-warranted traffic offenses were mere pretexts to stop the appellants' cars and search for contents, that officers exceeded the scope of appellants' consent in the warrantless searches, and that papers seized during the search were not in plain view. Appellants also argue that documents from their briefcases which were photocopied during their detention were not admissible as the product of an inventory search. In short, under the appellants' theory, the papers were not properly admitted under any applicable exception to the warrant requirement.

"Whether an arrest is a mere pretext to search turns on the motivation or primary purpose of the arresting officers." United States v. Smith, 802 F.2d 1119, 1124 (9th Cir. 1986). If a search incident to arrest "happens to uncover evidence of crimes other than the one for which the accused has been arrested," the evidence may be used against him or her in other prosecutions. Taglavore v. United States, 291 F.2d 262, 265 (9th Cir. 1961).

The legality of the arrest is a question of law which we review de novo. See United States v. Smith, 802 F.2d 1119, 1124 (9th Cir. 1986). We review the district court's findings of fact for clear error. United States v. Linn, 880 F.2d 209, 214 (9th Cir. 1989). The arresting officer testified that the purpose of the arrest was to apprehend them for valid, outstanding bench warrants. This is a sufficient basis for the district court to find that the motive behind the arrest was not to create a pretext to search. Therefore, we conclude that the trial court did not err in finding that the arrest was not an invalid, pretextual search.

b. Consent to the Search

A lower court's finding of informed and voluntary consent to search is reviewed for clear error. United States v. Alfonso, 759 F.2d 728, 740 (9th Cir. 1985). A trial court's findings on whether the scope of consent to a search has been exceeded will be upheld unless clearly erroneous. United States v. Rubio, 727 F.2d 786, 797 (9th Cir. 1983). "Mike" and Patrick McCray permitted the officers to open their briefcases to retrieve a gun and money (in "Mike's" case) and a gun (in Patrick's case). The trial court did not clearly err in determining that the searches of the briefcases were consensual.

The McCrays argue that despite their initial consent to the searches, the seizure and eventual perusal of papers found within the briefcases exceeded the scope of their consent. The government argues in response that, irrespective of the nature of the McCrays' consent to the search of the briefcase papers, the papers were properly admitted under the plain view exception to the warrant requirement. Because the court below adopted the government's argument that the plain view exception did apply to the seizure of the papers, the court never reached the issue of whether appellants' consent to search the briefcases extended to a search of the papers. We believe, however, that consent extended to a search of the entire contents of the briefcases.

" [T]he question of whether the scope of consent [has] been exceeded [is] a factual one, to be determined on the basis of the totality of the circumstances." United States v. Rubio, 727 F.2d 786, 797 (9th Cir. 1983). The government must conform to limitations placed upon the right granted to search. Id. at 796. Failure to limit one's consent, however, even during the search, indicates consent to the search and everything it reveals. United States v. Mines, 883 F.2d 801, 804-05 (9th Cir.), cert. denied, --- U.S. ----, 110 S. Ct. 552 (1989). Where a person has given consent to search, for example, a "black and white paisley bag, he [has] no reasonable expectation of privacy in any of its contents." Id. at 804. Appellants did not limit the scope of their consent to the briefcase searches. The officers did not, therefore, exceed the scope of consent.

c. Plain View and Inventory Search Exceptions

The government argues that seizure of the papers (a question different from whether the search was proper) was permissible under the plain view exception to the warrant requirement. The police officers who stopped the McCrays testified that in their search of the briefcase they glanced briefly at the papers inside and noticed that they were concerned with the Committee of the States. Although evidence might legally have been admissible, if seized at the scene, under the plain view exception, the record suggests that the officers did not seize the papers as evidence while at the scene of the stop. The papers did end up at the police station, where an Internal Revenue Service officer was called in to examine the documents late at night in the station house and the documents were photocopied and examined in great detail. The government argues that the station house search constitutes a valid inventory search, and that papers seized from the briefcase were thus properly admitted.

Once a suspect has been taken into custody, evidence discovered during an inventory search is admissible, provided that the police follow established procedures for inventorying a suspect's property, and do not search in bad faith or solely for the purposes of investigation. Colorado v. Bertine, 479 U.S. 367 (1987). Following their arrests, appellants had expressed a desire to take their briefcases with them when they were taken into custody. This desire did not relieve the officers of the responsibility to perform the inventory searches in accordance with recognized procedures, nor did it give the officers carte blanche to search for purely investigatory purposes. The station house perusal of the documents appears to have been conducted for purely investigatory reasons.

