Petition — Smith v. United States

Supreme Court, U.S.

FILED

DEC 20 1980

80-1005

| MICHAEL RODAK, JR., CLERK

In the Supreme Cou

OF THE

United States

Octoser TERM, 1980

Lance Louis SMITH,

Petitioner,

VS.

UniItep STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Goorsian & McCabe

J. Frank McCasBe

500 Sansome Street, Suite 212

San Francisco, CA 94111

Telephone: (415) 397-1757

Attorneys for Petitioner

BOWNE-PERNAU WALSH * 1045 SANSOME ST. ¢ S.F., CA 94111 © (415) 961-7862

QUESTIONS PRESENTED FOR REVIEW

3

Whether Congress clearly intended that a criminal de-

fendant who forcibly enters a post office, then imme-

diately takes government property therefrom, then imme-

diately assists in the removal of that property away from

the post office, and later that property is transported inter-

state by another without the defendant’s knowledge can

be convicted of, and consecutively sentenced under, 18

U.S.C. § 2115 (post office burglary), 18 U.S.C. § 641 (theft

of government property) and 18 U.S.C. § 2314 (interstate

transportation of stolen property).

Il.

Whether the prosecutor’s repeated violations of the trial

court’s rulings by deliberately introducing evidence which

violated the Bruton rule conflicted with decisions of this

Court and the Fifth Circuit and denied petitioner due

process of law.

lil

TABLE OF CONTENTS

Page

Questions presented for reVieW ........ceccccscesecseseeeccesceeeeee i

omens OF Gib: NO ii i ee eae 2

IUCN UE a incas en ssisssiaobuscecestones cease 3

Reasons for granting the WYit .................-..c.cccsccssescsoseeaseeee 5

1. The ruling of the court below that petitioner

could stand convicted and consecutively pun-

ished for post office burglary, theft of property

from inside that post office and interstate trans-

portation of that property conflicts with deci-

sions of this Court which hold that appellate

courts must determine whether Congress in-

tended to subject a defendant to multiple

prosecutions for a single criminal transaction

and, where there is an ambiguity, must resolve

Godnt in favor Of 1emtty .onccciccsccceeuensiaian 5

2. The prosecutor’s repeated violation of the trial

court’s rulings by deliberately introducing evi-

dence which violated the Bruton rule conflicts

with decisions of this Court and the Fifth

Circuit and denied petitioner due process of law 9

FT eR We MR NLU RS SN Re 12

_ PREVIOUS PAGE WAS BLANK

iv

TABLE OF AUTHORITIES CITED

Cases

Page

Bell v. United States, 349 U.S. 81 (1955)... 8

Berger v. United States, 295 U.S. 78 (1935) -................. 12

Bruton v. United States, 391 U.S. 138, 88 S.Ct. 1620,

a ee i peiciteeri si ndiendegutetectnscotenaslonnd i, 9

Giglio v. United States, 450 U.S. 150 (1972) ............. 11, 12

Ladner v. United States, 358 U.S. 169 (1958) -............. 8

Mooney v. Holohan, 294 U.S. 103 (1935) —202 1]

Morgan v. Devine, 237 U.S. 632 (1915) ...22.0.....eeeeeeeeseee 6, 7

Napue v. Illinois, 360 U.S. 264 (1959) 00 11

Pyle v. Kansas, 317 U.S. 213 (1942) 20. eeeeeee 11

Rewis v. United States, 401 U.S. 808 (1971) -....0020... 8

Simpson v. United States, 435 U.S. 6 (1978) ...000.. 6,8

United States v. Bass, 404 U.S. 336 (1971) -..00020... 8

United States v. Patten, 345 F.Supp. 967 (D.P.R.1972) 7

United States v. Roselli, 432 F.2d 879 (1970), cert.

Miata, TE TEs OG CE Sosdeiitnn i cccsnebccnsniyectarcrecnanise 7

United States v. Sheridan, 329 U.S. 379 (1946) ......0.... 6

United States v. Simmons, 414 F.2d 800 (9th Cir. 1969) 11

United States v. Whimpy, 531 F.2d 768 (5th Cir. 1976) 11

Statutes

18 U.S.C.:

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REET ARTS fPRS RE DRI TES Re PO i, 2, 4, 6, 7

RNIN, SUN Veco cians eedstnrascasooihagultviicealspassepsnconmeseaeise 1, 2, 4, 6, 7

No.

In the Supreme Court

OF THE

United States

Octoser Term, 1980

Lance Louis SMITH,

Petitioner,

vs.

