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United States v. Baker

filed: October 19, 1993.


On Appeal from the United States District Court for the District of Nevada. D.C. No. CR-86-0049-3-ECR, D.C. No. CR-86-0049-2-ECR, D.C. No. CR-86-0049-01-ECR, D.C. No. CR-86-0049-04-ECR, D.C. No. CR-86-0049-09-ECR, D.C. No. CR-86-0049-02-ECR, D.C. No. CR-86-0049-07-ECR, D.C. No. CR-86-0049-10-ECR, D.C. , D.C. No. CR-86-0049-25-ECR, D.C. No. CR-86-0049-05-ECR, D.C. No. CR-86-0049-11-ECR, D.C. No. CR-86-0049-14-ECR, D.C. No. CR-86-0049-ECR. Edward C. Reed, Jr., District Judge, Presiding.

Before: Harry Pregerson, Robert Boochever, and Robert R. Beezer, Circuit Judges. Opinion by Judge Boochever.

Author: Boochever


BOOCHEVER, Circuit Judge:

This is an appeal from criminal convictions following one of the lengthiest and costliest trials in this nation's history. The trial lasted over 16 months, produced over 30,000 pages of transcripts, and involved over 250 witnesses and thousands of exhibits presenting evidence involving over 2,000 narcotics transactions spanning an 11-year period. Of the 24 defendants charged in the 44-count superseding indictment, 15 initially went to trial. Three defendants reached plea agreements during the trial. Eleven of the remaining 12 defendants join in this appeal. We are called upon to consider not only the approximately 50 individual issues raised on appeal, but the practical and human limitations of our jury system itself.

Richard Rupley, Sr., John Bonnenfant, Dwain Baker, Edward Baker, Daniel Rupley, Dominic Cavallaro, Katherine Rupley, Richard Rupley, Jr., Byron Wimberly, Robert Rowen, and Robert Cole (collectively, "Appellants") were members of a large criminal organization known as "the Company."*fn1 The Company was headed by Rupley, Sr., who expanded his operations by recruiting many teenagers and young adults (including his 15-year-old son) into the organization. The central count of the superseding indictment charged all defendants with conspiracy to manufacture, distribute, and possess with intent to distribute methamphetamine in California and Nevada between December 1981 and September 1987. Seven defendants were charged in a separate marijuana conspiracy, and four defendants were charged with conducting a continuing criminal enterprise. The remainder of the counts involved various combinations of defendants and primarily charged specific narcotics violations and interstate transportation in aid of racketeering.

The Company's drug-related activities, as the district court found, "involved an extraordinary level of violence." The indictment charged, and the district court found by a preponderance of the evidence, that Company members furthered their criminal conspiracies by attempting to kill a United States Forest Service employee, shooting at a low-flying police helicopter, and planning the murders of state and federal narcotics agents and government witnesses. The district court further found that the Company dealt with perceived acts of disloyalty by murdering one member (Rosie Osick), attempting to murder another (Dale Richmond), and beating and forcibly raping a third (Crystal Channell).

Additional pertinent facts will be stated in the Discussions of relevant issues.

I. Joinder


Perhaps the central issue of this case is whether the district court should have granted Appellants' motions to sever this massive trial into several more manageable, less prejudicial proceedings. The district court's denial of a motion to sever is reviewed for an abuse of discretion. United States v. Cuozzo, 962 F.2d 945, 949 (9th Cir.), cert. denied, 121 L. Ed. 2d 381, 113 S. Ct. 475 (1992). "The test for abuse of discretion by the district court is 'whether a joint trial was so manifestly prejudicial as to require the trial Judge to exercise his discretion in but one way, by ordering a separate trial.'" United States v. Patterson, 819 F.2d 1495, 1501 (9th Cir. 1987) (quoting United States v. Abushi, 682 F.2d 1289, 1296 (9th Cir. 1982)). This scope of review is "extremely narrow." United States v. Mariscal, 939 F.2d 884, 886 (9th Cir. 1991); see United States v. Stirling, 571 F.2d 708, 733 (2d Cir.) (severance question is "virtually unreviewable"), cert. denied, 439 U.S. 824, 58 L. Ed. 2d 116, 99 S. Ct. 93 (1978); United States v. Campanale, 518 F.2d 352, 359 (9th Cir. 1975) (trial court's severance rulings "will rarely be disturbed on review"), cert. denied, 423 U.S. 1050, 46 L. Ed. 2d 638, 96 S. Ct. 777 (1976).

