Petition — Walls v. United States

Supreme Cougt, U.

FILED’ |}

78-149 |} JUL 27 1978

9th Cir. Ct. \

reopened IN THE [ ‘wicunet pooar, JR., CLERK

SUPREME COURT

OF THE UNITED STATES

October Term, 1978

No. 76-473

KENNETH WAYNE WALLS,

Petitioner-Appellant,

vs.

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District

Court for the Central District of

Arizona, and from the United States

Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

MORRIS LAVINE

617 South Olive Street

Suite 510

Los Angeles, California 90014

(213) 627-3241

Attorney for Petitioner

TOPICAL INDEX

Page

st ioe : JURISDICTION 2

No. 77-2089 IN THE STATUTORY PROVISIONS 3

SUPREME COURT ) raneies

CONSTITUTIONAL PROVISIONS,

OF THE, UNITED STATES Mw

ein THE FACTS 4

KENNETH WAYNE WALLS, PROMISSORY NOTE 5

Petitioner- Appellant, ARGUMENT 15

vs. ; I

UNITED STATES OF AMERICA, THE COURT WAS WITHOUT JURISDIC-

; TION OF BOTH THE MAIL FRAUD

Respondent- Appellee. CHARGE ALLEGED IN § 1341 & 2

OF TITLE 18, U.S.C., AND UNDER

§ 2314 & 2 OF TITLE 18, U.S.C.,

SINCE NEITHER OF THEM OCCURRED

Appeal from the United States District

Court for the Central District of

Arizona, and from the United States

Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

MORRIS LAVINE

617 South Olive Street

Suite 510

Los Angeles, California 90014

(213) 627-3241

Attorney for Petitioner

WHEN THE TRANSACTIONS WERE COM-

PLETED ON DECEMBER 20, 1961, THE

DATE BOTH CHECKS WERE GIVEN TO

THE DEFENDANT. 15

Il

AN INDICTMENT SIGNED ONLY BY

AN ASSISTANT UNITED STATES

ATTORNEY IS INSUFFICIENT TO

COMPLY WITH FEDERAL RULES OF

CRIMINAL PROCEDURE, 7

18

Iil

THE INDICTMENT IN THIS CASE WAS

VOID, NOT BEING SIGNED BY THE

ATTORNEY FOR THE GOVERNMENT BUT

BY AN ASSISTANT UNITED STATES

ATTORNEY

18

TABLE OF AUTHORITIES CITED

IV

. Cases Pages

THE DISTRICT COURT ERRED

IN ADMITTING EVIDENCE OF Durland v. United States

OTHER LOAN TRANSACTIONS : 161 US 306, 40 L.Ed. 709 17

BY THE APPELLANT.

18 Eley v. United States

, 117 F.2d 526 19

V

Fillippon v. Albion Vein Slate Co.

ILLEGAL MEETING WITH JUROR 250 US 76, 65 L.Ed. 853 21

IN CHAMBERS

19 Gilmore v. City of Montgomery

417 US 556, 41 L.Ed.2da 304 23

VI

Holt v. Commonwealth of Kentucky

APPELLANT DID NOT RECEIVE , 284 F.2d 395 21

EFFECTIVE ASSISTANCE OF

COUNSEL Kann v. United States

22 323 US 88 a0, 23, 23, 22

Little v. United States

REASONS FOR GRANTING THE WRIT 23 | 73 F.2d 861 22

nan McNear v. United States

- OP

APPENDIX "A OPINION 60 F.2d 861 13, 15, 22

APPENDIX "B" - JUDGMENT

McNulty, Ex Parte

77 Cal. 164 12

Parr v. United States

363 US 370, 4 L.Ed.2d 1277 3, i3, @a

Procunier, Dir. of Calif. Dept,

of Corrections v. Hillery

417 US 817, 41 L.Ed.2d 498 23

Rogers v. United States

422 US 35, 45 L.Ed.2d l Zi, 23

Scherk v. Alberto Culver Co,

417 US 506, 41 L.Ed.2d 270 23

ottw

-iii-

Rules Pages

Cases Pages

Federal Rules of Criminal Procedure

Smith v. United States

360 US l, 3 L.Ed.2d 1401 21 Rule 7 4, 18, 20

Snyder v. Massachusetts Rule 43 4

291 US 907, 21

United States v. Maze

414 US 395, 38 L.Ed.2d 603 6, 32. 24

14, 15, 316, 285 22

Walker v. United States

322 F.2d 434 21

Constitution ;

Fifth Amendment, U.S. Constitution 4

Statutes ‘

United States Codes

Title 18, Section 2 2. i36- ee

Title 18, Section 1341 Z, @, i104 IGy. a9

Title 18, Section 2314 2, 15, 48

Title 28, Section 1254 (1) 2

Rules

Parole Evidence Rule

Corbin on Conract, §573, et seq.

A. Witmore on Evidence, §2425, et seq.

McArthur v. Johnson ,

216 Cal. 580 13

-iv-

Sth Cir. Ct.

No. 77-2089

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No, 76-473

oleate

KENNETH WAYNE WALLS,

Petitioner-Appellant,

vs.

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District

Court for the Central District of

Arizona, and from the United States

Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIOARI

TO THE HONORABLE CHIEF JUSTICE

WARREN BURGER, AND TO THE HONORABLE

ASSOCIATE JUSTICES OF THE SUPREME COURT

OF THE UNITED STATES:

Your Petitioner, Kenneth Wayne

Walls, respectfully petitions this

ade

Honorable Court for a Writ of Certioari

directed to the Court of Appeals for

the Ninth Circuit, and to the District

Court at Phoenix, Arizona, to review and

reverse the Judgment of Conviction of

the Petitioner for alleged violation of

the Mail Fraud Statute, 18 U.S.C., §1341

and 2, and a violation of 18 U.S.C. § 2314

and 2, charging transportation illegally

from Alaska of $10,000 in interstate com-

merce on or about December 20, 1971.

Appellant was sentenced to five

years in prison and a $5,000 fine, and

with a further order that defendant stay

committed until said fine be paid. (C.T.

156).

The Court of Appeals affirmed con-

viction of both counts and ordered the

mandate to issue forthwith and revoked

an enlargement on bail, and further

ordered that no petition for rehearing

will be entertained.

The Judgment of the Court of Appeals

was entered in the Court of Appeals on

June 28, 1978, and in the District Court

on June 30, 1978.

Pursuant to the Order of the Court

of Appeals, no petition for rehearing

was filed.

JURISDICTION

The Court of Appeals has juris-

diction to determine jurisdiction and

the facts of the case, pursuant to

Title 28, Section 1254(1), U.S.C. The

Judgment of the Court of Appeals was

entered on June 28, 1978; and in the

District Court on June 30, 1978. This

Petition of a is filed within

30 days thereof, the time allowed by law.

STATUTORY PROVISIONS

The questions presented for review

are:

(1) Whether either the District

Court or Circuit had jurisdiction to

entertain, try, or determine the appeal

under the facts of this case on a charge

of mail fraud or transportation of

$10,000 in interstate commerce.

(2) Whether the facts in this

case are insufficient to sustain a charge

of mail fraud or illegal transportation

of $10,000 in interstate commerce,

whether the evidence is contrary to the

laws and the facts.

(3) Whether the Judge of the

District Court had a right to have an

individual juror brought into his chambers,

in the absence of the defendant, and carry

on a discussion with the individual juror

about the case, whether the error was

harmless beyond a reasonable doubt.

(4) Whether the Court of Appeals

has mistaken some of the facts in the

case and therefore reached an erroneous

decision in regard to the facts and the

law.

(5) Whether the parole evidence

applies equally in criminal cases to

civil cases, and whether the Court erred

in ruling otherwise.

(6) Whether the Court erred in

holding that the indictme t was signed

only by an Assistant United States

Attorney and not by the United States

Attorney violated Fed. R. Crim, P. 7.

(7) Whether the District Court

erred in admitting evidence of other

loan transactions by the Appellant which

were not similar to the one made by the

Appellant.

(8) Whether the Appellant received

effective assistance of counsel.

OPINION

The Opinion of the Court of Appeals

at the writing has not been published,

but is attached to this Petition as Ap-

pendix "A".