Unitep States or AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

2

STATEMENT OF THE CASE

Petitioner Jiance Louis Smith was charged along with

four others, Samuel Bailey, William Eggers, Robert Moore

and Frank Roza, Jr., in a ten-count indictment filed in the

United States District Court for the Northern District of

California on March 13, 1979 (C.R 14). Smith was charged

in only three of the ten counts. Count three alleged that

he, along with Bailey, Eggers and Moore, forcibly broke

into the United States post office in Martinez, California,

with intent to commit larceny on January 1, 1978 in viola-

tion of 18 U.S.C. § 2115. Count four charged that the same

four men stole postage stamps, food coupons, and currency

valued at approximately $119,000 on the same day at the

same place in violation of 18 U.S.C. 4 641. In count five,

the same men were charged with transporting the same

items in interstate commerce from Martinez, California to

Nevada, knowing them to have been stolen, in violation of

18 U.S.C. § 2314.

Petitioner was tried by a jury before District Judge

Stanley A. Weigel between May 15 and 25, 1979, along

with Bailey, Moore and Roza. After having been granted

immunity, Eggers testified for the government, and the

indictment was dismissed as to him. He testified that he

and Bailey entered the Martinez, California, post office

by force while Moore and petitioner Smith acted as look-

outs. They took postage stamps and food stamps from the

post office and immediately thereafter drove to his

(Eggers’) residence at South Lake Tahoe, California. Peti-

1In this Petition, C.R. refers to the Clerks Record on Appeal and

R.T. refers to the Reporter's Transcript on Appeal.

3

tioner, an alcoholic, then went off and got drunk. The next

day Eggers drove Bailey to Carson City, Nevada where

the stamps were apparently fenced by Roza (2 R.T. 231,

244, 251-263, 266-268, 271-275). Petitioner took the stand

at trial and specifically denied any involvement in the

crimes described by Eggers (6 R.T. 968-973).

The jury found petitioner guilty on all three counts (C.R.

200-203). On June 28, 1979, he was sentenced to the custody

of the Attorney General for a period of five years on the

burglary count, three years on the theft of government

' property charge, and two years on the interstate transpor-

tation count, each of the sentences to run consecutively

(C.R. 235, 244). His judgment of conviction was affirmed

by the Ninth Cireuit Court of Appeals on October 23, 1980

(See Appendix A). He is presently serving his sentence.

STATUTES INVOLVED

18 U.S.C. § 641 reads as follows:

Whoever embezzles, steals, purloins, or knowingly

converts to his use or the use of another, or without

authority, sells, conveys or disposes of any record,

voucher, money, or thing of value of the United States

or of any Cepartment or agency thereof, or any prop-

erty made or being made under contract for the United

States or any department or agency thereof; or

Whoever receives, conceals, or retains the same with

intent to convert it to his use or gain, knowing it to

have been embezzled, stoien, purloined or converted—

Shall be fined not more than $10,000 or imprisoned

not more than ten years, or both; but if the value of

such property does not exceed the sum of $100, he

4

shail be fined not more than $1,000 or imprisoned not

more than one vear, or both.

The word “value” means face, par, or market value,

or cost price, either wholesale or retail, whichever is

greater.

18 U.S.C. § 2115 reads as follows:

Whoever forcibly breaks into or attempts to break

into any post office, or any building used in whole or

in part as a post office, with intent to commit in such

post office, or building or part thereof, so used, any

larceny or other depredation, shall be fined not more

than $1,000 or imprisoned not more than five years, or

both.

18 U.S.C. § 2314 reads as follows:

Whoever transports in interstate or foreign com-

merce any goods, wares, merchandise, 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 intending to devise any

scheme or artifice to defraud, or for obtaining money

or property by means of false or fraudulent pretenses,

representations, or promises, transports or causes to

be transported, or induces any person to travel in, or

to be transported in interstate commerce in the exe-

cution or concealment of a scheme or artifice to de-

fraud that person of money or property having a value

of $5,000 or more; or

Whoever, with unlawful or fraudulent intent, trans-

ports in interstate or foreign commerce any falsely

made, forged, altered, or counterfeited securities or tax

stamps, knowing the same to have been falsely made,

forged, altered, or counterfeited; or

5

Whoever, with unlawful or fraudulent intent, trans-

ports in interstate or foreign commerce any traveler’s

checks bearing a forged countersignature; or

Whoever, with unlawful or fraudulent intent, trans-

ports in interstate or foreign commerce, any tool, im-

plement, or thing used or fitted to be used in falsely

making, forging, altering, or counterfeiting any secur-

ity or tax stamps, or any part thereof—

Shall be fined not more than $10,000 or imprisoned

not more than ten years, or both.