Fed. R. Crim. P. 8(b) provides:

Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

Because "joint trials 'conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial,'" United States v. Lane, 474 U.S. 438, 449, 88 L. Ed. 2d 814, 106 S. Ct. 725 (1986) (quoting Bruton v. United States, 391 U.S. 123, 134, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968)), Rule 8(b) is construed liberally in favor of joinder. United States v. Sanchez-Lopez, 879 F.2d 541, 551 (9th Cir. 1989); United States v. Portac, Inc., 869 F.2d 1288, 1294 (9th Cir. 1989), cert. denied, 498 U.S. 845, 112 L. Ed. 2d 97, 111 S. Ct. 129 (1990). "'Co-defendants jointly charged are, prima facie, to be jointly tried.'" Mariscal, 939 F.2d at 885 (quoting United States v. Doe, 655 F.2d 920, 926 (9th Cir. 1980)); see also Zafiro v. United States, 122 L. Ed. 2d 317, 113 S. Ct. 933, 937 (1993) (noting preference in federal system for joint trials of defendants who are indicted together); United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir.) (defendants jointly charged in conspiracy cases are presumptively to be jointly tried), cert. denied, 449 U.S. 856, 66 L. Ed. 2d 71, 101 S. Ct. 154 (1980).

Fed. R. Crim. P. 14 limits the presumption of Rule 8(b) where otherwise proper joinder may prejudice a defendant:

If it appears that a defendant . . . is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief Justice requires.

Rules 8(b) and 14 "'are designed to promote economy and efficiency and to avoid a multiplicity of trials, where these objectives can be achieved without substantial prejudice to the right of the defendants to a fair trial.'" Bruton, 391 U.S. at 131 n.6 (quoting Daley v. United States, 231 F.2d 123, 125 (1st Cir.), cert. denied, 351 U.S. 964, 100 L. Ed. 1484, 76 S. Ct. 1028 (1956)).

Recognizing that "some prejudice is inherent in any joinder of defendants," United States v. Vaccaro, 816 F.2d 443, 448-49 (9th Cir.), cert. denied, 484 U.S. 914, 98 L. Ed. 2d 220, 108 S. Ct. 262, 484 U.S. 928, 98 L. Ed. 2d 255, 108 S. Ct. 295 (1987), we previously have focused our inquiry into the prejudicial effect of a joint trial on whether the jury may reasonably be expected to collate and appraise the independent evidence against each defendant. United States v. Sherlock, 962 F.2d 1349, 1360 (9th Cir. 1989), cert. denied, 113 S. Ct. 419, 121 L. Ed. 2d 342 (1992). Because limiting instructions may suffice to cure a risk of prejudice, Zafiro, 113 S. Ct. at 938, the Judge's diligence in instructing the jury on the limited purposes for which various evidence may be used is a "critical factor" in assessing the jury's ability to compartmentalize the evidence against each defendant. Cuozzo, 962 F.2d at 950. We have also recognized that "the best evidence of the jury's ability to compartmentalize the evidence is its failure to convict all defendants on all counts." United States v. Unruh, 855 F.2d 1363, 1374 (9th Cir. 1987), cert. denied, 488 U.S. 974, 102 L. Ed. 2d 548, 109 S. Ct. 513 (1988). Both of these factors support the district court's denials of severance in this case.

Appellants do not contend that the district court was careless or lackadaisical in instructing the jury; they argue that there were too many limiting instructions, not too few. The Judge gave nearly 200 limiting instructions over the course of the trial, many of which were repeated several times. For example, when a witness testified over several days, the court would routinely repeat any applicable limiting instructions at the start of each day's testimony. The court also instructed the jury at the close of the case to give separate consideration to each charge and each defendant. "Our court assumes that the jury listened to and followed the trial Judge's instructions." Escalante, 637 F.2d at 1202 (citations omitted); see Richardson v. Marsh, 481 U.S. 200, 206, 95 L. Ed. 2d 176, 107 S. Ct. 1702 (1987) (recognizing "the almost invariable assumption of the law that jurors follow their instructions"). The district court's careful and frequent limiting instructions militate against finding an abuse of discretion. See United States v. Kennedy, 564 F.2d 1329, 1334 (9th Cir. 1977), cert. denied, 435 U.S. 944, 55 L. Ed. 2d 541, 98 S. Ct. 1526 (1978); Cuozzo, 962 F.2d at 950.

The jury's selective verdicts also support the district court's decision. The jury acquitted Robert Rowen on count 3, Dwain Baker on count 11, and Daniel Rupley on count 15. The court declared mistrials when the jury was unable to reach verdicts regarding Dwain and Edward Baker on count 3 and Daniel Rupley on count 40. Other incidents demonstrate that the jury gave conscientious attention to each count as it applied to each defendant. For example, the jury noticed that Daniel Rupley was named in the pleading portion of count 10 but not in the caption, and this flaw led to the dismissal of that count against Daniel Rupley. These factors "dramatically demonstrate[ ] that the jury was able, under the careful instructions of the Court, to understand and separate the evidence as to each defendant and to individually determine the issues presented." Kennedy, 564 F.2d at 1334-35; see Cuozzo, 962 F.2d at 950.

