Appeal from the United States District Court for the Northern District of California. D.C. No. CR 89-0365-LCB. Louis C. Bechtle, District Judge, Presiding.*fn*
Herbert Y. C. Choy, and Joseph T. Sneed, Circuit Judges, and Robert J. Kelleher, Senior District Judge.*fn** Opinion by Judge Choy.
A federal jury convicted Michael R. Tham for attempting to corruptly influence United States District Judge Stanley A. Weigel. Also convicted were Tham's coconspirators: ex-crime figure Abraham Chalupowitz, alias "Trigger Abe" Chapman, and United States District Judge Robert P. Aguilar. Tham was found guilty under 18 U.S.C. § 1503 for the substantive offense of endeavoring to influence the due administration of justice, and under 18 U.S.C. § 371 for both conspiracy to defraud the United States and conspiracy to influence the due administration of justice.
Tham appeals his criminal conviction and sentence, alleging that the district court erred when it (1) denied his motion for a preliminary evidentiary hearing under Franks v. Delaware ; (2) admitted into evidence incriminating telephone conversations which were intercepted without probable cause and which were the fruit of a prior illegal wiretap; (3) denied Tham's motion for a continuance of his trial date; (4) excluded certain testimonial and documentary evidence which would have helped to exculpate Tham; (5) issued jury instructions which failed to enumerate all the elements of conspiracy and which incorrectly defined the requirement of proving guilt beyond a "reasonable doubt"; and (6) incorrectly classified Tham's criminal convictions under 18 U.S.C. § 371 as two separate "pseudo-counts" of conspiracy under the United States Sentencing Guidelines.
FACTUAL AND PROCEDURAL BACKGROUND
Since 1949, Tham had served as a union official in San Francisco for Local 856, an affiliate of the International Brotherhood of Teamsters. Tham was an active and well-known participant in numerous Teamster affairs and organizations. On the basis of the cooperation and testimony of former organized crime figure Aladena T. "Jimmy" Fratianno, former acting boss of the Los Angeles mafia, the FBI investigated Tham's activities. On May 21, 1980, a federal jury convicted Tham under 29 U.S.C. § 501(c) for embezzling union funds and making a false entry into union records. Judge Weigel fined Tham $50,000 and sentenced him to serve consecutive terms of six months in prison and four years on probation.
In July 1987, seeking to vacate his conviction and recover over $200,000 in backpay and attorney's fees, Tham filed a motion for habeas corpus under 28 U.S.C. § 2255 before Judge Weigel. In an effort to gather information about Judge Weigel's handling of the case and to gain favorable treatment from Judge Weigel, Tham called upon Abe Chapman and Edward Solomon to solicit the help, advice, and personal influence of Judge Aguilar. Abe Chapman, was distantly related to Judge Aguilar by marriage. Attorney Edward Solomon was a friend and former law-school classmate of Judge Aguilar. In return, for Judge Aguilar's assistance, Tham used his union connections to find a job for Lou Aguilar, the judge's brother.
Tham, Chapman, and Aguilar were indicted on June 13, 1989. The first trial began on February 5, 1990 and ended in a mistrial on March 19, 1990 with the jury deadlocked on counts against Tham and Aguilar. A retrial was scheduled for June 4, 1990. On April 16, 1990, Tham filed a pretrial motion to sever his case from that of his co-defendants. The Government joined in Tham's motion on May 1, 1990. The court granted the severance motion but denied Tham's motion to continue his trial date until after the trials of his co-defendants.
Tham was tried for the second time and, on June 20, 1990, found guilty. On June 26, 1990 Tham moved for a new trial, which the court denied on August 31, 1990. On November 14, 1990, Judge Bechtle entered a judgment of conviction, fined Tham $20,000, and sentenced him to eighteen months in prison to be followed by three years on probation.
I. Franks Hearing for Defective Wiretap Affidavit
To prove the existence of the conspiracy and to establish that there had been attempts to corruptly influence Judge Weigel, the Government sought to present pen register and wiretap evidence that documented the conspirators' patterns of communication and revealed the contents of their telephone conversations.
Before trial, Tham moved to suppress evidence obtained from three wiretap authorizations of April 22, 1987, September 11, 1987, and October 21, 1987. After a non-evidentiary hearing on February 2, 1990, the district court ruled on February 5, 1990 to suppress evidence from the April wiretap while admitting evidence from the September and October wiretaps.*fn1 Although Tham argued that the September and October wiretaps were the tainted fruits of the illegal April wiretap, the court ruled that the September and October wiretaps were supported by sufficient independent source evidence of probable cause and necessity.
Tham alleges that it was error to authorize the April and September wiretaps. In support of the wiretap applications, the Government submitted the April 20, 1987 and September 20, 1987 affidavits of FBI special agent Thomas Carlon. First, Tham argues that each affidavit, on its face, failed to establish probable cause for a wiretap under 18 U.S.C. § 2518(3). Second, Tham argues that each affidavit was defective under Franks v. Delaware, 438 U.S. 154, 57 L. Ed. ...