CONSTITUTIONAL PROVISIONS, STATUTES,

RULES OF CRIMINAL PROCEDURE

Due Process Clause of the Fifth

Amendment to the Constitution of the

United States; (1) Frauds and Swindles,

Title 18, § 1341 (mail fraud); (2)

Principals; (3) Transportation of money

in interstate commerce (complete text

is in the Opinion of the Court attached

as Appendix "A"; and (4) Rule 43 of Rules

of Criminal Procedure for the District

Court,

THE FACTS

Appellant first met Mrs. Violet

Bjerke in December of 1970, when she was

looking for an automobile to purchase.

of8~e

She bought an old automobile from him

(R.T. 44). She had moved to Arizona

fromAlaska and was looking all over Scotts-

dale, Arizona, for a property to buy and

invest in. She met the Appellant while

looking for such a property, and ultimately

she made a loan to him on December 20, 1971,

of $20,000 in consideration of getting a

a of $25,000 on or before January 2,

2.

The Appellant discussed and told her

that he had a deal to develop a gravel

pit located in Calaveras County, California

(R.T. 45-46). She asserted that he flashed

a gold nugget and said it was something

that they got out of it. She was not sure

what he was referring to,

She and the Appellant at that time

drew up a promissory note at Phoenix,

Arizona, for $25,000, reading as follows:

“PROMISSORY NOTE

$25,000.00 Phoenix, Arizona

UPON DEMAND, FOR VALUE RECEIVED, I,

Kenneth Wayne Walls, promise to pay to

Violet E. Bjerke, or order, the sum of

TWENTY-FIVE THOUSAND DOLLARS ($25,000.00)

at Phoenix, Arizona, no later than Janu-

ary 2, 1972.

The security for this note will be

the conveyance of the mineral rights to

property located in Calaveras County,

Calif ‘nia, and legally described as follows:

(Mescription set forth)

said conveyance being made to Violet E.

Bjerke, At the date of maturity of this

note the above property will be reconveyed

to Kenneth Wayne Walls, provided that this

note has been paid in full.

DATED this 20th day of December, 1971.

/s/ Kenneth Wayne Walls

Kenneth Wayne Walls"

This note became Exhibit "1". Mrs.

Bjerke received another document which

she did not know what to call it, which

became Exhibit "2", which she recognized

as a quitclaim deed which was signed on

December 20, 1971.

She identified the two checks for

$10,000 each, in which she said she filled

in the name of the Appellant, one of which

was on the Arizona State Bank, and the

other which was on the Alaska State Bank.

The Alaska State Bank check was admitted

as Exhibit "3" and the one on the Arizora

State Bank was Exhibit "4".

The checks were given to Walls on

December 20, 1971. There was no discussion

at the time of the transaction that the

mails were to be used in any way by the

Appellant. The $10,000 check on the

Arizona State Bank was cashed at that bank.

The testimony of Ruth Cooke, who is

custodian of the records of the Arizona

State Bank, was to the effect that the

$10,000 check on the Arizona State Bank

was cashed at the Arizona State Bank, but

that the $10,000 check (Exhibit "4") on

the Alaska State Bank was deposited, not

cashed, but "was deposited to our account."

(R.T. 195).. There is no evidence that the

Appellant caused it to be transported or

that any money that he received was other

than the bank money in Arizona,

On January 2, 1972, Mrs. Bjerke began

trying to collect her $25,000 for the 13-

day loan which she said she made to Walls.

She kept dunning him for thenoney everyday

until he left in February, She said she

went out to his house in Tempe, Arizona,

every da on Don Carlos Street.

coe aie mt f Mr. ‘Walls, she said, "I need

this money bad." She said that he always

had some excuse like "I'll have it tomorrow

or I'll get hold of Mr. Lacoure, or some —

body else, and I'll get that money for you.

(R.T. 60).She said she never got it. Some

time in January, 1972, she saw a lawyer

named Oglesby, and she had the pret pynndl

deed taken to Calaveras County, eee a

to have it registered (R.T. 52-53), ¥ .

came back in the mail. The document becam

Exhibit "2" in evidence. (R.T. 55).

sked about the conversation which

she hed with Mr. Walls about the age

was contained in the quitclaim nape e ~

counsel objected that the parole evi ~oee

rule would be violated if she would HN

as to matters not within the gee ey oT e

54). The Court overruled tt a

d that the conversa

neopets along to either prove or oe

fraud, and that the Judge further sai a

"T dont know that the parole evidence

has anythng to do with it."

j d complained

Mrs. Bjerke apparently ha

to the Seiten at Scottsdale, Arizona, oo

12). She had gone to see a as n

the Scottsdale Police Department name

Kelly.

e Scottsdale Police Department

made Piggott closing the case on ee

13, 1972, stating that the case was i

founded and that the victim has ee “or,

and this will be a civil matter. (R.T. ,

In September of 1976, Mrs. em

and her attorney contacted the t's

asserted that she had never receiv

penny in repayment of the loan,

-8-

A defense witness, Ted Purinton,

who lives in Angels Camp, California,

Calaveras County, said that he had

Known the Appellant for 12 years and

had occasion to loan Walls money; and

that in the early part of 1972, he

had met a woman named Violet Bjerke

and he had brought $20,000 to Phoenix

in cash which he gave to the Appellant

to give to Mrs. Bijerke, and he said

he gave $20,000 to the Appellant in

Scottsdale, in the early part of 1972.

(R.T. 167-168).

He stated that he looked at the

rock quarry that Ken Walls was buying

in California, and he got together

the money that Walls sought to borrow,

which was $20,000. He stated that he

witnessed Walls counting out money to

the lady. He said he did not see every-

things, and he witnessed the woman

writing something like a receipt. (R.T.

169). Mrs. Bjerke denied that she had

received any money at any time. (R.T.

257, et sea.)

When the jury went out to deliberate,

Juror No. 7, Mr. D. K. Bruhn, sent a

note to Judge Copple requesting a con-

ference with the Judge, a Court Reporter,

a Government Attorney, and defense at-

torney (but not the defendant.) (R.T.

313). This was on the first day the jury

was out. The Judge did not see Mr. Bruhn

that day, but on the next morning at

9:00, the Judge had Mr. Bruhn brought

into chambers by the bailiff. At the

time, the Appellant was in the Courthouse

waiting for the jurys deliberation. He

was not notified of the note or the con-

ference until after it was over. (R.T.

315). Mr. Bruhn had a discussion with

the Judge in which he said he tought the

jurors "have all been taken." (R.T. 317).

-10-

‘ PP sone judge indulged in a conversation

an scussion regarding the case and the Appellant di

Ss -

juror's feelings and views, and said that , ment in the title Tetnten secarding the

oo judge will only call a mistrial if facts that Federal jurisdiction was ob-

t e jury cannot agree, and .ae judge said, tained when the quitclam deed was filed

unless the government dismisses the case, in California and returned to Arizona b

we will try it again with a different jury. " the use of the mails .

ata 317). The juror was sent back to

the Jury Room and the jury reconvened at The i

quitclaim deed was not filed

9:30 A.M. on March 31, 1977, and resumed California by or under Appellant's ec i

deliberations until 10:48 A.M., when the but was taken to Calaveras County by Mr

judge received a note from the jury in Oglesby, the attorney for Mrs. Bjerke on

which they asked to have the instructions or about January 24, 1972, and long after

of the law again read to them on both counts. the loan transaction was fully completed

. on December 20, 1971, there was nothin

The defense requested that all the in the recording of the quitclaim aur be

instructions be read, then the bailiff Mrs, Bjerke's attorney that he any part

sr page that the jury had reached a : or parcel of any scheme to defraud her,

verdict at 10:53 A.M, The jurors then and there was no use of the mails in the

were brought in the court and announced transaction at the Arizona State Bank.

eo had reached a verdict of guilty on Furthermore, this construction of the

“6 nag ardpady pee Ag | had Pr gr en rig application of the Mail Fraud Statute by

ense counsel asked leave of Cour the Court of Appeals, is directly contrary

to question Mr. Sorensen, the foreman of to United States v. Maze, 414 U.S. 395;

the jury, as to what Mr. Bruhn had said ond Guan 's Gaited Btates, 322 U.S. 88.

about the meeting with the judge to the : ’ —

panel, and the judge refused permission. Likewise, the statement in the

ede dy nan dhe ge integers «gry Opinion that jurisdiction was obtained

aaikas ean a obyections a date when Appellant cashed Mrs. Bjerke's Alaska

’ ' State Bank check in Arizona does not give

counsel, the Court allowed reintroduction jurisdiction to Count II of the indictment

of evidence of other loans taken by the since the testimony of Mrs. Cooke of the

Appellant. The Court overruled the objec~ Arizona State Bank shows that this check

tions. . was deposited in the Arizona State Bank,

and that Appellant had nothing to do with

Under California and Arizona law, the bank processing it in interstate

the transaction of Mrs. Bjerke was a commerce.

security instrument subject to beng fore- ;

closed and sued upon, but neither Mrs. Likewise, the state

P ment in the

Bjerke nor her attorney took this step Opinion that Walls had no interest in the

prior to the trial of ShSS CASS. mining claim is contrary to the evidence

«tle

of his father, Harley Walls, that he had

purchased the property which contained a

rock crusher plant and equipment, and

that he paid $40,000 for the 40-acre

parcel of which Lot 4, of Block 1 is a

subparcel containing the gravel pit.