Moreover, we note that, "although the jury had to evaluate a tremendous amount of evidence, the nature of the evidence and the legal concepts involved in the case were not extraordinarily difficult to comprehend, as they might be, for example, in a complex anti-trust case involving abstruse economic theories or an employment discrimination case involving technical statistical evidence and formulae." United States v. Casamento, 887 F.2d 1141, 1150 (2d Cir. 1989), cert. denied, 493 U.S. 1081, 107 L. Ed. 2d 1043, 110 S. Ct. 1138, 495 U.S. 933, 109 L. Ed. 2d 504, 110 S. Ct. 2175, 495 U.S. 958, 109 L. Ed. 2d 746, 110 S. Ct. 2564 (1990). Drug manufacturing and distribution, even on such a large scale as in this case, is not beyond the competence of the ordinary juror. See United States v. Moten, 564 F.2d 620, 627 (2d Cir.), cert. denied, 434 U.S. 942, 54 L. Ed. 2d 304, 98 S. Ct. 438, 434 U.S. 959, 54 L. Ed. 2d 318, 98 S. Ct. 489, 434 U.S. 974, 54 L. Ed. 2d 466, 98 S. Ct. 531 (1977). "The crimes here may have been large in number and variety, but they were rather ordinary in nature, except in their viciousness." United States v. DiNome, 954 F.2d 839, 842 (2d Cir.), cert. denied, 113 S. Ct. 94, 121 L. Ed. 2d 56 (1992).

Finally, Appellants' allegations of prejudice are substantively insufficient to require reversal. It is not enough for Appellants to show that separate trials would have created a better chance for acquittal. Zafiro, 113 S. Ct. at 938; Escalante, 637 F.2d at 1201. Nor is the fact that a defendant is to be tried with a more culpable defendant enough to require severance. United States v. Van Cauwenberghe, 827 F.2d 424, 432 (9th Cir. 1987), cert. denied, 484 U.S. 1042, 98 L. Ed. 2d 859, 108 S. Ct. 773 (1988). But see Zafiro, 113 S. Ct. at 938 ("When many defendants are tried together in a complex case and they have markedly different degrees of culpability, [the] risk of prejudice is heightened."). Rather, "when defendants properly have been joined under Rule 8(b), a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro, 113 S. Ct. at 938. Appellants do not demonstrate with sufficient particularity how they were injured by the joint trial. For example, they do not allege any inconsistent defenses, violation of confrontation rights, or unavailability of codefendants' exculpatory testimony. Broad and general allegations of prejudice from the length of the trial are not enough to require the district court to grant a severance.

The primary case on which Appellants rely, United States v. Donaway, 447 F.2d 940 (9th Cir. 1971), is readily distinguishable. With less than 50 of the 2300 transcript pages in the government's case relevant to Donaway, we held in that case that the district court abused its discretion in failing to sever Donaway from the eight other defendants in a 10-count interstate gambling conspiracy trial. Id. at 943. In Donaway, however, the conspiracy count had been dismissed as to all but two defendants. Id. at 941. In this case, all Appellants were charged in the methamphetamine conspiracy. Although some Appellants may not have been mentioned frequently by name during the trial, the voluminous evidence of this conspiracy and of the overt acts in furtherance of it was relevant to all defendants, and thus would have been admissible even in separate trials.

In Richardson v. Marsh, the Supreme Court observed:

Many joint trials - for example, those involving large conspiracies to import and distribute illegal drugs - involve a dozen or more codefendants. . . . It would impair both the efficiency and the fairness of the criminal Justice system to require . . . that prosecutors bring separate proceedings, presenting the same evidence again and again, requiring victims and witnesses to repeat the inconvenience (and sometimes trauma) of testifying, and randomly favoring the last-tried defendants who have the advantage of knowing the prosecution's case beforehand. Joint trials generally serve the interests of Justice by avoiding inconsistent verdicts and enabling more accurate assessment of relative culpability - advantages which sometimes operate to the defendant's benefit.

481 U.S. at 209-10. We hold that the district court did not abuse its broad discretion in denying Appellants' motions for severance.


Our holding should not be interpreted as an endorsement of the government's bringing such mega-trials in the future. We commend Chief Judge Reed for his remarkably careful rulings throughout the district court proceedings. The Judge gave great weight to the defendants' rights and made a determined effort to ensure that the trial was fair. In the hands of a less experienced Judge, however, this trial could well have resulted in a complete reversal and a colossally expensive waste of time. We therefore find it appropriate to set forth our concerns regarding trials of this magnitude and some standards by which to measure the viability of such trials in the future.