This section shall not apply to any falsely made,

forged, altered, counterfeited or spurious representa-

tion of an obligation or other security of the United

States, or of an obligation, bond, certificate, security,

treasury note, bill, promise to pay or bank note issued

by any foreign government or by a bank or corpora-

tion of any foreign country.

REASONS FOR GRANTING THE WRIT

1. The ruling of the court below that petitioner could

stand convicted and consecutively punished for post

office burglary, theft of property from inside that post

office and interstate transportation of that property

conflicts with decisions of this Court which hold that

appellate courts must determine whether Congress in-

tended to subject a defendant to multiple prosecutions

for a single criminal transaction and, where there is

an ambiguity, must resolve doubt in favor of lenity

Petitioner aided and abetted the breaking and entering

of a post office, the theft of stamps therefrom and the get-

away from the scene of the crime. Later the stamps were

6

transported interstate without evidence of petitioner’s as-

sistance or his knowledge. The Ninth Circuit affirmed all

three judgments of conviction, ruling that there was suffi-

cient evidence to convict petitioner for 18 U.S.C. ¢ 2314

and, relying on Morgan v. Devine, 237 U.S. 632 (1915),

that the conviction under 18 U.S.C. § 2115 did not merge

into the 18 U.S.C. § 641 conviction.

Petitioner’s conduct, however, was undeniably a single

criminal episode or transaction and the decision of the

court below conflicted with this Court’s decision in Simpson

v. United States, 435 U.S. 6 (1978), as it failed to “deter-

mine whether Congress intended to subject the defendant

to multiple penalties for the single criminal transaction in

which he engaged.” Jd. at 12.

Petitioner suggests that Congress, in enacting 18 U.S.C.

§ 2314, intended to prosecute offenders for interstate trans-

portation of stolen property im liew of prosecution for such

crimes as theft or embezzlement or possessing or receiving

that stolen property in situations where federal prosecutors

lacked federal jurisdiction to prosecute for those other

offenses. There is nothing to indicate that Congress in-

tended to prosecute offenders for interstate transportation

in addition to federal burglary and theft statutes as was

done here, let alone punish offenders consecutively for in-

terstate transportation.

This Court, in discussing the predecessor statute to Sec-

tion 2314, stated in United States v. Sheridan, 329 U.S.

379, 384 (1946), that Congress “contemplated coming to

the aid of the states in detecting and punishing criminals

whose offenses are complete under state law, but who

7

utilize the channels of interstate commerce to make a suc-

cessful getaway and thus make the state’s detecting and

punitive processes impotent.’”

Following the logic of the court below, any burglar, rob-

ber or thief who carried his stolen property away from the

scene of the crime—and this would include virtually every

offender as no offender remains at the scene—also could

be punished for violating 18 U.S.C. § 2314 as long as his

property eventually was transported interstate. This was

not the intent of Congress in enacting Section 2314. Con-

gress’ intent was to prosecute a class of offenders who had

otherwise evaded prosecution—not to pyramid an addi-

tional charge upon offenders who were already subject to

federal prosecution.

Similarly and notwithstanding Morgan v. Divine, supra,

decided two-thirds of a century ago, there is no evidence

that Congress clearly intended to pyramid punishments for

the single criminal transaction of burglary of a post office

and theft of property therefrom. A clear legislative intent

should be required before courts are permitted to construe

Sections 2115 and 641 to authorize consecutive sentencing

of a successful post office burglar.

*The Ninth Circuit in United States v. Roselli, 432 F.2d 879, 892

(1970), cert. denied, 401 U.S. 924 (1971), wrote: “Suppression of

movement of the fruits of theft and fraud is only the means to the

end of suppressing theft and fraud themselves. The sole reason for

conditioning the statutes’ prohibitions upon use of interstate com-

merce is to provide a constitutional basis for the exercise of fed-

eral power.” See also United States v. Patten, 345 F.Supp. 967,

968 (D.P.R. 1972).