(R.T. 242).

Harley Walls further testified that

on September 21, 1971, he gave his son a

general power of attorney and a quitclaim

deed to the mineral rights to the property

purchased from the Mohengs. (R.T. 232-233,

235-238). The fact that it was never

recorded did not invalidate the transfer.

Answering the argument of the Court

of Appeals, we again assert that the

Federal Court either had not acquired

or had lost all jurisdiction on December

20, 1971, when the money from the check

was obtained and anything that was done

subsequently thereto could not be in

furtherance of the scheme to defraud.

In United States v. Maze, 414 U.S.

395, 405, 38 L.Ed.2d 603, 611, the Court

said:

“Congress could have drafted

the mail fraud statute so as

to require only that the mails

be in fact used as a result of

the fraudulent scheme. But

it did not do this; instead it

required that the use of the

mails be 'for the purpose of

executing such scheme or arti-

Same" sks”

-12-

In Footnote 10 of the Maze case,

the Court said: -

"If the Federal Government

is to engage in combat against

the fraudulent schemes not

covered by the statute, it

must do so atthe initiative

of Congress and not of this

Court."

Neither the Appellant nor the

prosecutrix contemplated the use of the

mails in this 13-day loan, as shown by

the fact that the prosecutrix expected

to make a quick buck by the return and

payment of her money by January 2, 1972,

both parties living at the time in the

vicinity of Phoenix, Arizona, and not

requiring any use of the mails or con-

templating it; nor did the prosecutrix

condition her loan upon receiving a

recorded quitclaim deed before making

the loan.

Apparently, it was the suggestion

of Mrs. Bjerke's attorney to record the

quitclaim deed. There was no arrangement

or understanding by her or her attorney

with the Appellant that the quitclaim

deed should be recorded or returned by

mail to her in Arizona. Surely, the act

of the lawyer for the prosecutrix carry-

ing the quitclaim deed to the County

Recorder's Office at Calaveras County

and asking the Recorder to mail it back

cannot invest Federal jurisdiction to

constructively create mail fraud, Con-

structive crimes are repugnant to the

spirit and letter of English and American

law. Ex Parte McNulty, 77 Cal, 164, 168,

=} 3e

See McNear v. United States, 60 F.2d

861, 863; also see Parr v. United States,

363 U.S. 370, 4 L.Ed.2d 1277; Kann v.

United States, 323 U.S. 88, United States

v. Maze , 414 U.S. 395, 38 L.Ed.2d 603.

As to Count II, it is admitted by

the Court of Appeals that the funds

transferred from Alaska State Bank were

through the Federal Reserve System (R.T.

121-123) and there is no evidence that

it was transferred in interstate commerce

through the instrumentality of the Appel-

lant, or that the money was received by

the Appellant through interstate com-~

merce. Nor is there any evidence that

Mrs. Bjerke rely on what use Appellant

intended to make of the money or that

she was interested in anything but

getting the $25,000 in 13 days for a

loan of $20,000. She at no time sought

to exhaust the remedies available to

her other than to have the Appellant

prosecuted. There is no evidence that

she relied on any representatiors other

‘than what were set forth in the promis-

sory note. The Petitioner contends that

her testimony should have been confined

to the Parole Evidence Rule.

The Court below has erred in the

statement of facts when it asserts as

follows:

"After making the loan, Mrs.

Bjerke became concerned over

her investment with the Appel-

land and ultimately had the

quitclaim deed mailed to Cala-

veras County, California, for

recording, but not until

January 24, 1972."

It appears from the face of the instru-

ment that it was taken into the Recorder's

-14-

office personally by Mrs. Bijerke's

attorney, Mr. Ogelspy, and that he

requested that it be mailed back to

Mrs. Bjerke. (R.T. 72).. It was the

request of Mrs. Bjerke's attorney to

mail back the document on January 24

1972, that formed thelasis of the claim

of Federal jurisdiction in this case

but the transaction involving the two

checks was completed on December 20,1971

Under the principle of United States Vv.

Maze, 414 U.S. 395, 38 L.Ed.2d 603, there

was no use of the mails in any scheme

to defraud. Congress did not intent to

stretch the mail fraud statute to cover

Situations presented by this case.

(United States v. Maze, 414 U.S. 395

38 L.Ed.2d 603.)

’

en The sare 10 gine was also in

in stating that when Appell

the $25,000 in checks from aca. Seadhe on

December 20, 1971, and issued a note to

her for $25,000 payable January 2, 1972

he had no title to the land or mineral

right which he purported to assign.

: At trial Appellant's father testi-

fied that he purchased the property in

Douglas Flat for $134,000 on September

l, 1971, from the previous owners. He

testified he paid $3,000 down, the balance

to be paid pursuant to an agreement of

Sale. (R.T. 227). Apparently this 4.2

acre parcel contained a rockcrusher plant

and equipment. (R.T. 231).

The father further testified that @m

September 23, 1971, he gave his son, the

Appellant, a general power of attorney and

aquitclaim deed to the mineral rights to

-15-

the property purchased from the Mohengs.

(R.T. 232, 233, 235, 238).

However, he admitted that he never

recorded either the quitclaim deed or the

power of attorney. (R.T. 239).

Attorney Raineri testified from his

records that the land value was $44,000

for the acreage, that mineral rights were

very valuable, and that the gold and

gravel were part of the mineral rights.

(R.T. 267, 269). He testified that on

September 1, 1971, they paid a down pay-

ment of $3,000.00. On September 30, 1971,

they paid another $32,000, and they issued

another $14,000 in lost fees of the total

purchase of $134,000 (R.T. 264).

ARGUMENT

I

THE COURT WAS WITHOUT JURIS-

DICTION OF BOTH THE MAIL FRAUD

CHARGE ALLEGED IN § 1341 & 2

OF. TITLE 18, U.S.C., AND UNDER

§ 2314 & 2 OF TITLE 18, U.S.C.,

SINCE NEITHER OF THEM OCCURRED

WHEN THE TRANSACTIONS WERE COM-

PLETED ON DECEMBER 20, 1961, THE

DATE BOTH CHECKS WERE GIVEN TO

THE DEFENDANT. (United States

v. Maze, 414 U.S. 355, 38 L.Ed.2d

603; Kann v. United States, 323

U.S. 88; McNear v. United States,

60 F.2d 861, 863; and Parr v.

United States, 363 U.S. 370, 4

L.Ed.2d 1277.

Congress did not intend the Mail

Fraud statute or the statute relating

to transportaton in interstate commerce

-1l6-

of money allegedly obtained by fraud to

cover completed transactions; and if

they had decided to do so, their statute

would have been clear on the subject.

There was only one mailing shown

by the evidence which allegedly occurred

on January 24, 1972, from the Calaveras

County Recorder's Office, and not two

mailings as stated by the Court in its

Opinion. Examination of the original

document appears to show that the Ap-

pellant knew or saw or did anything that

the mail would be used in the transaction.

The transaction was scheduled only for

13 days, from December 20, 1971, to

January 2, 1972, and both parties were

living in Arizona.

Both checks involved were presented

to the bank the same day, on December 20,

1971. The check on the Arizona bank was

cashed the same day, and the other check

was deposited in the local Arizona State

Bank on the same day. The Alaska State

Bank check went through the Federal Re~

serve System (R.T. 121-123).

Appellant never had anything ’

with the method that the Alaska ban’.

would reimburse the Arizona bank. Avr. far

as he was concerned, both transactions

involving the money were completed on

December 20, 1971, and were not in fur-

therance of any scheme to defraud.