As discussed above, there are several frequently cited advantages of proceeding against all defendants in a single trial. We believe, however, that most of these purported advantages are overstated when a trial of this nature is involved.

First, the claim that joint trials save time and serve judicial economy is ludicrous under the present facts. Where trials of this magnitude are involved, judicial economy will often be better served by severance. As the government proceeds through separate trials, it learns the strengths of its case and makes a sharper and more streamlined presentation so that "each successive trial moves at a quicker and smoother pace than the last." United States v. Gallo, 668 F. Supp. 736, 757 (E.D.N.Y. 1987). With fewer defendants and defense counsel involved, there is less need for the sidebars and continuances that contribute to the length of a joint trial. Moreover, "the court itself becomes much more familiar with the nature of the case and the evidence, thus enabling more expeditious and more efficient rulings." Id. We do not believe that this case would have required 16 months in the courtroom had the defendants been tried in manageable groups of three or four.

Second, the government's asserted concern with disclosing and weakening its case against later-tried defendants is unpersuasive. We can see no problems beyond those inherent in retrying a case reversed on appeal, a situation in which the government has proved fully capable of securing convictions. See Edward Weinfeld, The Problems of Long Criminal Trials, 34 F.R.D. 158, 161 (1963). Disclosure of the government's method and quality of proof may even benefit the prosecution by inducing additional guilty pleas from severed defendants. Gallo, 668 F. Supp. at 757.

Third, avoiding inconsistent verdicts is not a significant concern in a trial such as this. When several defendants are charged with jointly committing a single criminal act and tried on evidence that implicates them all equally, inconsistent verdicts may appear unfair and undermine public confidence in the judicial system. In a trial involving multiple defendants charged with separate substantive offenses, however, the acquittal of some defendants in separate trials is no more problematic than their acquittal in a joint trial, which occurred here as to several counts. Even where defendants are charged with the same offense, "inconsistent" verdicts are as possible in a joint trial as in separate trials. For example, of the seven defendants charged in the marijuana conspiracy in this case, four were convicted, one was acquitted, and the district court declared a mistrial as to the remaining two. We cannot see how the same result occurring after separate trials would result in any greater "scandal and inequity." Richardson, 481 U.S. at 210.

Finally, the government contends that a joint trial avoids the possibility of witnesses who testify at the first severed trial being intimidated or otherwise prevented from testifying again. Although this is a genuine concern in a drug conspiracy case involving allegations of severe violence, we do not see how the risk is any greater in separate trials than in a joint trial where, as here, the defendants know the identity of most of the government's witnesses far in advance. Even if, as the government alleges, some witnesses might refuse to testify more than once, their prior testimony would probably be admissible at subsequent trials under Fed. R. Evid. 804(b)(1). We recognize, however, that possible loss of testimony and, more importantly, risk to the lives of witnesses must be factored into the equation on a case-by-case basis.


Against the questionable benefits of a joint trial of this scope and duration, we must weigh the indisputably staggering hardships. These burdens fall not only on the defendants, but on defense counsel, prosecutors, the jury, the district court, the court of appeals, and the taxpayers.

The risk of prejudice to the defendants increases sharply with the number of defendants and the length of the trial. A trial's length expands with the number of defendants not only because of the amount of evidence that must be presented, but also due to the scheduling conflicts that abound when dozens of jurors, defendants, and attorneys must be present in court at all times. This may often result in defendants having to endure months or even years of incarceration while they are presumed, and may in fact turn out to be, innocent. The Sixth Amendment speedy trial guarantee is rendered toothless when a verdict is not returned until years after an indictment.

There are a myriad of other potential sources of prejudice to an effective defense in trials of this scope. Defense counsel must call witnesses to attempt to impeach the credibility of prosecution witnesses who testified months earlier. Armies of defense counsel risk undermining each other with conflicting trial tactics and strategies. Defendants may have difficulty obtaining their counsel of choice, either because they cannot afford the staggering attorney fees of a year-long trial or because attorneys are unwilling to suspend the balance of their practice for such a protracted period. See Edward B. Williams, The Problems of Long Criminal Trials, 34 F.R.D. 181, 182-83 (1963).