8:

At best, Congress’ intent with regard to these statutes is

ambiguous. Thus, the ruling of the court below conflicts

with a long line of decisions of this Court which have held

that “if Congress does not fix the punishment for a federal

offense clearly and without ambiguity, doubt will be re-

solved against turning a single transaction into multiple

offenses.” Bell v. United States, 349 U.S. 81, 84 (1955). See

also Simpson v. United States, supra, 435 U.S. at 15; Lad-

ner v. United States, 358 U.S. 169 (1958).

The ruling further conflicts with the Court’s oft-repeated

rule that “ambiguity concerning the ambit of criminal

statutes should be resolved in favor of lenity.” Simpson,

supra, at 14; United States v. Bass, 404 U.S. 336, 347

(1971); Rewis v. United States, 401 U.S. 808, 812 (1971).

This Court said in Ladner, supra: “This policy of lenity

means that the Court will interpret a federal criminal

statute so as to increase the penalty that it places on an

individual when such an interpretation can be based on

no more than a guess as to what Congress intended.” 358

US. at 178.

Petitioner Smith thus respectfully asks this Court to

grant his petition and resolve the question of whether Con-

gress intended for punishment under these three federal

statutes to be pyramided where the underlying course of

conduct and criminal intent is, as here, continuous and in-

divisible.

OS RT ne ene ee ee ee

9

2. The prosecutor’s repeated violations of the trial court’s

rulings by deliberately introducing evidence which

violated the Bruton rule conflicts with decisions of

this Court and the Fifth Circuit and denied petitioner

due process of law

At trial, the prosecution indicated its intent to introduce,

through the testimony of its final witness, one Namahoe,

evidence that co-defendant Bailey had hired Namahoe to

murder co-defendant-turned-informant Eggers (See 5 R.T.

719-720). Following a lengthy hearing outside the presence

of the jury, the trial court quite properly ruled that this

evidence was inadmissible and ordered that Namahoe’s tes-

timony be specifically limited to an express admission of

guilt by a defendant (6 R.T. 898-901). The court then gave

the prosecutor a recess to carefully prepare his examina-

tion of Namahoe, avoiding the inadmissible testimony, and

to instruct the witness to obey the court’s ruling (6 R.T.

904).

Once Namahoe took the stand, the court’s ruling was im-

mediately violated by Namahoe’s testimony that Bailey

had talked about Koza and petitioner Smith (6 R.T. 907-

908).

Upon defense counsel’s motion, the court ordered the

answer stricken, admonished the jury to disregard it, and

again suggested the prosecutor elicit admissible evidence

“by more careful questions” (6 R.T. 910).

&*

However, instead of obeying, the prosecutor asked Na-

mahoe what Bailey had said to him, and Namahoe re-

sponded :

10

“Mr. Bailey told me that in part of the indict-

ment he had looked at it that he, Robert Moore, and

Bill Eggers have transported the stamps that they

took from a burglary into Idaho and that Lannie

Smith was not the person who helped them transport

it there, and that he felt at that time, after reading

that section of the indictment, that Bill Eggers had

ratted on them.” (6 R.T. 911).

Defense counsel immediately moved to strike the testimony,

moved for a mistrial and for a hearing to determine

whether the prosecution knowingly elicited that testimony

(R.T. 911-912). Judge Weigel denied the latter two motions

but did admonish the jury to disregard the testimony (6

R.T. 912).

Later in the day, the court reconsidered the defense

request to investigate the prosecutor’s prior knowledge of

Namahoe’s testimony. The prosecutor, Mr. Webb, readily

admitted that “I knew the answer he was going to give

was going to be given... .” (6 R.T. 940). The following

also took place:

The Court: “The question I have in mind for you,

Mr. Webb, is, did you have reason to believe that the

answer would be as it is now going to be read to you?:

“Did you anticipate that answer?”

Mr. Webb: “Yes, your honor.”

The Court: “Counsel, I am at a total loss to under-

stand how you could possibly have put the witness

on the stand and elicited that answer under the Bruton

Rule. I am at a total loss to understand it. You had

a strong case, in my opinion, you still have a strong

case. What did vou do that for?”

Mr. Webb: “I was not thinking.” (6 R.T. 941).

ae

11

The court then instructed the jury to disregard the entire

testimony of Namahoe (6 R.T. 944-946).

A long line of cases of this Court have required reversal

of a criminal conviction when the trial is infected by the

prosecution’s introduction of known false evidence under

the theory that the accused is denied his constitutional

right to due process of law.