We have answered paragraph A in the

Issues set out in the Opinion of the Court

of Appeals that on jurisdictional grounds,

as set out in United States v. Maze, supra,

and other cases cited, Federal jurisdic-

tion was lacking inthe trial of this case.

o) Je

In answer to paragraph B, was

there sufficient evidence for the trier

of fact to find the Appellant guilty.

We assert that the evidence was insuffi-

cient under the facts of this case to

find the Appellant guilty of both counts

of the indictment.

In addition to the jurisdictional

defects set out above, the additional

facts show that the Appellant at no time

used the mails in the transaction and

the acts of the attorney for the prosecu-

trixin leaving the quitclaim deed at the

Calaveras County Recorder's Office for

recording could not transfer his acts in

requesting the use of the mail and to

place the onus of use of the mails upon

Appellant. This would become a construc-

tive crime.

Furthermore, there was no proof of

fraud or any representation which Appel-

lant made on which he relied. Her main

object was to get $25,000 in 13 days for

the use of $20,000.

The failure of a person to pay an

obligation when due does not make him

guilty of an offense, even if he disap-

points his creditor in failing to make

such payments. (Durland v. United States,

161 U.S. 306, 313, 40 L.Ed. 709, 711).

As stated in Durland v. United States,

161 U.S. 313, the Court said:

"It is common knowledge that

nothing is more alluring and

the expectations of receiving

a large return on small invest-

ments."

The return that Mrs. Bjerke expected

was $384.00 per day.

-18-

II

AN INDICTMENT SIGNED ONLY BY

AN ASSISTANT UNITED STATES

ATTORNEY IS INSUFFICIENT TO

COMPLY WITH FEDERAL RULES OF

CRIMINAL PROCEDURE, 7.

IIt

THE INDICTMENT IN THIS CASE

WAS VOID, NOT BEING SIGNED BY

THE ATTORNEY FOR THE GOVERN-

MENT BUT BY AN ASSISTANT UNITED

STATES ATTORNEY.

The indictment in this case is not

Signed by the attorney for the government.

Only an Assistant United States Attorney

signed the indictment. Nowhere is there

any foundation showing that Congress has

authorized an assistant to sign an in-

dictment of the grand jury. Rule 7,

F.R.Cr.P., provides in pertinent part

that:

"The indictment shall be signed

by the attorney for the govern-

ment." (In re Grand Jury, January

1969, 215 F.Supp. 662, et seq.

IV

THE DISTRICT COURT ERRED IN

ADMITTING EVIDENCE OF OTHER

LOAN TRANSACTIONS BY THE

APPELLANT.

Over the objections of the Appellant,

the Court received testimony of other loan

transactions made by the Appellant. They

=19@

were not similar, they involved no

charge of any crime and should not

have been admitted before the jury

in this case.

The Court erred in allowing

the government to introduce testimony

regarding loan transactions of Ensyne

Strout Clark with Appellant (R.T. 124-

129) and with Claude Haynes (R.T, 132-

138). A defendant is to be tried only

upon competent evidence and only for

eee charged. (Helton v. United

tates, 1 F.2d 338). The proof of an

unlawful, fully unrelated to the crime

charged is not admissable on any grounds.

(Eley v. United States, 117 F.2d 526).

The transactions were not similar

to the crimes charged and the Appellate

Court admitted that the failure of the

trial court to give a specific jury in-

struction on the use to be made of this

testimony was not unduly prejudicial was

itself a prejudicial error. The trial

judge had a duty to protect the defendant

from testimony on matters not charged in

the indictment and to which the defendant

had not previous notice.

It was error for the Court of

Appeals to hold that the failure to

give a limiting instruction to the jury

was itself reversable error.

V

ILLEGAL MEETING WITH

JUROR IN CHAMBERS

While deliberating charges brought

in the United States District Court of

@20<

Phoenix, Arizona, that the defendant

violated Title 18 U.S.C., Sections

1341 and 2341 and 2, charging mail

fraud and illegal transfer of funds

from Alaska to Arizona.

Juror No. 7, D. K. Bruhn, sent a

note on the second day of deliberating,

had a conference in chambers with Judge

Coppel (R.T. 315). Mr. Bruhn had sent a

note to the judge the day before requesting

that he have a conference with the judge,

the Court Reporter, the Government attor-

ney, and the defense attorney. He did

not mention the defendant. The defendant

was in the Courthouse awaiting the actions

and decision of the jury in not sending

Mr. Bruhn away, telling him that he could

only hear the matter in open court with

the defendant present with counsel. Under

Fed. R. Crim. P. 43, invited Mr. Bruhn

to come into chambers, and alsothe govern-

ment counsel and public defender. A dis-

cussion flowed privately in the Judge's

chambers. The juror said to the Court,

"Quite frankly, I think we have been had."

The Judge asked him what he was talking

about instead of terminating the session

and directing that all matters be taken

up in open court. The juror again con-

tinued to discuss privately and alone

with the judge what he was talking about.

(R.T. 316). The discussion lasted until

from 9:00 through when court convened at

9:30, when juror Bruhn was returned to the

Jury Room.

The defendant was never called to

participate.

The error committed by the Judge

affected the substantial rights of the

aZle

Appellant and the rules which Congress

and the courts have set up that the

defendant is entitled to be present at

every stage of the proceeding, and

particularly when the jury has questions

to ask, and additional discussion or

answers are to be given by the Court in

the presence of the defendant and his

counsel.

The Court of Appeals excuses the

failure to have the defendant present on

the authority of Snyder v. Massachusetts,

291 U.S. 907, 106- . The Snyder case

deals with the taking of a jury to the

soene of a crime where it appears that

there were no words spoken or any discus-

sion had relating to the case at the

scene where the jurors were taken.

The error in this case was of con-

stitutional and statutory magnitude and

was not harmless beyond a reasonable

doubt. Rogers v. United States, 422 U.S.

35, 45 L.Ed. l ; Fillippon v. Albion Vein

Slate Co., 250 U.S. , 65 L.Ed. 853;

Shieldsv. United States, 273 U.S. 583,

71 L.Bd. 787; Holt v. Commonwealth of

Kentucky, 284 F.2d 395; Smith v. United

States, 360 U.S. 1, 3 L.Ed.2d 1401;

Walker v. United States, 322 F.2d 434.

The errors could be said to be harm-

ful in this case, for the juror, after

returning to the Jury Room following the

comments of the judge reached a verdict

diametrically opposite to the position

that he expressed he was taking while

talking to the Judge, and the discussions

with the judge definitely influenced him

and swayed him to change his position.

-22-

After the jury announced its verdict,

defense counsel asked for permission to

ask the foreman what comments were made by

Bruhn regarding his conference in chambers

(R.T. 32). This was denidad. This was also

error. See Little v. United States, 73 F,

861-866. P —

Vi

APPELLANT DID NOT RECEIVE

EFFECTIVE ASSISTANCE OF COUNSEL

In addition to the matters discussed

by the Court of Appeals in its Opinion,

the Appellant failed to do the follewing

essential to his having a fair trial and

being protected at every stage of the

proceeding:

A. He failed to object to the lack

of having the defendant present at the

conference the judge called with Juror

Bruhn, and failed to object and moved for

a mistrial because of the conference with

the individual juror and the events that

occurred there.

B. He failed to object to the juris-

diction of the Court at the beginning of

the trial under the authority of United

States v. Maze, 414 U.S. 395, 38 L.Ed.2d

603; Kann v. United States, 323 U.S. 88;

McNear v. United States, 60 F.2d 861, 863;

and Parr v. United States, 363 U.S. 370,

4 L.Ed.2d 1277, and also at the time of

motions for judgments of acquittal, he

failed to offer any defense instructions

limiting the jurors' consideration of

other loan transactions,he failed to dfer

any instructions regarding the failure of

the use of the mails. He also failed to

offer instructions regarding the lack of

-23-

use of interstate commerce, in addition

to the other matters discussed by the

Court of Appeals, particularly the ab-

sence of the original note could be

evidence that Mrs. Bjerke had sold it

or hypothecated it, and it should have

been called to the attention of the Court

and jury.

REASONS FOR GRANTING THE WRIT

This case raises important questions

of criminal law, particularly in the

interpretation of criminal law, and speci-

fically relating to mail fraud and to

interstate commerce of money allegedly

obtained by fraud and the methods, or

lack of methods to prove the same.

