author: ZIRPOLI, District Judge.

text:
    The PEOPLE OF the TERRITORY OF GUAM, Plaintiff-Appellee, v. Juan Mafnas ATOIGUE, Defendant-Appellant.
    No. 74-2445.
    United States Court of Appeals, Ninth Circuit.
    Dec. 23, 1974.

      Janet H. Weeks,. Agana, Guam (argued), of Trapp, Gayle, Teker, Weeks & Friedman, Agana, Guam, for defendant-appellant.
    John D. Fuchs, Asst. Atty. Gen., Agana, Guam (argued), for plaintiff-appellee.
   OPINION

Before KOELSCH and CARTER, Circuit Judges, and ZIRPOLI, District Judge.

ZIRPOLI, District Judge.

On January 2, 1974, Donald Minot, the manager of the Seven-Up Bottling Company plant at Maite, Guam, was found dead in his office. He had been stabbed six times. Appellant in this case was charged, in a two-count indictment, with Minot’s murder, in violation of sections 189 and 190 of the Penal Code of Guam, and with robbery in violation of sections 211, 212 and 213 of the Penal Code of Guam. After a trial at which he was ably represented by counsel who also represents him in this appeal, he was convicted on both counts and sentenced to life imprisonment on the first count and five years in prison on the second. He appeals on two grounds, neither of which is meritorious.

First, appellant attacks the sufficiency of the evidence to support his conviction for murder in the first degree. He does not object to the instructions on lesser offenses, and there is no question that he did stab Minot to death, although there is some doubt as to what he used to commit the crime since the murder weapon has never been found. Thus, the only contention he makes is that the evidence does not support the jury’s finding that the killing was willful, deliberate and premeditated, as required by section 189 of the Penal Code.

On appeal from a jury verdict of guilty, this court must view the evidence in the light most favorable to plaintiff; the only issue here is whether there was substantial evidence to support the conviction for first degree murder. See People v. Marquez, 109 Cal.App.2d 447, 449, 240 P.2d 1019 (1952). It is, of course, impermissible to infer the requisite premeditation from the mere fact of killing, and the burden is on the prosecution to establish premeditation beyond a reasonable doubt. Dealing with a statute with the same wording as the statute in this case, the Supreme Court of California observed that:

Given the presumption that an unjustified killing of a human being constitutes murder of the second, rather than of the first, degree, and the clear legislative intention to differentiate between first and second degree murder, we must determine in any case of circumstantial evidence whether the proof is such as will furnish a reasonable foundation for an inference of premeditation and deliberation [citations omitted] or whether it “leaves only to conjecture and surmise the conclusion that defendant either arrived at or carried out the intention to kill as the result of a concurrence of deliberation and premeditation.”

People v. Anderson, 70 Cal.2d 15, 25, 73 Cal.Rptr. 550, 447 P.2d 942 (1968). There, the court noted that there were three categories of circumstantial evidence that would justify upholding a conviction for first degree murder: (1) facts indicating “planning activity,” conduct of the defendant prior to the actual killing, indicating that he intended the fatal result; (2) facts concerning the defendant’s prior relationship with the victim that would permit a jury to infer a motive based upon “pre-existing reflection” rather than “mere unconsidered or rash impulse hastily executed”; (3) facts about the manner of the killing that in and of themselves imply that it was done according to a “preconceived design.” Id. at 26-27, 73 Cal.Rptr. at 557, 447 P.2d at 949. The focus of this analysis is on whether there is a reasonable foundation in the facts, viewed most favorably for the prosecution, to support the conclusion that the killing was the product of advance contemplation rather than impulse.