Most importantly, the human limitations of the jury system and the consequent risk of spillover prejudice cannot be ignored. This risk is particularly acute for comparatively peripheral defendants such as Robert Cole, who was charged only in the methamphetamine conspiracy count and whose separate trial could have been concluded in a matter of days or weeks, but who was required to sit in the courtroom, shackled to his chair, during months of proof involving entirely unrelated conspiracies and substantive offenses. At oral argument in this case, the Assistant United States Attorney averred that his multiple violations of the district court's limiting instructions during closing argument were the inadvertent result of confusion. When a seasoned prosecutor is unable to keep track of nearly 200 limiting instructions given over the course of a 16-month trial, our faith in a lay jury's ability to do so is stretched to the limit. Our presumption that a jury is able to follow the trial court's instructions is "rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal Justice process." Richardson, 481 U.S. at 211. The presumption is not irrebuttable.

Beyond the risk of prejudice to the defendants, mega-trials such as this place a tremendous burden on the attorneys involved. Appointed defense counsel may sacrifice their time and other practice to earn less than half of what they normally charge, and the government must commit experienced prosecutors to a single trial indefinitely.*fn2 The government also takes on a significant risk of reversal on appeal, not only as a result of the prejudice of such an epic trial, but because of any number of evidentiary or instructional errors that occur in the most basic proceedings. Even the most fair and attentive trial Judge will err during the course of a 16-month trial, and some of those errors may require reversal.

This type of trial also imposes on citizens who fulfill their civic duty by serving on the jury. Jurors have their employment and home life disrupted, often at great financial, physical, and personal expense. They are required to "sit stoically and silently for hours every day, day after day," Gallo, 668 F. Supp. at 754, and are prohibited from engaging in many ordinary pursuits of their daily lives, such as reading the newspaper.

The trial court is another of the mega-trial's victims. Because the Judge must adjourn the remainder of his or her calendar during the trial, "the already overburdened docket of the court reaches a breaking point, and the administration of Justice in all of the court's cases is unconscionably delayed." Id. at 755. The pressure to avoid a mistrial or reversal may also affect evidentiary rulings. "The option of a mistrial and a restarting of the case is almost closed when such a large expenditure of time and effort would be wasted." Id.

The problems continue on appeal. Transcripts in this case were not filed until almost a year and a half after the end of trial, and oral argument was not heard until nearly four years after trial. The difficulties in coordinating briefing schedules and oral argument, the practical impossibility of a thorough review of the record, and the strain on Judges and court clerks from reading the "briefs" (over 1200 pages in this appeal) make it more difficult fully to consider the issues raised and significantly burden our already congested calendar.*fn3 We are unaware of any case that has imposed a comparable drain on this circuit's resources.

Finally, we are abundantly aware that it is the taxpayers who frequently foot the bill for an extended criminal trial. The legal fees of defense attorneys appointed under the Criminal Justice Act, 18 U.S.C. § 3006A (1988), exceeded $2 million. Counsel for Robert Cole, whose separate trial we believe could have been concluded in a couple of weeks, filed over $250,000 in CJA vouchers during the joint trial. An additional $550,000 in appointed defense counsel fees have been paid on this appeal to the date of oral argument. When these millions of dollars in defense costs are combined with the millions in prosecution and court costs (including extensive reconstruction of the courtroom to accommodate the large number of defendants), the price tag of these 12 convictions is virtually indefensible.

In short, a trial of this scope and duration challenges the most fundamental goals of our federal criminal Justice system: "simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay." Fed. R. Crim. P. 2.


The solution to the problems of the mega-trial "is largely in the hands of the United States Attorney, for he [or she] is in a position in the first instance to determine whether it would be more in the interests of criminal Justice to restrict the number of defendants tried at any one time." United States v. Agueci, 310 F.2d 817, 840 (2d Cir. 1962), cert. denied, 372 U.S. 959, 10 L. Ed. 2d 11, 83 S. Ct. 1013 (1963). Prosecutors should consider the concerns we have discussed in deciding whether to bring a trial such as this in the future. If the government chooses to proceed with a single indictment, it should make a conscientious effort to "determine where [its] case is strongest and focus upon that area, reducing the number of counts and of defendants to manageable proportions." Weinfeld, supra, 34 F.R.D. at 160.

The district court must also evaluate the burdens of a lengthy trial on the defendants' due process rights in view of the factors discussed above and any others that may apply to the particular case. In Casamento, an appeal from a drug conspiracy trial that exceeded even the scope of this one, the Second Circuit provided some useful guideposts for the district court's exercise of discretion in similar cases. 887 F.2d at 1151-52. The court recommended that the district court elicit the prosecution's good-faith estimate of the time needed to present its case. While a conservative estimate should not become the subject of a contested hearing, the district court may independently assess the estimate in view of the number of defendants, the scope of the indictment, and the court's own experience. When the estimate exceeds four months, the Judge should require the prosecution to justify its Conclusion that a joint trial serves the ends of Justice. When more than ten defendants are involved, this justification should be especially compelling. Finally, the Judge and the prosecutor should consider limiting the prosecution of peripheral defendants to easily provable charges that carry adequate penalties. We adopt the Second Circuit's recommendations in their entirety.