Congress' intent to limit the use

of the Federal Courts in mail fraud cases

and also to fraud in interstate commerce,

to schemes in being, and not those al-

ready completed, as shown in the case of

United States v. Maze, 414 U.S. 395, 38

L.Ed.2d0 603.

The importance of cases involving

the presence of defendant and his right

to be there at all times is set forth and

certioari was granted in United States v.

Kogers, 422 U.S. 35, 45 L.Ed.2d 1.

The importance of questions as a

basis for a grant of certioari by the

Supreme Court of the United States are

shown by the following cases: Scherk v.

Alberto, Culver Co., 417 U.S. 506, 41

L.bd.2d 270; Gilmore v. City of Montgonery,

417 U.S. 556, 41 L.Ed.2d 304; Procunier,

Director of California Department of

Corrections v. Booker T. Hillery, 417 U.S.

In each of the foregoing cases, the

Court granted certioari to determine the

important questions of law.

=24<

The Opinion of the Court of Appeals

contains law in conflict with the decisions

of this Honorable Court, to-wit: United

States v. Maze, 414 US 395; Parr v. United

States, 363 US 370; Kann v. United States,

323 US 88 (relating to mail fraud); Rogers

v. United States, 422 US 35 lindividuat

Conference With juror); Fillippon v. Albion

Vein Slate Co., 250 US 76.

WHEREFORE, Petitioner-Appellant prays

that this Honorable Court grant certioari

and reverse the judgments and orders below.

Respectfully submitted,

MORRIS LAVINE

> My ‘ - " /

}i| A Arte Cartewr’y

“~

Attorney for Petioner-Appellant

APPENDIX

"Ae

FILED

JUN 28 1978

EMIL E, MELFI, JR.

CLERK, U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, ) No. 77-2089

Plaintiff-Appellee, )

Vv. )

KENNETH WAYNE WALLS, )

De fendant-Appellant)

OPINION

Appeal from the United States District

Court for the District of Arizona

Before: BARNES and CHOY, Circuit Judges,

and LYDICK,* District Judge

BARNES, Senior Circuit Judge:

The appellant, Kenneth W. Walls,

was convicted by a jury in the District

Court of Arizona on two counts. The

first count charged the appellant with

devising a scheme or artifice to defraud

Violet Bjerke, by causing a quitclaim

deed executed by him to be sent through

the United States Postal Service on or

about January 24, 1972, from Calaveras

County, California, to Arizona, in

violation of 18 U.S.C. §§13411/ and 2.2/

The second count charged appellant with

transporting from Alaska and Arizona

$10,000 in interstate commerce on or

about December 20, 1971, in violation of

*Honorable Lawrence T. Lydick, United

States District Judge, Central District

of California, sitting by designation.

oan

18 U.S.C. S§ 23147 and 2. Appellant was

sentenced to five years in prison and a

$5,000 fine with the further order that

"defendant stay committed until said

fine be paid." (CT 156).

We have jurisdiction. 28 U.S.C.

§§ 1291 and 1294(1). The district court

had original jurisdiction. 18 U.S.C.

§ 3231.

Appellant raises twenty-one issues

on appeal. We reduce them to the six

suggested by the government and conclude

that none of appellant's contentions

warrant reversal.

I. FACTS

We adopt a modified and enlarged

form of the government's statement of

facts, which is more precise and accurate

than that offered by appellant. 4/

Appellant allegedly made false rep-

resentations to obtain $20,000 from Mrs.

Violet Bjerke. The misrepresentations

concerned his claimed ownership and the

mineral productivity of property in

California which induced Mrs. Bjerke to

loan appellant $20,000 on a short-term

basis. The loan was never repaid.

Federal jurisdiction was obtained when

the quitclaim deed was filed in

California and returned to Arizona by

use of the mails, and when appellant

cashed Mrs. Bijerke's Alaska State Bank

check in Arizona.

In December of 1971, appellant ap-

proached Violet Bjerke in Scottsdale,

Arizona, about investing in a gravel pit

and gold mining operation appellent

Claimed to have underway in Calaveras

County, California. (RT 45-46). Appellant

had tried unsuccessfully to interest Mrs.

Bjerke in his investments on several

prior occasions. (RT 45).

Appellant claimed to be getting

gold out of the gravel pit and showed

Mrs. Bjerke nuggetts he claimed were taken

from the operation. (RT 57). Mrs. Bjerke

agreed to invest $20,000 in appellant's

venture. In return, appellant executed

on December 20, 1971 a promissory note,

promising to pay her $25,000 "no later

than January 2, 1972." As purported

security, appellant gave Mrs. Bijerke a

quitclaim deed to the mineral rights in

the gravel pit/gold mine. (RT 49-52).

Relying on appellant's statements,

the promissory note and the security

therefor, Mrs. Bjerke gave appellant two

checks on December 20, 1971, one drawn

on her Alaska bank account in the amount

of $10,000 (RT 58; Gov. Exh. 3), and

another $10,000 check drawn on an Arizona

bank. (RT 59; Gov. Exh. 4).

The local check was cashed the same

day; the Alaska check was endorsed and

presented to the local bank the same day

(apparently to be applied on Loan No.

42-11135), and was paid by the Alaska

bank on December 27, 1971. By cashing

the $10,000 check drawn on the Alaska

State Bank, appellant caused the Alaska

State Bank to withdraw $10,000 from Mrs.

Bjerke's account. The Arizona Bank in

Phoenix received the $10,000 from the

Alaska State Bank through the Federal

Reserve System. (RT 121-123).

=~30

Appellant represented to Mrs. Bijerke

that he would use the money to develop

the gold mine in Calaveras County. Mrs.

Bjerke never received any money in return.

Appellant kft the Phoenix area in

February, 1972. (RT 60).

After making the loan, Mrs. Bjerke

became concerned over her investment

with the appellant and ultimately had

the quitclaim deed mailed to Calaveras

County, California, for recording, but

not until January 24, 1972. She received

the deed back from the county recorder's

office in the mail. (RT 52-53). Recorded

instruments are mailed out by the county

recorder in the ordinary course of busi-

ness (RT 80-81).

The parcel in question is between

three and five acres and is part of a

larger forty-acre parcel which apparently

had a fair market value ranging from

$18,760 (as of May, 1970) to $30,030 (as

of November, 1973). (RT 104, 105). The

Calaveras County Assessor has no informa-

tion that the parcel in question has ever

produced commercial quantities of gold.

(RT 106).

No record or appellant's ownership

of Lot 4, Block 1, Douglas Flat Townsite

(the mineral rights of which appellant

gave Mrs. Bijerke as security) exists in

the official records of Calaveras County.

(RT 90). At the time of appellant's rep-

resentations to Mrs. Bjerke (December,

1971), record title was in the name of

one Moheng. (RT 91). Title to the parcel

after January 2, 1972 was in the name of

Harley R. Walls and Margaret Petts Walls

(appellant's parents), pursuant to a

grant deed dated December 13, 1971 but

not recorded until January 7, 1972.

(RT 90). When the appellant gave Mrs.

Bjerke the quitclaim deed, he had

nothing to give. (RT 91, 95).

In sum, when appellant Kenneth W.

Walls took the $20,000 in checks from

Mrs. Bjerke on December 20, 1971, and

issued his note to her for $25,000 pay-

able in January 2, 1972, he had no title

to the land, or the mineral rights which

he purported to assign. Furthermore,

we note that, on December 20, 1971, only

Item 1 of the various deeds (see note 3,

Supra) was recorded in Calaveras County,

where the property was located.

At trial, the defense called Ted

Purinton, who testified that he loaned

appellant $20,000 in January, 1972, and

was present, within sight, when appellant

paid Mrs. Bjerke an unknown amount of

money by counting the cash out to her on

the hood of his car at 5:00 p.m. on the

side of a road in Scottsdale, Arizona.

(RT 168-169). This scenario was flatly

denied by Mrs. Bjerke (RT 258). Purinton

stated that appellant had told him he

needed the $20,000 to buy a rock plant.

(RT 171).

Appellant's father, Harley Walls,

testified for the defense that he pur-

chased the property in Douglas Flat for

$134,000 on September 1, 1971 from the

previous owners. (RT 226). Walls further

testified that he paid $3,000 down, the

balance to be paid pursuant to an agree-

ment of sale. (RT 227). Apparently, this

4.2 acre parcel contained a rock crusher

plant and equipment. (RT 231).