Despite the fact that the officers may have misused the inventory process, we view the district court's admission of the small number of items which were the product of the searches as constituting harmless error. See Chambers v. Maroney 399 U.S. 42, 53 (1970); Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). " [A]n otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt." Van Arsdall, 475 U.S. at 681. The police obtained several documents from the briefcase which were later admitted into evidence. In light of the amount and weight of the other evidence admitted at trial, we do not think that these few documents affected the outcome. We find any error in admitting these materials which may have been the result of a faulty inventory search to be harmless beyond a reasonable doubt.

There remains the issue whether evidence used to convict the appellants flowed from the impermissible searches. The government argues that appellants did not properly preserve this issue for appeal because they failed to voice objections on this ground at trial. Ordinarily, in the absence of an objection in the trial court, error in the admission of evidence is reviewable on appeal only if there is a showing of plain error, that is, "a highly prejudicial error affecting substantial rights." United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir. 1986).

In this case, appellants did make an argument concerning the fruits of the seized evidence in their motion to suppress and in the suppression hearing. "Generally, following the overruling of a pretrial motion to suppress, it is unnecessary to again object when the evidence is offered at trial." United States v. Lemon, 550 F.2d 467, 473 (9th Cir. 1977) (citing Lawn v. United States, 355 U.S. 339, 353 (1958)). Appellants have thus preserved their challenge on this ground. We therefore analyze whether the admission of the fruits of that search constituted harmless error.

Evidence acquired independently of the possibly impermissible briefcase searches is sufficient in this case to convict the appellants. Testimony by three separate officers at the suppression hearing indicates (1) awareness of information gathered during Committee of the States surveillance activities conducted prior to the briefcase searches, (2) knowledge acquired prior to the searches of the threats made to Judge White, (3) prior knowledge of the identities of Patrick and "Mike" McCray, and (4) awareness of Committee of the States meetings and their locations as well as the identities of meeting attendants. Testimony during trial by IRS employees and officers, police officers and recipients of threats from the Committee of the States indicates substantial sources of evidence independent of information acquired during the briefcase searches.

We find this evidence very powerful and persuasive. We hold that any error in admitting evidence that flowed from the possibly impermissible searches is harmless beyond a reasonable doubt.

Appellants McCray and Van Hazel argue that 18 U.S.C. § 876 (mailing a threatening communication) is a lesser included offense of 26 U.S.C. § 7212(a) (attempt to interfere with the administration of the Internal Revenue Laws). Appellants, convicted of four separate counts of each offense, contend that the mail threat convictions are multiplicitous, and therefore "merge" into the other convictions. Under this argument, the mail threat convictions should be dismissed on appeal.

" [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304 (1932); Gray v. Lewis, 881 F.2d 821, 822-23 (9th Cir. 1989). The fact that charges relate to and grow out of the same transaction does not make those charges a "single offense" where two separate crimes are defined by statute. United States v. Hughes, 626 F.2d 619, 624 (9th Cir.) (quoting Conerly v. United States, 350 F.2d 679, 681 (9th Cir. 1965)), cert. denied, 449 U.S. 1065 (1980), overruled on other grounds, United States v. De Bright, 730 F.2d 1255 (9th Cir. 1984) (en banc).

The offenses proscribed by 18 U.S.C. § 876 and 26 U.S.C. § 7212(a) clearly require the proof of different elements. The convictions for the two offenses are not multiplicitous. We will not dismiss the mail threat convictions on this ground.

Appellants were not sentenced under the Guidelines in this case, thus their challenges to sentencing decisions rely on Pre-Guidelines sentencing authority.

Appellant Patrick McCray argues that the difference between the severity of his sentence and that imposed on co-defendant Stefanelli violates his right to stand trial and his Eighth Amendment right to proportional sentencing. He cites Solem v. Helm for the proposition that a criminal sentence should be proportional to the crime for which a defendant has been convicted. 463 U.S. 277 (1983).