We further note that when the district court relies on the government's representations in assessing the likely length of a trial, the court may hold the prosecutor to those representations absent a showing of special circumstances. For example, when the district court requires the prosecution to provide a pretrial witness list, it need not allow the government, as it did here, to present nearly 100 witnesses not on that list (including the first two witnesses called).*fn4 While these decisions are within the district court's discretion, we believe that stricter adherence to pretrial commitments will guard against the prosecution's underestimating the length of its case and will require more thorough and accurate trial preparation.

When the government and the district court fail adequately to guard against the harms of a mega-trial, we will have no alternative but to reverse, whatever the cost of a retrial. Although we find it unnecessary to exercise that option today, we hope that trials such as this remain exotic blooms among legal flora and not rampant weeds threatening to strangle our most basic ideals of a fair and efficient Justice system.

II. Pretrial Detention

In a vague and unsupported argument, Appellants contend that the prosecution manipulated the court to become its "unwitting partner" in abusing the Bail Reform Act. They claim that they were detained because they exercised their constitutional rights while others who waived those rights were granted conditional release, and that the Bail Reform Act was thus "unconstitutionally applied as punitive rather than preventative detention." Appellants' Joint Brief on Pretrial Issues at 90. This issue was not raised in the district court, and we therefore review for plain error. United States v. Dischner, 974 F.2d 1502, 1515 (9th Cir. 1992), cert. denied, 122 L. Ed. 2d 682, 113 S. Ct. 1290 (1993). Appellants point to no evidence in the record indicating a miscarriage of Justice or a failure of the integrity of the judicial process. See United States v. Smith, 962 F.2d 923, 935 (9th Cir. 1992).

Appellants also argue that the government's abuse of pretrial detention resulted in coerced pleas and cooperation with the prosecution. Of the nine people who were allegedly subjected to such coercion, only one is a party to this appeal; that defendant, Byron Wimberly, neither pled guilty nor cooperated with the government, and his inclusion in this list is a mystery. As for the other individuals named, Appellants lack standing to raise due process violations suffered by third parties. See United States v. Wingender, 790 F.2d 802, 803 (9th Cir. 1986).

III. Juvenile Delinquency Act

Three of the four counts of which Richard Rupley, Jr., was convicted involved conduct occurring before his eighteenth birthday. Rupley, Jr., thus fell within the protections of the Juvenile Delinquency Act (JDA), 18 U.S.C. §§ 5031-42, with respect to those three counts.*fn5 Rupley, Jr., argues that his convictions on the juvenile counts must be reversed based on improper transfer of those counts to adult status and numerous procedural violations of the JDA.

A. Transfer to Adult Status

The district court transferred Rupley, Jr., to adult status on counts 3, 10, and 15 pursuant to 18 U.S.C. § 5032. We hold that transfer was improper as to counts 3 and 10 and therefore reverse Rupley, Jr.'s convictions on those counts.

1. Count 3

Count 3 charged Rupley, Jr., with violating 21 U.S.C. § 846 by conspiring to manufacture, distribute, and possess with the intent to distribute marijuana between January 1983 and September 1985. At the time of Rupley, Jr.'s transfer to adult status (and at the time the charged offense was completed), § 5032 permitted transfer for any act committed after the juvenile's fifteenth birthday "which if committed by an adult would be a felony that is a crime of violence or an offense described in [21 U.S.C. § 841]." 18 U.S.C. § 5032 (1988). Because count 3 alleged a violation of § 846 (albeit a conspiracy to violate § 841), the district court based its transfer order on a finding that the charged conspiracy was a "crime of violence."

"Crime of violence" is defined in 18 U.S.C. § 16 (1988) as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Count 3 does not fall within part (a) of this definition because "the use, attempted use, or threatened use of physical force" is not an element of a drug conspiracy under § 846. The count does not fall within part (b) of the definition because a conspiracy to manufacture, distribute, or possess a controlled substance does not "by its nature" involve a substantial risk of physical force. Although the government argues, and the district court found, that the violent overt acts alleged in count 3 made the conspiracy a crime of violence, the "by its nature" language of § 16(b) "implies that the generic, rather than the particular, nature of the predicate offense is determinative in defining a crime of violence." See United States v. Cruz, 805 F.2d 1464, 1470 (11th Cir. 1986), cert. denied, 481 U.S. 1006, 95 L. Ed. 2d 204, 107 S. Ct. 1631, 482 U.S. 930, 96 L. Ed. 2d 702, 107 S. Ct. 3215 (1987); see also United States v. Gonzalez-Lopez, 911 F.2d 542, 547 (11th Cir. 1990), cert. denied, 114 L. Ed. 2d 461, 111 S. Ct. 2056 (1991); cf. United States v. Mendez, 992 F.2d 1488, 1490 (9th Cir. 1993) (employing categorical approach to determine whether offense was "by its nature" a crime of violence under 18 U.S.C. § 924(c)). Had Congress intended a case-by-case inquiry into whether the felony as committed constituted a crime of violence, there would have been no need for the phrase "by its nature." Cruz, 805 F.2d at 1469; see also United States v. Juvenile Male, 923 F.2d 614, 619 (8th Cir. 1991). The cases cited by the government in support of a case-by-case approach interpret "crime of violence" as used in § 4B1.2 of the Sentencing Guidelines, which does not include the "by its nature" language that is dispositive here. See, e.g., United States v. Cornelius, 931 F.2d 490, 492-93 (8th Cir. 1991). Because not every § 846 conspiracy involves a substantial risk of physical force, count 3 did not allege a crime of violence and thus was not transferable.