= Sam

For some reason, however, Harley Walls

did not obtain the deed to this property

until a subsequent transaction occurred

between Walls and the previous owners in

December, 1971 (RT 243). Walls testified

that, at this latter transaction, he paid

$40,000 for the forty-acre parcel of which

Lot 4, Block 1, is a subparcel. (RT 242).

In his testimony, Harley Walls claimed to

have worked the gravel pit on the forty-

acre parcel prior to having it deeded to

him on December 13, 1971. (RT 244). He

also stated that the entire venture was

abandoned in the latter part of 1972.

(RT 244-245).

Harley Walls further testified that

on September 23, 1971, he gave his son

(the appellant) a general power of attorney

and a quitclaim deed to the mineral rights

to the property purchased from the Mohengs.

(RT 232-233, 235, 238). However, no such

quitclaim deed was produced (RT 237), and

Harley Walls admitted that he never recorded

either the quitclaim deed or the power of

attorney. (RT 239). The power of attorney

in evidence was neither witnessed nor

acknowledged (Def. Exh. A), and of course,

never recorded.

II. Issues ~/

A. Was use of the mails and cashing

of the Alaska check sufficient to bring

appellant's transactions within either

or both of the statutes charged in the

indictment?

B. Was there sufficient evidence

for the trier of fact to find appellant

guilty?

C. Is an indictment signed only

by an Assistant United States Attorney

sufficient under Fed. R. Crim. P. 7?

D. Did the district court err in

admitting evidence of other similar loan

transactions by the appellant and failing

to instruct the jury on the limited use

to be made of such evidence?

E. Was it error for the district

court to meet with a juror in chambers,

in the presence of both counsel and with

their consent, but in the absence of ap-

pellant? If so, was the error harmless?

F. Did the appellant receive ef-

fective assistance of counsel?

A. USE OF THE MAILS

At the outset, appellant makes what

is essentially a jurisdictional argument

that use of the mails was insufficient

in this case to give federal authorities

jurisdiction to prosecute. As to Count

I, appellant contends that neither Mrs.

Bjerke's mailing the deed to California

for recording nor the Calaveras County

Recorder's mailing of the recorded quit

claim deed to Mrs. Bijerke (these being

the only mailings upon which to base

federal jurisdiction in this count) was

for the purpose of executing a scheme to

defraud as required by 18 U.S.C. § 1341.

As to Count II, appellant claims there is

no evidence that appellant transported or

caused to be transported $10,000 from

Alaska to Arizona and that, therefore,

the jurisdictional requirement of inter-

state commerce in 18 U.S.C. § 2314 was

not met.

B. SUFFICII ‘CY OF THE EVIDENCE

AS TO COUNT II

Viewing the evidence, as we must,

in the light most favorable to the govern-

ment, Glasser v. United States, 315 U.S.

60 (1942), it is clear that appellant

misrepresented the validity of the quit-

Claim deed which Mrs. Bijerke relied on

for security when agreeing to loan ap-

pellant $20,000, including the $10,090 check

drawn on an Alaska bank.€&/ tt is unques-

tionable that appellant then deposited in

an Arizona bank a $10,000 check drawn on

an Alaska bank, thereby causing the Alaska

bank to transfer funds to Arizona. Such a

deposit, when taken by fraud, is within

the prohibition of 18 U.S.C. § 2314 despite

the fact that the mails may not have been

used and the check cashing may not have

been in furtherance of a scheme to defraud.

United States v. Willis, 528 F.2d 381 (9th

Cir. 1976); United States v. Gundersen,

518 F.2d 960 (9th Cir. 1975). Thus, the

jury could reasonably have concluded that

appellant both obtained $10,000 by fraud VY

and then caused that amount to be trans-

ported in interstate commerce in violation

of § 2314. The evidence was therefore suf-

ficient to convict appellant on Count II.

United States v. Coplen, 541 F.2d 211, 216

(9th Cir. 1976).

C. SIGNATURE ON THE INDICTMENT

Appellant attacks the indictment

on grounds that it was signed by an

Assistant United States Attorney and not

by the "attorney for the government" as

required by Fed. R. Crim. P. 7(c)(1). We

hold, however, that the signature of the

aQ-

United States Attorney himself was not

essential and that the signature of an

Assistant United States Attorney was

sufficient to indicate the necessary

agreement of the United States Attorney

with the action taken by the grand jury.

United States v. Wright, 365 F.2d 135,

137 (7th Cir. 1966), cert. denied, 386

U.S. 918 (1967); Abramson v. United States,

326 F.2d 565, 567 (5th Cir.), cert. denied,

377 U.S. 957 (1964).

D. EVIDENCE OF SIMILAR LOAN TRANSACTIONS

Evidence of other loan transactions

in which appellant had defaulted was sub-

mitted by the government to rebut appel-

lant's claim that he borrowed from Mrs.

Bjerke in good faith Under Fed. R. Evid.

404(b), evidence of other acts is admissible

to show the knowledge and intent, and

therefore, the lack of good faith, with

which appellant acted. United States v.

Moore, 522 F.2d 1068, 1079 (9th Cir. 1975),

cert. denied, 423 U.S. 1049 (1976). Whether

the danger of prejudice from admission of

such evidence outweighs its probative value

is committed to the trial court's sound

discretion. United States v. Nichols,

534 F.2d 202, 204 (9th Cir. 1976). Under

the circumstances, we cannot say that the

trial judge abused his discretion in ad-

mitting the other transactions which, in

our opinion, were sufficiently similar to

the charged offense to be probative of a

common plan, scheme, design, system, or

course of conduct. See Parker v. United

States, 400 F.2d 248, 251-252 (9th Cir.),

cert.denied, 393 U.S. 1097 (1968) (criteria

for reviewing admission of similar trans-

actions).

Furthermore, the failure of the trial

court, on its own motion, to give a speci-

fic jury instruction on the use to be made

of these similar transactions, when properly

viewed in the light of the case as a whole

(United States v. Park, 421 U.S. 658, 674-676

(1975)), was not unduly prejudicial. Al-

though it would have been preferable to give

an instruction which carefully limited the

jury's use of the similar transactions, 9,

(see, e.g., United States v. Brown, 562 F.2d

1144, (Sth Cir. 1977); United States

v. Moore, supra, 522 F.2d at 1079), we can-

not say that failure to give such an instruc-

tion sua sponte was an abuse of discretion

particularly where, as here, there was no

request by defense counsel for the specific

instruction. See United States v. Park,

supra, 421 U.S. at 676 (failure to request

particular instruction considered as factor).

See also United States v. McSweaney, 507

F.20 298, 301 (9th Cir. 1974) (failure to

give accomplice instruction sua sponte not

reversible error). The jury instructions,

taken together, focused the jury's atten-

tion on its duty to consider only the crimes

charged in the indictment solely in the

light of evidence tending to prove the

necessary elements of those crimes. See

United States v. Sambrano, 505 F.2d 284,

287 (9th Cir. 1974) (instructions, though

not in precise language requested by

counsel, sufficiently focused jury's at-

tention on issue of identity); United

States v. Fritts, 505 F.2d 168, 169 (9th

Cir. 1974), cert. denied, 420 U.S. 992

(1975) (failure to give cautionary accomplice

instruction not reversible error); United

States v. Campbell, 507 F.2d 955, 958 (9th

Cir. 1974) (failure to give desired instruc-

tion was not plain error in light of fair ,

-10=

and neutral statements made by trial

judge and otherwise detailed and ac-

curate instructions),

While the failure to give a limiting

instruction is an important factor, it

1s not determinative. United States v.

Brown, supra, 562 F.2d at 1148. Here the

failure to give such an instruction was

not reversible error. See United States

v. James, F.2d (9th Cir. May

12, 1978), slip op'n at 1537; United

States v. Brown, supra.

E. MEETING WITH JUROR IN CHAMBERS

Appellant contends that his right

to be present at all stages of the criminal

proceeding was infringed when the trial

judge held a conference, in chambers and

on the record, with a juror and both

counsel. (RT 315-318). At this conference,

Juror D. K. Bruhn, who requested the

meeting, complained that "we [presumably

the jury] have been had" because "the [use

of] the mails in this case are a strictly

secondary point. He [the appellant] had

no control over it." (RT 316). In response,

the : data judge maintained strict neutral-

ityt Juror Bruhn then suggested the

possibility of declaring a mistrial to which

the trial judge responded with similar

neutrality. l The judge then asked

counsel if they wished to add anything else

to the record of this conference. No ob-

jections were raised. (RT 318).