This court reviews a sentence within the permissible statutory limits for abuse of discretion. United States v. Vaccaro, 816 F.2d 443, 458 (9th Cir.), cert. denied sub nom. Alvis v. United States, 484 U.S. 914 (1987). A sentencing judge has broad discretion as to the severity of the sentence he or she imposes. United States v. Tucker, 404 U.S. 443, 446-47 (1972). The sentencing court may impose disparate sentences so long as it takes into account the individual circumstances of the defendants. Vaccaro, 816 F.2d at 458.

In this case, both Patrick McCray's and Stefanelli's sentences were within statutory limits. Patrick McCray could be lawfully sentenced to up to 30 months in custody. He received this maximum sentence. The government points out that McCray gave perjured testimony at trial, and continued to deny his guilt at the time of sentencing. Stefanelli, who admitted the culpability of his conduct, pled guilty to four misdemeanor charges, and cooperated extensively with the government in its presentation of this case, received one year in custody.¹  The circumstances underlying the two sentences justify the 1 1/2 year differential in custodial sentence. The trial court did not abuse its discretion in sentencing McCray to a longer term within the statutory limit.

Appellant Van Hazel contends that the District Court's reliance on facts presented at trial rather than on the recommendation of the presentence report denies him due process. The government points out that the district court, in order to address appellant Van Hazel's objections to certain items in the presentence report, stated that the sentencing would be based on the evidence presented at trial. The government argues that the detailed statements and analysis of the evidence which formed the basis for the sentence gave Van Hazel every opportunity to state his challenges.

A trial court may consider the facts and circumstances surrounding the underlying offenses and the defendant's demeanor and testimony at trial when imposing sentence. See Roberts v. United States, 445 U.S. 552, 556 (1980). A trial court's decision regarding information which it will consider for sentencing purposes is reviewed for abuse of discretion. Jones v. United States, 783 F.2d 1477, 1479-80 (9th Cir. 1986). The district court did not abuse its discretion in its sentencing of Van Hazel.

There is evidence sufficient to support conviction for participation in a conspiracy when any rational trier of fact could have found the essential elements of the conspiracy beyond a reasonable doubt. United States v. Adler, 879 F.2d 491, 495 (9th Cir. 1988).

Van Hazel, Parrino, and Mike McCray claim that the evidence was insufficient to convict them of the charged conspiracy, that the Pinkerton instruction on the substantive crimes charged in the indictment was improper, and that the evidence was insufficient to convict them of those crimes independently. We hold that the evidence was sufficient for a reasonable jury to find that each appellant was guilty of the charged conspiracy. The Pinkerton instruction and the subsequent convictions of the substantive crimes are not in error.

Where a group alleged to constitute a conspiracy engages in constitutionally protected activity, a stricter standard of review applies. See Noto v. United States, 367 U.S. 290, 299-300 (1961). Appellants argue that the conspiracy with which they were charged involved speech and conduct protected by the First Amendment, and that they should therefore be entitled to the stricter standard of review of the legitimacy of their convictions. But defendants were charged with threatening and intimidating government officials in violation of 18 U.S.C. § 876 and 26 U.S.C. § 7212(a). Such speech and conduct is not protected by the First Amendment.

Appellant Parrino on appeal raises several points concerning possible First Amendment violations in the district court's jury instructions. Because no objections were raised to these instructions, we may reverse only for plain error. Bustillo, 789 F.2d at 1367. Under this deferential standard, we do not find that the district court plainly erred.

Appellant Van Hazel argues that he was denied the opportunity to conduct his own defense, and was consequently denied his Sixth Amendment right to self-representation. See Faretta v. California, 422 U.S. 806, 819 (1975) ("The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense.").

" [T]he request to proceed without counsel [must] be unequivocal." Adams v. Carroll, 875 F.2d 1441, 1444 (1989). The right to self-representation must be asserted in a timely manner, that is, prior to the empanelment of the trial jury. Fritz v. Spalding, 682 F.2d 782, 784 (9th Cir. 1982). Although Van Hazel did attempt to file a pro se pleading with the district court, which the court struck as being in violation of local court rules, the attempt was not an unequivocal request to proceed without counsel. Although Van Hazel filed a "Notice of Objection" which included the issue of self-representation two months after trial, this "request" was not timely asserted.

The district court did not violate appellant Van Hazel's right to self-representation.

The convictions and sentences of the trial court are thus AFFIRMED.