2. Count 10

Count 10 charged Rupley, Jr., with manufacture of methamphetamine in violation of 21 U.S.C. § 841(a). According to the superseding indictment, Rupley, Jr., committed the offense "on or about July 30, 1983," when he was 15 years old. The transfer statute in effect on that date permitted transfer only for crimes "alleged to have been committed . . . after [the juvenile's] sixteenth birthday which if committed by an adult would be a felony that is punishable by a maximum penalty of ten years imprisonment or more, life imprisonment, or death." 18 U.S.C. § 5032 (1982) (emphasis added). The statute was amended in 1984 to permit transfer for acts "alleged to have been committed . . . after [the juvenile's] fifteenth birthday which if committed by an adult would be a felony that is a crime of violence or an offense described in [21 U.S.C. § 841]." 18 U.S.C. § 5032 (1988) (emphasis added); Pub. L. No. 98-473, § 1201(b)(2), 98 Stat. 2150 (1984). Because under the law existing at the time of the offense Rupley, Jr., could be adjudicated only under the JDA for count 10, he contends that application of the amended statute to that count violated the Ex Post Facto Clause. We review an alleged ex post facto violation de novo. United States v. Kohl, 972 F.2d 294, 297 (9th Cir. 1992). Because Rupley, Jr., failed to raise this issue before the district court, however, we will reverse only if the transfer of count 10 constituted plain error. United States v. Calabrese, 825 F.2d 1342, 1346 (9th Cir. 1987).

The Ex Post Facto Clause prohibits statutes "'[1] which punish[ ] as a crime an act previously committed, which was innocent when done; [2] which make[ ] more burdensome the punishment for a crime, after its commission, or [3] which deprive[ ] one charged with crime of any defense available according to law at the time when the act was committed.'" Collins v. Youngblood, 497 U.S. 37, 42, 111 L. Ed. 2d 30, 110 S. Ct. 2715 (1990) (quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 70 L. Ed. 216, 46 S. Ct. 68 (1925)). In United States v. Juvenile Male, 819 F.2d 468, 470 (4th Cir. 1987), the Fourth Circuit held that the Ex Post Facto Clause prohibited applying the 1984 amendment to § 5032 retroactively because it exposed the juvenile defendant to a much more severe sentence. We find the Fourth Circuit's analysis persuasive and conclude that applying the amended statute to a previously committed offense violated the Ex Post Facto Clause.

Moreover, we hold that the transfer of count 10 was plain error under Fed. R. Crim. P. 52(b). The error is "clear" and unquestionably affected Rupley, Jr.'s "substantial rights" by subjecting him to a much harsher sentence than otherwise would have been authorized. See United States v. Olano, 123 L. Ed. 2d 508, 113 S. Ct. 1770, 1777-78 (1993). We therefore reverse Rupley, Jr.'s conviction on count 10.

3. Count 15

Count 15 also charged Rupley, Jr., with manufacture of methamphetamine in violation of 21 U.S.C. § 841(a). This count, however, alleged violations "on or about July 19, 1983 through on or about December 6, 1983." Thus the conduct involved in count 15 occurred both before and after November 10, 1983, Rupley, Jr.'s sixteenth birthday. Although the government took the position at trial that count 15 alleged a single incident of manufacturing, various witnesses testified that the activity in question occurred anywhere between October and early December.