The general rule is that both the

defendant and his counsel have the right

to be present at all stages of the trial,

ali-

from arraignment to verdict and discharge

of the jury. Fed, R. Crim. P. 43; Rogers

v. United States, 422 U.S. 35, 38-39 1575);

Polizzi v. United States, 550 F.2d 1133, 1137

(9th Cir. 1976). However,

the existence of a right tote

present depends upon a conclu-

sion that absence could, under

some set of circumstances, be

harmful. Due process does not

assure “the privilege of presence .

when presence would be useless,

or the benefit but a shadow."

Snyder v. Massachusetts, 1934,

291 U.S. 97, 106-107, 54 S.Ct.

330, 332, 78 L.Ed. 674 (Cardozo, J.).

Polizzi v. United States, supra, 550 F.2d

at 1138. Thus, a failure to comply with

the presence rule does not call for auto-

matic reversal.

[E]ven improper exclusion of a

defendant from a "critical" por-

tion of the trial does not auto-

matically require reversal, if

in the particular case the de-

fendant's absence was harmless

beyond a reasonable doubt.

[Citations omitted. ]

Polizzi v. United States, supra, 550 F.2d

at 1138.

In the instant case, the trial judge

gave Juror Bruhn no information which could

have influenced the guilty verdict ultimately

returned by the jury. Indeed, the trial

judge went so far as to assure Bruhn that

@12-

if he believed in appellant's innocence,

he could continue to vote his conscience

because a mistrial due to a hung jury

was not an uncommon occurrence. (RT 318).

The conference was held in the presence

of appellant's counsel and was placed

on the record. No objections to the

propriety of the conference was raised

although appellant's counsel was given

an explicit opportunity to do so. (RT 318).

Under these circumstances, the absence

of appellant from the in-chambers con-

ference was not critical and, even if

erroneous, was harmless beyond a reason-

able doubt.

Appellant also charges that it was

an error for the trial judge to refuse

defense counsel permission to ask the

foreman of the jury if Juror Bruhn had

made any comments to the jury about his

conference in chambers. (RT 321). This

was not error. Nothing said at that

conference was prejudicial and defense

counsel waived objection to Juror Bruhn's

rdurning to the deliberations. Further-

more, permitting inquiry into whether

the in-chambers conference was discussed

by the jury could well have involved the

jurors in an impermissible effort to im-

peach their own verdict.12/ See peg, pr.

Evid. 606(b); United States v. Weiner,

F.2d (9th Cir. May 15, 1978),

Slip op'n at 1584,

F. EFFECTIVE ASSISTANCE OF COUNSEL

The standard for measuring effective

assistance of counsel is a matter of some

uncertainty in this Circuit pending the

en banc decision in Cooper v. Fitzharris,

551 F.2d 1162 (9th Cir. 1977), petition

-l13-

for rehearing en banc granted July 5, 1977.

At one end of the spectrum lies the tradi-

tional farce or mockery test. 551 F.2d

at 1165. At the other end lies the

standard adopted in Cooper of failure to

render reasonably effective assistance.

551 F.2d 1166. We are convinced that,

despite appellant's objections, defense

counsel would be considered to have rendered

effective assistance under any test which

this Court may ultimately choose. For

example, appellant argues that he is en-

titled to a judgment of acquittal because

his counsel failed to object when the

prosecution was permitted to introduce a

photostat, rather than the original, of

the quitclaim deed given to Mrs. Bjerke

as security for her $20,000 loan to ap~-—

pellant. But, absent any genuine question

as to the authenticity of the original, the

photostat was properly admitted. Fed. R.

Evid. 1003. Appellant also claims that

defense counsel should have demonstrated

to the jury that appellant had never ben

in Alaska and therefore could not have

transported $10,000 from Alaska to Arizona.

However, as previously discussed, deposit-

ing the Alaska check in an Arizona bank

created sufficient interstate commerce to

bring appellant's actions within the

prohibition of 18 U.S.C. § 2314.

Appellant's other claims of attorney

misfeasance are equally without merit.

Appellant's Sixth Amendment rights were

not violated.

We need not reach appellant's argu-

ments regarding Count I. This Circuit

follows the concurrent sentence doctrine

atéu

of Benton v. Maryland, 395 U.S. 784,

791 (1969), under which a federal ap-

pellate court, as a matter of discretion,

may decide that it is unnecessary to

consider arguments advanced by an ap-

pellant with regard to his conviction

under one count of an indictment if he

was validly convicted under another

count and concurrent sentences were

imposed. United States v. Moore, 452

F.2d 576, 577 (Sth Cir. IS71). Whether

this Court decides that consideration of

certain arguments is unnecessary under

the concurrent sentence doctrine depends

upon the determination, in the exercise

of the Court's discretion, that the con-

victions which would not be examined will

not entail adverse collateral legal con-

sequences for the appellant. Id.

Appellant was sentenced to five years

on each of two counts, the sentences to

run concurrently. (CT 156). A $5,000 fine

was imposed only as to Count II. Appellant

has not suggested, and we do not perceive

any collateral legal consequences adverse

to appellant, over and above those flowing

from his conviction on Count II, will result

if the conviction on Count If is allowed to

stand without appellate review. We accord-

ingly decline, in the exercise of our dis-

cretion, to consider appellant's arguments

insofar as they are directed solely to

Count I of the indictment.

CONCLUSION

The judgment as to Count II is affirmed.

In the exercise of our discretion, we de-

Cline to consider appellant's arguments

directly solely to the conviction under

=} 5=

Count I. The Clerk will issue the man-

date forthwith. Enlargement on bail is

revoked now if appellant is still on bail.

No petition for rehearing will be enter-

tained. See Fed. R. App. P. 2.

FOOTNOTES:

ie

§ 1341. Frauds and Swindles

Whoever, having devised or

intending to devise any scheme of

artifice to defraud, or for ob-

taining money or property by means

of false or fraudulent pretenses,

representations, or promises, or

to sell, dispose of, loan, exchange,

alter, give away, distribute, sup-

ply, or furnish or procure for un-

lawful use any counterfeit or

Spurious article, for the purpose

of executing such scheme or arti-

fice or attempting so to do, places

+ « »« any matter or thing whatever

to be sent or delivered by the

Postal Service, .. . or knowingly

causes to be delivered by mail ac-

cording to the direction thereon,

or at the place at which it is

directed to be delivered by the

person to whom it is addressed, any

such matter or thing, shall be fined

not more than $1,000 or imprisoned

not more than five years, or both.

As amended May 24, 1949, c. 139; §34

63 Stat. 94; Aug. 12, 1970, Pub.L. 9l-

375, §6(}) (11), 84 Stat. 778.

-~16-

Re

§ 2. Principals

(a) Whoever commits an of-

fense against the United States or

aids, abets, counsels, commands, in-

duces, or procures its commission,

is punishable as a principal.

(b) Whoever willfully causes

an act to be done which if directly

performed by him or another would

be an offense against the United

States, is punishable as a princi-

pal. As amended Oct. 31, 1951, c.

655, § 17b, 65 Stat. 717.

3.

§ 2314. Transportation of stolen

goods, securities, moneys, fraudu-

lent State tax stamps, or articles

used in counterfeiting

Whoever transports in inter-

state .. . commerce any...

securities or money, of the value

of $5,000 or more, knowing the same

to have been stolen, converted or

taken by fraud; or

Whoever, having devised or in-

tending to devise any scheme or

artifice to defraud, or for obtain-

ing money or property by means of

false or fraudulent pretenses,

representations, or promises, tans-

ports or causes to be transported,

- « « in interstate commerce in the

execution or concealment of a scheme

or artifice to defraud that person

ofmoney or property having a value

of $5,000 or more; ...

wi Pe

Trustee, and Cecil Uglow and

Helen E. Uglow, his wife, as

joint tenants, covering five

parcels of land to secure a

$22,000 promissory note.

Shall be fined not more than

$10,000 or imprisoned not more .

than ten years, or both.