The prosecution’s evidence at trial was sufficient to permit the jury to find facts that reasonably support the inference of premeditation. The most important evidence was the testimony of Jesse Castro, a friend of appellant. He testified that he and appellant went to the Bottling Company offices two days before the killing, at appellant’s behest, to commit a robbery. R.T. 236-37. Castro testified that appellant told him that he would kill the man he had worked for at the Bottling Company (Minot, by reasonable inference) to avoid identification as the burglar. R.T. 237 — 38. When they arrived, however, appellant looked into the office and started to leave, declaring his intention “to come back later on.” R.T. 239. Thereafter, Castro withdrew from the plan because “I told him I knew another plan we won’t have to kill.” Id. This testimony alone was sufficient to permit the jury to conclude that the prosecution had proved facts in both the first and second categories delineated by the California court because it supports the conclusion that there was a plan directed towards killing Minot and that there was a motive for that killing, concealment of appellant’s identity-

Appellant argues that his failure to carry out his plan at the time he went to the Bottling Company with Castro was an abandonment and that therefore Castro’s testimony does not support a finding of premeditation. But Castro testified only that appellant had decided not to commit the crime immediately but to “come back later on”; the jury could have concluded that he did not abandon the plan but carried it out on January 2, which was, as appellee points out, the very next business day. Hence, Castro’s testimony, standing alone, could support the conviction in this case.

There was other evidence that tended to support the jury’s conclusion that the crime was premeditated. Dr. Park, the physician who performed the autopsy on Minot, testified that the wounds were inflicted by a long double-edged implement like a bayonet. R.T. 155 — 56. Ru-dolfo Dungan, with whom appellant had lived for several days prior to the killing, testified that he had possessed a bayonet which had disappeared at about the time appellant left for the Bottling Company to commit the crime. R.T. 231. Both he and Mrs. Josephine Guerrero testified that appellant took with him, when he departed, an object wrapped in clothing that was about twelve inches long and four inches in diameter. R.T. 218 — 19; 226. Thus, the jury had a reasonable basis for concluding that appellant had taken the murder weapon with him when he left to go to the Bottling Company, another fact that implies a plan made in advance of the killing. Appellant makes much of Dr. Park’s testimony that the wounds were probably not made by a kitchen knife, which is sharp on only one side, in conjunction with Mr. Dungan’s testimony that he had a kitchen knife that also disappeared at the time appellant left. While it does appear that the prosecution attempted, at trial, to demonstrate that the object wrapped inside appellant’s clothes was the kitchen knife, the jury could nevertheless have concluded that he was carrying the missing bayonet. Thus, the fact that Dr. Park testified that a kitchen knife could not have inflicted the wounds involved does not necessarily deprive Guerrero’s and Dungan’s testimony of.probative force.

Finally, it is uncontested that appellant fled Guam the day after the crime. See R.T. 350. While evidence of flight is not sufficient alone to support a conviction for first degree murder, People v. Jimenez, 95 Cal.App.2d 840, 844, 214 P.2d 15 (1950), where the jury could conclude that the flight was planned pri- or to the crime, it supports the finding of premeditation. Here, appellant did remove his clothing from the place he had been staying when he departed for the Bottling Company plant, and the jury could have concluded that he took his clothes with him to facilitate his escape, although he contends he took them to be washed.

Defendant testified in his own behalf, but his testimony does not undermine the substantiality of the evidence of premeditation. He admitted the killing, R.T. 350, 353, 365, but explained that he had not contemplated any crime at the time he went to the Bottling Company plant to pick up a check for work he had previously done there. When Minot refused to pay him for two of the three days he worked, he testified, he and Minot got into a scuffle, Minot hit him in the forehead, where he had been wounded in Viet Nam, and he “went into a rage.” R.T. 350. He then grabbed half a pair of scissors that was lying nearby and stabbed Minot. Realizing what he had done, he decided to try to escape and committed robbery to obtain money for' a plane ticket to Hawaii. The jury was not compelled to believe any of his testimony. Indeed, appellant’s statement that he killed Minot with scissors was inconsistent with Dr. Park’s testimony about the weapon and with his position in this court that Guerrero’s and Dun-gan’s testimony is not probative because it shows only that he might have taken a kitchen knife, which Dr. Park had ruled out as the weapon.

Viewing the evidence in the light most favorable to the appellee, therefore, the court holds that it substantially supports the jury’s conclusion that appellant was guilty of murder in the first degree. Castro’s testimony permitted the conclusion that appellant was, on January 2, 1974, carrying out the robbery plan he had deferred two days earlier, and that this plan contemplated Minot’s death. Guerrero’s and Dungan’s testimony permitted the conclusion that appellant had taken a bayonet with him to carry out his plan. The fact that appellant took his clothes with him permits the conclusion that he then intended to make good his escape following the crime. Taken together, this evidence clearly is sufficient to support the jury’s verdict.