See, e.g., Giglio v. United Stutes, 405 U.S. 150 (1972);

Napue v. Illinois, 360 U.S. 264 (1959); Pyle v. Kansas,

317 U.S. 213 (1942); Mooney v. Holohan, 294 U.S. 103

(1935). The prosecution’s introduction of known inadmis-

sible evidence is equally prejudicial to a defendant and

equally violative of his constitutional right to due process

of law.

Few cases of any federal court have considered this

precise problem. The decision in the most analogous case

conflicts with the decision below. In United States v.

Whimpy, 531 F.2d 768 (5th Cir. 1976), before a witness

testified, the prosecutor advised the trial court what he

would say, but the prosecuter then, as here, either led or

allowed the witness to stray into an area which was un-

questionably prejudicial to the defendant’s case. The court

of appeals ruled that the prosecutor erred in conducting

the examination in a way which was in direct conflict with

the ruling of the trial judge. As the statements and

their effect could not be erased by the judge’s instruction

to disregard the witness’ testimony, the appellate court

reversed the judgment of conviction. See also United States

v. Summons, 414 F.2d 800 (9th Cir. 1969),

7 12

Petitioner respectfully requests this Court to grant this

petition to resolve this conflict and to consider this im-

portant issue in light of the Giglio line of cases. Moreover,

this is an appropriate case for the Court to exercise its

supervisory powers over the administration of criminal

justice to examine the prosecutor’s conduct in light of the

standards set forth in Berger v. United States, 295 U.S.

78 (1935), and its progeny.

CONCLUSION

For the foregoing reasons, petitioner respectfully sug-

gests that a writ of certiorari should issue in this case.

Dated: December 19, 1980.

Respectfully submitted,

Goors1an & MoCaBe

J. Frank McCase

Attorneys for Petitioner

(Appendices Follow)

Appendix A

In the United States Court of Appeals

For the Ninth Circuit

Nos. 79-1487, 79-1491, 79-1493, 79-1518

D.C. No. CR-79-36-SA W

;

United States of America,

Plaintiff-A ppellee,

VS.

i. a

Samuel Gayle Bailey, Lance Louis Smith,

Frank Vernon Roza, Jr., Robert Gary

Moors,

Defendants-A ppellants.

[Filed October 23, 1980]

On Appeal from the United States District Court

for the Northern District of California

The Honorable Stanley A. Weigel, Presiding

Argued and submitted June 10, 1980

Before: ANDERSON and FARRIS, Circuit Judges, and

RICHEY,* District Judge.

MEMORANDUM

The defendants appeal their convictions on a multicount

indictment for various crimes arising from a series of

*The Honorable Mary Anne Richey, United States District Judge,

District of Arizona, sitting by designation.

A-2

burglaries of United States Post Offices located at various

locations in California and Washington. Bailey was con-

victed on separate counts of violations of 18 U.S.C. § 1962

(c) (racketeering), 18 U.S.C. § 2115 (postal burglary), 18

U.S.C. § 641 (theft of government property), and 18 U.S.C.

§ 2314 (interstate transportation of stolen property). Smith

was convicted on three counts of postal burglary, theft of

government property, and interstate transportation of

stolen property. Roza was convicted on two racketeering

counts, two transportation of stolen property counts, and

one count of receiving stolen property in violation of 18

U.S.C. § 2315. Moore was convicted of racketeering, postal

burglary, theft of government property, and transportation

of stolen property.

We affirm.

I. CROSS-EXAMINATION OF WITNESS EGGERS

Bailey and Smith raise as potential error the limitation

of the cross-examination of chief prosecution witness Wil-

liam Paul Eggers. The trial court did not allow defense

counsel to question Eggers regarding certain specific

crimes which he might have committed after he began to

cooperate with the government in the prosecution which

led to the present appeal. Cross-examination of Eggers

revealed his unsavory character and his propensity for

engaging in criminal activity. The defense attorneys were

also allowed to explore possible deals which Eggers may

have made with the government for lenient treatment in

unrelated investigations.

A-3

The scope of cross-examinations is a matter committed

to the sound discretion of the trial judge. E.g., Burr v.

Sullivan, 618 F.2d 583, 587 (9th Cir. 1980). In reviewing a

refusal by a trial judge to allow cross-examination on im-

peachment matters, we look to see whether the jury had

sufficient information to appraise the bias and motives of

a witness. Skinner v. Cardwell, 564 F.2d 1381, 1389 (9th Cir.