Were it indisputable that Rupley, Jr., committed the count 15 offense when he was 15, we would be required to reverse this conviction on ex post facto grounds despite the lack of an objection at trial. There was evidence, however, to support a finding that the crime occurred after Rupley, Jr.'s sixteenth birthday, thus making the 1984 amendment to § 5032 irrelevant. A jury's verdict represents a finding that the crime was committed as alleged in the indictment. Calabrese, 825 F.2d at 1346; Leyvas v. United States, 371 F.2d 714, 717 (9th Cir. 1967). In this case, the jury's verdict represents a finding, supported by the evidence, that Rupley, Jr., could have committed the offense after his sixteenth birthday. Although the district court, had Rupley, Jr., raised an ex post facto challenge to the transfer, might have been obligated to resolve the ambiguity in the evidence, any error is not obvious and does not clearly affect substantial rights. See Olano, 113 S. Ct. at 1777-78. We therefore hold that the transfer of count 15 did not constitute plain error. See Calabrese, 825 F.2d at 1346.

B. Alleged JDA Violations

With respect to count 15, the one juvenile count of conviction that we do not reverse based on improper transfer, we must consider the several alleged procedural violations of the JDA that Rupley, Jr., claims merit reversal. We apply a three-step inquiry to alleged violations of the JDA. We first ask whether the government violated the JDA's requirements. If it did, we ask whether the government's conduct was so egregious as to constitute a deprivation of due process. If it was not, we must determine whether the violation was harmless to the juvenile beyond a reasonable doubt. United States v. Doe, 862 F.2d 776, 779 (9th Cir. 1988).

1. Certification

18 U.S.C. § 5032 (1988) provides in part:

A juvenile alleged to have committed an act of juvenile delinquency . . . shall not be proceeded against in any court of the United States unless the Attorney General, after investigation, certifies to the appropriate district court of the United States that (1) the juvenile court or other appropriate court of a State does not have jurisdiction or refuses to assume jurisdiction over said juvenile with respect to such alleged act of juvenile delinquency, (2) the State does not have available programs and services adequate for the needs of juveniles, or (3) the offense charged is a crime of violence that is a felony or an offense described in [21 U.S.C. § 841] . . . and that there is a substantial Federal interest in the case or the offense to warrant the exercise of Federal jurisdiction.

The government filed the certification on February 13, 1987, nearly a year before trial but approximately four months after Rupley, Jr.'s arrest and arraignment. Rupley, Jr., argues that the government violated § 5032 by failing to file a proper certification before any proceedings in the district court had begun. We review this issue of statutory interpretation de novo. See Doe, 862 F.2d at 779.

Certification is a jurisdictional requirement. United States v. Juvenile Male, 864 F.2d 641, 643 (9th Cir. 1988). But see United States v. Gonzalez-Cervantes, 668 F.2d 1073, 1077 (9th Cir. 1981) (filing of accurate certification is not jurisdictional). The statute includes no deadline for filing the certification, however, and no court has imposed one. See United States v. Chambers, 944 F.2d 1253, 1260 (6th Cir. 1991) (certification filed at close of prosecution's case-in-chief was timely where defendants failed to invoke JDA earlier), cert. denied, 117 L. Ed. 2d 455, 112 S. Ct. 1217, 118 L. Ed. 2d 397, 112 S. Ct. 1680 (1992); United States v. Cuomo, 525 F.2d 1285, 1290 (5th Cir. 1976) (without deciding the latest time for filing, holding that certification filed before arraignment was timely). Our own cases are unclear on the point. Compare Gonzalez-Cervantes, 668 F.2d at 1077 n.6. ("[Section 5032] does not set forth when the certification need be filed. The statute provides: 'shall not be proceeded against . . . unless . . . ' a certification is filed. It does not state that proceedings cannot be undertaken until a certificate is filed.") with id. at 1077 ("[Section 5032] quite clearly requires the filing of a certification before the district court can institute proceedings against the juvenile . . . .") (emphasis added) and Juvenile Male, 864 F.2d at 643 ("[Section 5032] requires the government to file a special certification regarding the juvenile before it can proceed against that juvenile.") (emphasis added). See also Chambers, 944 F.2d at 1260 ("Establishing the factors for federal jurisdiction is not always a prerequisite to initiating federal proceedings."); Cuomo, 525 F.2d at 1289 ("[Section 5032] does not expressly apply to the commencement of an action against a juvenile . . . .") (emphasis added).

Congress' purpose in enacting the certification requirement was "to help ensure that state and local authorities would deal with juvenile offenders wherever possible, keeping juveniles away from the less appropriate federal channels." Juvenile Male, 864 F.2d at 644. We need not decide in this case whether a deadline for filing a certification is necessary to effectuate this purpose. Even if ยง 5032 was violated, the government's conduct was not so egregious as to constitute a due process violation. The certification was furnished nearly a year before trial, and more than eight months before the filing of the superseding indictment on which Rupley, Jr., was tried and convicted. Although the certification apparently could have been obtained a few months earlier, there is no evidence of bad faith. Moreover, any violation ...

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