This section shall not apply

falsely made, forged,

i fee counterfeited or spurious Item 2 (Def. Exh. A): Power of Attorney

n of an obligation or dated 9/23/71 (never witnessed,

be gre ce ke ny} States, acknowledged, or recorded),

or of an obligation, bond, certifi- granted by Harley R. Walls and

cate, security, treasury note, bill, Margaret Walls to Kenneth Walls

promise to pay or bank note issued (the appellant). No description

by any foreign government or by a Or reference to any specific real

bank or corporation of any foreign property is made.

: mended May 24, 1949

songs , ib. Gs etal 36; duly 9! Item 3 (Gov. Exh. 6): Certified copy of

1956, c. 519, 70 Stat. 507; Oct. 4, Grant Deed from the Mohengs to

1961, Pub L. 87-371, § 2, 75 Stat. . Harley Walls, dated 12/13/71;

802; Sept. 28, 1968, Pub. L. 90-535, acknowledged 12/13/71; recorded

82 Stat. 885, 1/7/72, 2:21 p.m., covering the

° same five parcels listed in Item

he Supra.

Item 4 (Gov. Exh. 9): Certified copy of

Deed of Trust from Harley R. Walls

4,

In recounting the facts, it is

important to understand (1) the dates

on which certain documents introduced

in evidence were allegedly prepared,

delivered, and recorded; and (2) the

fact that while some of the documents

and Margaret Petts Walls, his wife,

to Calaveras Title Co., and the

Mohengs, as beneficiaries, dated

10/26/71; acknowledged 12/13/71;

recorded 1/7/72, 2:25 p.m., covering

the same five parcels listed in Items

relate to a group of five parcels of real

Property, other documents refer only to

one parcel (i.e., Parcel Three, Lot 4,

Block 1), or to no specific parcels. We

therefore list chronologically the exhibits

in the record:

1 and 3, supra.

Item 5 (Gov. Exh. 8): Certified copy of

Request for Notice of Default under

Deed of Trust (Item 1, Gov. Exh. 7,

Supra), filed by the Mohengs, dated

/71; acknowledged 10/30/71;

recorded 1/7/72, 2:21 p.m., covering

the same five parcels listed in Items

° 1, 3, and 4, supra.

Item 1 (Gov. Exh. 7): Certified copy

of Deed of Trust dated 10/7/68,

recorded 10/23/68, executed by

Wilbur W. Moheng and Martha Moheng,

his wife, to Calaveras Title Co.,

=19=

o1§=

Item 6 (Gov. Exh. 1): Photostat of

promissory note, dated 12/20/71,

secured by assignment of "mineral

‘rights" to property legally

described as "Lot #4, of Block

#1" (being “Parcel Three" of the

five parcels described above).

Item 7 (Gov. Exh. 3): Cancelled Alaska

bank check, made by Violet E.

Bjerke and endorsed by Kenneth

Walls, daed 12/20/71, in the amount

of $10,000, paid 12/27/71.

Item 8 (Gov. Exh. 4): Cancelled Arizona

bank check, made by Violet E.

Bjerke and endorsed by Kenneth

Walls, dated 12/20/71, in the

amount of $10,000 paid 12/20/71.

Item 9 (Gov. Exh. 2): Certified copy of

original quitclaim deed, dated

12/20/71; acknowledged 12/20/71;

executed by Kenneth W. Walls, the

appellant, before Joseph C. Raineri,

notary public; recorded 1/24/72 at

the request of Mrs. Bijerke.

Item 10 (Gov. Exh. 5): Certified photo-

static copy of Item 9, supra.

5.

Technically, appellant also raised

a claim that he was denied his right to a

speedy trial. Appellant's Brief at 4. How-

ever, this issue was not argued and we con-

sider it to have been abandoned. Further,

it has no merit.

=20=

6.

Very obviously, Mrs. Bijerke was a

poor witness in her own behalf. She did

not know if there were two papers signed by

appellant Walls (promissory note and quit-

Claim deed) or whether $25,000 or $20,000

was to be paid to her on January 2, 1972.

However, the exhibits on file speak to the

fact that there were two documents, that

Mrs. Bjerke did pay appellant $20,000 and

that $25,000 was owed her by appellant, as

his note states.

While the appellant's signatures on

the deed and the note differ because of his

use of a middle name in one, and not in the

other, no question would be raised by an

average person, after examining the two

Signatures, as to whether the same person

had signed them.

7.

Appellant argues that there was no

proof that he had the requisite specific

intent to defraud or lack of good faith.

This is a question for the trier of fact.

Intent to defraud can be specifically ad-

mitted or confessed. United States v.

Jones, 425 F.2d 1048, 1058 (9th Cir.),

cert. denied, 400 U.S. 823 (1970). Where

intent to defraud has been charged in the

indictment, instructed upon and found by

the jury, we cannot say that the evidence

of intent was insufficient. Id. Further-

more, even if appellant did not adually

know that his representation was false, he

could have been found by the jury to have

acted in reckless disregard of the truth or

falsity of his statements, which is suf-

ficient to charge a defendant with knowing

-2l1-

falsity. United States v. McDonald,

F.2d (9th Cir. May 4, 1978)

slip op'n at p. 1431.

8.

In December, 1971, appellant borrowed

$20,000 from Ensyne Clark, after telling

Clark that he was buying property in Alaska

from a lady named Campbell. Clark was never

repaid. In February, 1977, the appellant

told Clark he used the $20,000 to repay a

lady in Mesa, Arizona. (RT 124-129). Ap-

pellant later told Mr. Clark that he would

be paid in February, 1972. Mr. Clark has

never been repaid. (RT 128-29).

In the spring of 1975, appellant

borrowed $9,500 from Claude Haynes on ap-

pellant's representation it was to be used

to promote the sale of a ranch in California.

Mr. Haynes has received back $1,400, and

is owned the balance. Appellant represented

to Mr. Haynes that the balance would be paid

upon the closing of the purchase of the ranch.

The sale negotiations for the ranch began

in March, 1975. (RT 132-137).

9.

The jury was instructed to consider

similar transactions in determining whether

appellant acted in good faith or with intent

to defraud. (RT 305-306). However, the use

of similar transactions was not specificdly

restricted to the uses set forth in Fed. R.

Evid. 404(b).

2 Den

10.

THE COURT: I can't argue with you,

Mr. Bruhn. All I can tell you is

that you go in the jury room with the

other eleven jurors and you vote your

conviction. If you feel that he is

not guilty of the charge, then you

should hold out for not guilty. If

you become convinced that he is guilty

of the particular charge -- that is

all he is on trial for, is what he is

charged with -- then you will have to

vote your conscience, vote it as you

see the evidence, but I can't explain

to you any further. I cant tell you

what to do. I can't tell you what I

think of the evidence. I can't tell

you what I think of the case or any-

thing else. That is not my job nor my

prerogative. [RT 316-317].

ll.

THE COURT: The only reason I would

call a mistrial other than for some

misconduct that may happen that would

require a mistrial, would be if the

jury can't agree, and if the jury

can't agree, then we will declare a

mistrial and, unless the government

dismisses the case, we will try it

again with a different jury.

[RT 317].

hae

All that the foreman could have testi-

fied to was the fact that Bruhn had partici-

pated in the in-chambers conference; he would

=? 30

not have been permitted to testify as to -

how that conference affected the jury's

mental processes in arriving at a verdict.

Mattox v. United States, 146 U.S. 140, 149 a

(1892). But the fact that the conference

had occurred was obviously well known to

both counsel who had been present. Thus,

no lawful purpose would have been served

by permitting interrogation of the fore-

man in the manner requested by defense

counsel.

~ Te

APPENDIX "B"

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT FILED

JUN 301978

W.J. FURSTENAU, CLERK

UNITED STATES DIST MURT

FOR THE DISTRICT OF ARIZ

UNITED STATES OF AMERICA

Plaintiff-Appellee,

]

]

]

]

] 77-2089

vs. ]

] DC #CR 76-473 WPC

KENNETH WAYNE WALLS, ]

]

Defendant-Appellant. |]

APPEAL from the United States District

Court for the District of ARIZONA (PHOENIX)

THIS CAUSE came on to be heard on the

Transcript of the Record from the United

States District Court for the

District of ARIZONA (PHOENIX)

and was duly submitted.

ON CONSIDERATION WHEREOF, it is now here

ordered and adjudged by this Court, that the

A TRUE COPY

ATTEST JUN 28 1978

EMIL E. MELFI, JR.

Clerk of Court

by: /s/

Deputy Clerk

Filed and entered June 28, 1978.