1977), cert. denied, 435 U.S. 1009, 98 S.Ct. 1883, 56 L.Ed.2d

392 (1978). Defendants here were afforded a sufficient

opportunity to probe the bias of Eggers by inquiring into

possible understandings with the government on specific

charges. Viewing the cross-examination of Eggers as a

whole, we observe that the defendants elicited a consider-

able amount of information which hardly placed the witness

in a favorable light. We find that defendants conducted an

effective cross-examination of Eggers and were not denied

the right to confrontation.

II. BRUTON VIOLATION

Smith, Roza, and Moore urge reversal of their convic-

tions on the ground that the prosecution deliberately elicited

testimony from the witness Namahoe which violated the

rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620,

20 L.Ed.2d 476 (1968). Namahoe in substance testified to

statements made by Bailey which arguably incriminated

the other three defendants. The government concedes that

Namahoe’s testimony violated Bruton, but argues on ap-

peal that the error was harmless beyond a reasonable

doubt.’

1For the purposes of this appeal, we assume that Namahoe’s testi-

mony constituted a denial of the defendants’ right to confrontation,

A4

While it is true that every Bruton violation does not

require reversal, we may affirm a conviction potentially

tainted by a Bruton error only if the evidence against the

defendant is overwhelming and the prejudicial effect of a

codefendant’s admission is so insignificant by comparison

that it is clear that admission of the statement was harm-

less beyond a reasonable doubt. See Parker v. Randolph,

442 U.S. 62, 70, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979) ;

United States v. Lutz, 621 F.2d 940, 947 (9th Cir. 1980).

Our review of the record indicates that this standard was

met as to each of the three objecting defendants. The testi-

mony of witness Escove clearly implicated Roza as the

fence for the stolen stamps, as did the presence of the

stamps in Roza’s Ferrari at the time of his arrest. The

testimony of witness Eggers described in minute detail

the involvement of Moore and Smith in the burglaries, and

the tape-recorded telephone conversations corroborated

much of Eggers’ testimony. While questions of Eggers’

credibility were raised, the jury resolved them in the gov-

ernment’s favor.

The defendants, however, have raised an additional prob-

lem in connection with the Bruton error. It is clear from

the record that the Assistant United States Attorney who

examined Namahoe knew in advance that the witness would

likely allude to statements by Bailey implicating the other

defendants. It is also clear that the government had been

and that the error requires evaluation under the “beyond a reason-

able doubt” standard. See United States v. Castillo, 615 F.2d 878

(9th Cir. 1980); United States v. Eaglin, 571 F.2d 1069 (9th Cir.

1977), cert. denied, 435 U.S. 906, 98 S.Ct. 1453, 55 L.Ed.2d 497

(1978).

A-5

instructed prior to Namahoe’s testimony to confine the evi-

dence only to statements made by Bailey which were admis-

sible against him. The district court held a hearing out

of the presence of the jury to determine whether the gov-

ernment had intentionally elicited the Bruton violative

statements. Government counsel there conceded that he

knew of the answer which Namahoe would likely give, and

explained that he “was not thinking” and concentrating

mainly on steering the witness away from giving testimony

implicating the others in an alleged conspiracy to murder

the witness Eggers. The trial court accepted counsel’s ex-

planation and struck all of Namahoe’s testimony, while

denying motions for a mistrial. The defendants argue that

the government’s knowing use of inadmissible evidence

requires reversal under the principle of United States v.

Whimpy, 531 F.2d 768 (5th Cir. 1976). The court below,

however, accepted counsel's explanation that the use of the

statement was inadvertent and occurred in the course of an

effort to avoid the introduction of other inadmissible evi-

dence. In the face of a clear finding by the trial court on

counsel’s state of mind, we are reluctant to second-guess

counsel’s motivations on appeal. While we admonish coun-

sel to observe all instructions from the bench and to avoid

scrupulously the use of inadmissible evidence, we do not

find that government counsel’s negligence here requires a

reversal. The use of the evidence was not deliberate in the

sense that the government hoped to sneak it past inatten-

tive defense counsel.

A-6

Ill. JOINDER AND SEVERANCE

Roza, Moore, and Smith argue that the trial court erred

in refusing to grant their motions for severance. Smith

challenges the original joinder under Fed. R. Crim. P.

8(b), and all three defendants challenge the failure to grant

severance under Fed. R. Crim. P. 14.

A. Original Joinder under Rule 8(b)

Smith argues that his original joinder with the other

defendants was improper under Rule 8(b) because he was

the only defendant not charged under a RICO count and

because a substantial an ount of the evidence adduced at

trial related to Roza’s fencing operation.