Appellant’s second contention is that his motion for a transfer under Fed. R.Crim.P. 21 should have been granted. Rule 21(a) permits a transfer where “there exists in the district where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial at any place fixed by law for holding court in that district.” Defendant’s contention here is that the prejudice to him was caused by the publicity surrounding an emergency public meeting of the Select Committee on Crime of the Guam Legislature. He does not contend that this meeting or the publicity attendant upon it had anything to do with him, but only that it created an undesirable “law and order” atmosphere in Guam that made it impossible for him to obtain a fair trial. The court is unaware of any case holding that such generalized publicity provides a basis for a transfer under Rule 21. In United States v. Florio, 13 F.R.D. 296 (S.D.N.Y.1952), upon which appellant relies, for example, it was clear that the publicity generated by the hearings there related directly to the defendant. Appellant’s argument here seems to be that no criminal trials could be held on Guam during the period of the anti-crime effort because an aroused populace there would not fairly judge persons accused of crime. Such a broad doctrine could wreak havoc with the Island’s judicial system and severely disrupt the orderly disposition of criminal cases in other districts since the rise in crime has become a public issue that can generate the sort of public inquiry involved in this case.

It is clear, finally, that trial counsel for appellant was not impeded by any trial court rulings during the voir dire from inquiring into each juror’s knowledge about this case or about the existence, activities or statements of the Select Committee on Crime. Counsel ably utilized the voir dire, and found that only a few of the jurors had any knowledge on any of these subjects. The defense did not exhaust its peremptory challenges. The transcript demonstrates that appellant was not impeded in the least obtaining a fair and impartial jury.

The judgment is affirmed.

       Honorable Alfonso J. Zirpoli, United States District Judge, Northern District of California sitting by designation.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re Grand Jury Proceedings. UNIVERSAL MANUFACTURING COMPANY, Appellant, v. UNITED STATES of America, Appellee. In re Grand Jury Proceedings. Norman WILNER, Appellant, v. UNITED STATES of America, Appellee.
    Nos. 74-1844, 74-1853.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 12, 1974.
    Decided Jan. 6, 1975.
    Rehearing and Rehearing En Banc Denied Jan. 24, 1975.

      F. Russell Millin, Kansas City, Mo., for appellants.
    Michael DeFeo, Atty., Dept, of . Justice, Kansas City, Mo., for appellee.
    Before MATTHES, Senior Circuit Judge, and ROSS and STEPHENSON, Circuit Judges.
   PER CURIAM.

These consolidated appeals are the result of a controversy regarding a subpoena duces tecum issued February 27, 1974, commanding the production of certain business records of Universal Manufacturing Company (Universal) by its officers before a federal grand jury in the Western District of Missouri.

The subpoena in question was not directed to Universal; however Universal did make a motion to quash the subpoena on March 11, 1974. This motipn was denied by the district court in an order dated August 16, 1974. Universal has appealed from this order.

In the meantime, Norman Wilner, President of Universal, to whom the sub-, poena was directed, also filed a motion to quash. This, too, was denied by the district court’s order of August 16, 1974. Wilner chose not to comply with the subpoena as ordered by the court, appearing before the grand jury, but refusing to bring the business records. The government thereupon filed a motion for confinement under 28 U.S.C. § 1826 on October 22, 1974. After conducting a hearing on this motion on November 1, 1974, the district court on November 4, 1974, sustained the motion and ordered Wilner confined for the term of the grand jury or until he appeared and produced the subpoenaed records. Wilner filed his appeal from this confinement order on November 5, 1974. That same day he was released on a personal recognizance bond pending appeal.

The appellants’ principal stated reason for refusing to comply with the subpoena is the claim that it was not issued for a lawful purpose within the jurisdiction of the grand jury. Specifically the appellants contend that the subpoena duces tecum was issued by a special federal attorney working for the Kansas City Field Office of the Organized Crime and Racketeering Section of the Department of Justice for the purpose of general intelligence gathering rather than in the course of presenting a case to a grand jury investigating particular violations of the law within the Western District of Missouri.

