United States of America, Plaintiff-appellee, v. Bonnie Ann Durham, Defendant-appellant.united States of America, Plaintiff-appellee, v. John Hanoum, Defendant-appellant.united States of America, Plaintiff-appellee, v. Jerome Sherman Stanley, Defendant-appellant, 990 F.2d 1262 (9th Cir. 1993)

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US Court of Appeals for the Ninth Circuit - 990 F.2d 1262 (9th Cir. 1993) Argued and Submitted Jan. 17, 1991. Submission Deferred Aug. 7, 1991. Resubmitted Dec. 30, 1992. Decided March 29, 1993

Before SCHROEDER, PREGERSON and T.G. NELSON, Circuit Judges.


MEMORANDUM* 

In United States v. Durham (and Stanley), 941 F.2d 886

(9th Cir. 1992), this court remanded the case to the

district court for the purpose of making findings on the

extent of direction and supervision of Special Assistant

United States Attorney George Williamson by the U.S.

Attorney's Office. We reserved decision on other issues

raised by Appellants pending receipt of the district court's

findings. Having received the findings, and determining

that adequate supervision and control was exercised by the

DISCUSSION

In making its findings, the district court had before it the declarations of Mr. Williamson, and Nancy Simpson, the Assistant United States Attorney with whom Mr. Williamson worked. Both of them also testified at the evidentiary hearing. Stanley contends the findings of the district court are not supported by the evidence in two respects.

Finding No. 6 states, in brief, that Williamson and Simpson met on the morning the indictment was to be presented to the grand jury. They discussed the proposed charges and the evidence to be presented. The testimony was consistent that there was a meeting that morning. There was some conflict as to whether the discussion of the proposed charges and available evidence took place that morning or the week preceding. The district court resolved the conflict and its finding is not clearly erroneous. The exact time of the meeting is not material to the resolution of the issue, in any event.

Stanley also challenges the district court's finding that Simpson discussed grand jury procedures with Williamson between 1985 and 1988. Ms. Simpson testified that she worked on other cases with Williamson prior to the Stanley case, that during those cases they discussed in advance what was going to happen and that she discussed instructions to the grand jury with Williamson in 1985. The district court's finding is fully supported by the record.

Stanley also argues that the district court made several erroneous rulings at the evidentiary hearing. Stanley contends that he moved to strike the Government's declarations at the hearing on remand. According to him, the district court denied the motion, as well as Stanley's follow-up motion to strike the irrelevant and conclusory portions of the declarations. The reporter's transcript, at the pages cited by Stanley, show no such motions or rulings. However, the fact that both Williamson and Simpson testified at the hearing and were subject to cross-examination by Appellants renders harmless any possible error relating to the declarations.

Stanley also contends that his cross-examination of Ms. Simpson was improperly limited. Ms. Simpson testified that she supervised special assistant U.S. attorneys (SAUSA). Stanley's question was designed to elicit the answer that because Williamson was not a SAUSA, she did not supervise him. The court was well within its discretion in sustaining an objection to this question which assumed the answer to the question the court was addressing.

The prospective documents, including the indictment, were drafted by Simpson. The indictment showed her and Williamson as the prosecutors assigned to the case. The documents were reviewed by the Chief of the Criminal Division in the U.S. Attorney's Office and by the U.S. Attorney. The documents were also reviewed and approved by the coordinator of the Drug Task Force. This procedure was consistent with procedures followed in all other cases where violations of federal drug laws were charged.

The district court entered findings but no conclusions of law, because we did not ask for any. The conclusion is inescapable, however, that Williamson was adequately supervised and directed by the U.S. Attorney's Office during his presentation of the indictment to the grand jury. Therefore, the district court had jurisdiction even though Williamson was alone in his appearance before the grand jury and in some appearances before the district court. U.S. v. Plesinski, 912 F.2d 1033, 1038 (9th Cir. 1990), cert. denied, 111 S. Ct. 1306 (1991).2 

Insofar as the Appellants challenge the jurisdiction of the district court, each of their convictions is 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

John Hanoum was a codefendant in the district court. His case was consolidated with Durham's and Stanley's for the purposes of considering issues relating to the supervision of Mr. Williamson. For that reason, those issues are discussed in this Memorandum. The other issues raised by Durham and Stanley are decided in separate dispositions. Bonnie Ann Durham has joined in Stanley's brief on this issue. For convenience, we will refer to both as Stanley in this disposition. We express no opinion on any other issues involved in Hanoum's appeal, No. 90-10048

 2

Stanley and Hanoum argue that Williamson's defective appointment rendered the indictment invalid and subject to dismissal. However, we rejected this argument in Durham I: "This alone would not be sufficient to upset the conviction,...." citing U.S. v. Mechanik, 475 U.S. 66 (1986). The only issue left open was whether Williamson was acting under the direction and supervision of the United States Attorney's Office. This question we answer affirmatively today