Under Rule 8(b), joinder is permissible so long as all

defendants participate in a series of acts constituting an

offense or offenses, even though not all defendants partici-

pated in every act constituting each joined offense. United

States v. Roselli, 432 F.2d 879, 899 (9th Cir. 1970), cert.

denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971).

The indictment here charged the defendants with an inter-

related series of illegal acts of which Roza’s fencing opera-

tion was an integral part. Furthermore, the evidence at

trial indicated that each of the acts charged was a portion

of an overall series of illegal transactions. We are satisfied

that Smith’s participation in the burglary operation was

sufficiently related to other acts charged in the indictment

to justify joinder under Rule 8(b). No error was committed

here.

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B. Severance Motions under Rule 14

Kach defendant claims error in denial of their severance

motions made at various stages of the proceedings. We can

overturn the trial court’s denial of a severance motion

only if the prejudice resulting is of such magnitude that

the defendant was denied a fair trial. See, e.g., United

States v. Escalante, ...... tiene , slip op. p. 2897 (April

29, 1980). We have examined the relevant portions of the

record and have found no basis for overturning the trial

court’s rulings. Each of the defendants has received a fair

trial. The court below did not abuse its discretion.

IV. RICO COUNTS

Moore and Roza each seek dismissal of the counts against

them arising from alleged violations of the Racketeer In-

fluenced and Corrupt Organizations Act (RICO), 18 U.S.C.

§ 1961, et seq.

Moore challenges the constitutionality of the definitions

of the word “enterprise” contained in $1961 (4) and the

phrase “pattern of racketeering activity” in § 1961 (5).

Moore’s argument, as is forthrightly conceded in his brief,

is foreclosed by our decision in United States v. Campanale,

518 F.2d 352, 363 (9th Cir. 1975), cert. denied, 423 U.S.

1050, 96 S.Ct. 777, 46 L.Ed.2d 638 (1976).

Roza’s claim that the statute does not apply to legitimate

business enterprises is similarly foreclosed by prior deci-

sions in this cireuit. See United States v. Rone, 598 F.2d

564 (9th Cir. 1979), cert. denied, ...... USS. ......, 100 S.Ct. 1345,

63 L.Ed.2d 780 (1980) ; United States v. Campanale, supra,

at 364. Roza also contends that the evidence was insufficient

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to sustain a conviction under RICO. Roza’s knowledge that

the stamps were stolen and his activities as the gang’s fence

are well documented in the record.

We affirm each of the convictions under RICO.

V. WARRANTLESS SEIZURE OF ROZA’S FERRARI

Roza challenges the constitutionality of the seizure of

his Ferrari in the Sacramento hotel parking lot. The postal

inspectors who arrested Roza impounded the automobile

and later searched it pursuant to a search warrant. At the

time that Roza was arrested, he was several hundred feet

away from the automobile, and it was legally parked in

a public lot. The inspectors impounded the car, acting upon

the tip of informant Escove, who had been told by Roza

that some $30,000 worth of stamps were located in the

trunk.

This court upheld the warrantless search of an automo-

bile under nearly identical circumstances in United States

v. McClain, 531 F.2d 431 (9th Cir.), cert. denied, 429 U.S.

835, 97 S.Ct. 102, 50 L.Ed.2d 101 (1976). Here, probable

cause was provided by Escove’s tip. Circumstances were

sufficiently exigent in that an accomplice could well have

moved the automobile or removed the stamps. The action

of the inspectors in securing the automobile pending issu-

ance of a search warrant was entirely proper.’

_.*Cases cited by Roza are inapposite. United States v. Hellman,

556 F.2d 442 (9th Cir. 1977), involved a warrantless inventory

search with no probable cause. Ramon v, Cupp, 423 F.2d 248 (9th

Cir. 1970), was predicated upon a warrantless search following im-

poundment after all possible exigencies had been precluded.

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VI. FORFEITURE OF THE FERRARI

The jury returned a verdict of forfeiture against Roza’s

Ferrari pursuant to 18 U.S.C. § 1963 (a)(1). The evidence

showed that Consolidated Coin Company was the deposi-

tory of funds which Roza had received from fencing the

stolen stamps, and that the Ferrari was purchased with

a $35,000 check drawn on Consolidated Coin’s account.

Roza challenges the sufficiency of this evidence to support

a verdict of forfeiture. The evidence was sufficient to

demonstrate that Consolidated Coin was an enterprise con-

ducted in violation of RICO. Because the Ferrari was pur-

chased with funds on deposit with Consolidated Coin, the

jury could properly find that it was an asset of Consoli-

dated Coin, even though purchased in the name of another.

