Appeal from the United States District Court for the Southern District of California. DC No. CR 92-0231-1-E. William B. Enright, District Judge, Presiding
Before: Noonan and Trott, Circuit Judges, and Fitzgerald,*fn** District Judge.
Robert Paul Flint appeals his conviction and sentence for subornation of perjury in violation of 18 U.S.C. § 1622, and for aiding and abetting a false, fictitious and fraudulent claim in violation of 18 U.S.C. §§ 287 and 2. We affirm.
Flint owned a sports memorabilia store called the Sports Stop. The store sold items such as baseball cards, souvenir programs, and autographed photos of famous baseball players and other sports celebrities. Flint also sold items on consignment from third parties.
In July of 1990 the DEA seized the assets, including the inventory, of the Sports Stop. Eventually the government filed a civil action to forfeit the assets of the Sports Stop. After the suit was filed third parties became eligible to contest the forfeiture. Most of these innocent owners had left property on consignment with the Sports Stop. Each claimant could notify the government of his or her claim by filing a formal notice with the court, or by sending a letter to the DEA in care of the United States Attorney's office. The parties to the forfeiture agreed to hold a hearing on May 29, 1991 before a United States magistrate Judge to catalogue each person's claim.
Before the hearing, Flint approached Lena Pellegrino, who had a valid claim to some items she left at the store on consignment, and asked her to file a claim for a valuable set of lithographs that Flint owned himself. She refused. Flint then asked Gordon Miller to include in his rightful claim a set of baseball cards that Flint owned. Miller refused as well.
Finally, Flint approached his girlfriend and business partner in another memorabilia shop, Sylvia Brister, and asked her to include with her rightful claim two boxes of baseball cards that Flint owned. He told her that he planned to sell the cards and invest the proceeds in their new store. She agreed.
Brister wrote a letter claiming ownership of the cards and gave it to Flint. Flint instructed Brister to include with this letter a cancelled check, made out to Lena Pellegrino, as verification of the false claim. This check was written in payment for several unrelated items that Brister bought at an auction. Flint sent the letter to his lawyer. He also instructed Brister to attend the hearing.
Both Brister and Flint were present at the May 29 hearing. All claimants were placed under oath. After hearing from all known claimants, the magistrate asked all those who did not post a letter to the U.S. Attorney or who did not file a formal notice with the court to step forward and state their claims. At that moment, Flint turned around and nodded to Brister, indicating that she should stand up and approach the podium. He did not say anything to her. She walked up to the podium, swore the oath and made her legitimate and illegitimate claims.
Sometime after the hearing, Flint was helping the DEA inventory the items seized from the Sports Stop when he tried to pass some of his valuable autographed photos off as Miller's. Miller discovered what Flint had done and informed the DEA.
Several months later Brister met with the U.S. Attorney to discuss her claim. At that time she admitted that she did not own the two boxes of cards, and that Flint had induced her to make the claim.
In April, 1992 a grand jury returned a five-count second superseding indictment charging Flint with retaliating against a federal witness (count one), subornation of perjury (count two), aiding and abetting a false, fictitious and fraudulent claim (count three), and two counts of obstruction of Justice (counts four and five). Flint and the government agreed to proceed to trial on count two (subornation of perjury) and count three (aiding and abetting a false, fictitious and fraudulent claim). After a three-day trial the jury found Flint guilty of both counts. The district court sentenced Flint to 30 months imprisonment on count three and 27 months imprisonment on count two, to be served concurrently.
I. Sufficiency of the ...