The evidence therefore was sufficient to support the jury’s

verdict of forfeiture.

VII. LIMITATION ON CROSS-EXAMINATION

OF THE WITNESS ESCOVE

Roza’s claim that his ability to cross-examine the wit-

ness Joseph Escove was improperly limited is not sup-

ported by the record. Escove provided the names of sev-

eral dealers to whom he had sold the stolen stamps before

he announced his intention to name no others without an

order from the court. The trial court sustained the prose-

cution’s objection to further inquiry on relevancy grounds,

but left the matter open for Roza’s counsel to develop

later in the trial. Counsel did not avail himself of the

opportunity to reopen the issue. Roza’s argument as to

the possible relevancy of the testimony sought is specu-

lative and contradicted by Mscove’s direct testimony which

A-10

quite clearly identified Roza as the source of the stolen

postage stamps. The trial court’s ruling on the Escove

testimony was not in error.

VIL. SUFFICIENCY OF THE EVIDENCE

Smith challenges the sufficiency of the evidence to sup-

port his conviction under count five of the indictment for

causing the postage stamps stolen from the Martinez, Cali-

fornia, post office to be transported in interstate commerce

in violation of 18 U.S.C. 4 2314. Smith attacks the evidence

on two grounds: (1) there is no evidence that Smith phys-

ically “caused” the stamps to be transported across state

lines, and (2) there is no evidence that Smith knew that

the stamps were to be transported in interstate commerce.

Neither an intention to use interstate facilities nor

knowledge that they will be used is an element of a § 2314

offense. See, e.g., United States v. Masters, 456 F.2d 1060,

1061 (9th Cir. 1972). Smith’s lack of knowledge that the

stamps were to be transported across state lines is there-

fore irrelevant. The test for causation under § 2314 is

whether interstate transportation of stolen goods was a

reasonably foreseeable consequence of the defendant’s

actions. Masters, supra.

The evidence showed that Smith aided in the transpor-

tation of the stamps from the scene of the burglary to

Kggers’ home in South Lake Tahoe. After unloading and

inventorying the stamps, the defendants reloaded the

stamps into Bailey’s car, after being informed that Bailey

intended to take them to his fence. The movement of the

stolen stamps across state lines was thus a reasonably

A-11

foreseeable consequence of Smith’s participation in the

burglary and transporting of the stamps to South Lake

Tahoe. Viewing the evidence in the light most favorable

to the government, we cannot say that it was insufficient to

convict Smith on count five of the indictment.

IX. MERGER OF OFFENSES

Smith raises the issue whether his conviction for postal

burglary under 18 U.S.C. § 2115 merges into his conviction

for theft of government property under 18 U.S.C. 4 641.

We find that each statute describes a separate offense, and

that each contains an element which the other does not.

§ 2115 requires that forcible entry of a post office be proven;

under § 641, forcible entry need not necessarily be proven.

§ 641 requires proof of theft while § 2115 does not. See

Clemas v. United States, 423 F.2d 461 (8th Cir.), cert.

denied, 398 U.S. 968, 90 S.Ct. 2183, 26 L.Ed.2d 554 (1970).

The Supreme Court reached a similar conclusion under a

pair of older postal burglary and theft statutes. See Mor-

gan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153

(1915) ; see also Prince v. United States, 352 U.S. 322, 328,

n.9, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957). It was not error to

punish Smith for the separate violations.

X. PRIOR CRIME EVIDENCE

We assume without deciding that the court erred in allow-

ing Eggers to testify as to Smith’s prior burglaries with

Ed Witwick. See Fed. R. Evid. 404(b). We agree with the

government, however, that any error here was harmless

beyond a reasonable doubt. The evidence of Smith’s guilt

was overwhelming, and the reference to the previous

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burglaries brief and general. The government did not refer

to this evidence in its closing argument.

XI. SANDSTROM VIOLATION

Finally, Smith asserts that the jury instruction on in-

ferring intent violates the Supreme Court’s decision in

Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61

L.Ed.2d 39 (1979). This court, however, has recently ap-

proved in a post-Sandstrom decision an instruction virtu-

ally identical to that challenged here. See United States

v. Ross, F.2d __, slip. op. p. 3807 (9th Cir., June 19, 1980).

The instruction did not amount to reversible error.

The judgment of the trial court and conviction of each of

the defendants is

AFFIRMED.