There is no merit to this claim. It is well established that a presumption of regularity attaches to a grand jury’s proceedings and hence to a grand jury subpoena. See, e. g., Beverly v. United States, 468 F.2d 732, 743 (5th Cir. 1972). Those challenging such a subpoena, therefore, have the burden of showing that such an irregularity exists. In re Grand Jury Proceedings (Schofield), 486 F.2d 85, 92 (3d Cir. 1973). Here, except for general allegations of misuse of the subpoena by strike force personnel, the appellants have made no such showing.

There is, however, more than the mere presumption of regularity to support the subpoena in this case. On October 31, 1974, the day before the confinement hearing, Kurt P. Schulke, Special Attorney, Department of Justice, filed an affidavit with the court which reads as follows:

I, Kurt P. Schulke, am a Special Attorney with the United States Department of Justice, Organized Crime and Racketeering Section and I have been assigned to the Kansas City Field Office since June 1, 1972.
On February 27, 1974, I caused subpoenas duces tecum to be served on Joyce Wilner, then President of Universal Manufacturing Company, and Norman Wilner, the Vice President and Treasurer. The subpoenas duces tecum requested the production of certain corporate documents of Universal Manufacturing Company.
These subpoenas were issued to present to the grand jury evidence of possible violations of 18 U.S.C. 1952, 1953, 1955 and 15 U.S.C. 1173 by Universal Manufacturing Company and any companies or individuals with which they dealt. The only reason for the subpoenas duces tecum was to investigate the above federal violations and any other violations related thereto. The subpoenaed documents after review by myself and other personnel connected with this office were, and still are, to be presented to the grand jury either in toto or by summary.
When Mr. Wilner appeared before the grand jury on October 22, 1974, I explained to him the grand jury’s inquiry and the possible federal violations under investigation mentioned above which also included 18 U.S.C. § 1962 but not 15 U.S.C. 1173.

We believe that this affidavit shows that the subpoenaed materials are relevant to an investigation being conducted by the grand jury and properly within its jurisdiction, and that it is not being sought primarily for another purpose. Taken together with the presumption of regularity, this affidavit clearly establishes that there is no irregularity in the issuance of the subject subpoena.

The appellants claim that the materials sought by the subpoena are so broad in scope as to be unreasonable and to constitute a “general fishing expedition.” We disagree. The subpoena was limited to records reflecting interstate transactions for a specific eighteen month period and to any records or documents specifically relating to who had the legal or beneficial ownership of Universal during a four and one-half year period. Considering the role of the grand jury in conducting the investigation and its lack of knowledge as to just what records exist and what they will reveal, we believe that this subpoena was sufficiently limited in scope.

It is true that “[a] grand jury’s subpoena duces tecum will be disallowed if it is ‘far too sweeping in its terms to be regarded as reasonable’ under the Fourth Amendment. Hale v. Henkel, 201 U.S. 43, 76, [26 S.Ct. 370, 380, 50 L.Ed. 652] (1906).” United States v. Ca-landra, 4Í4 U.S. 338, 346, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974). However, this standard leaves a great deal of leeway in which a grand jury may operate. This Court has recognized that, as a practical matter, a grand jury

has a right, as against the objection of unreasonable search and seizure, to a fair margin of reach and material in seeking information, not merely direct but also as a matter of possible light on seemingly related aspects whose significance it is seeking to uncover. Some exploration or fishing necessarily is inherent and entitled to exist in all documentary productions sought by a grand jury.

Schwimmer v. United States, 232 F.2d 855, 862-863 (8th Cir.), cert. denied, 352 U.S. 833, 77 S.Ct. 48, 1 L.Ed.2d 52 (1956).

The subpoena duces tecum involved herein was clearly not so sweeping as to make it unreasonable in scope.

Finally, appellant Wilner contends that he did not receive a fair hearing on the motion for confinement and that he was not a recalcitrant witness under 28 U.S.C. § 1826. We have examined these, contentions and find them to be without merit. Wilner has not shown the district court nor this court any just reason why he should not be compelled to comply with the grand jury subpoena. The Supreme Court has recently re-emphasized the power of a federal court to compel persons to appear and testify before a grand jury and the duty of every citizen to testify even when burdensome or embarrassing. United States v. Calandra, supra, 414 U.S. at 345, 94 S.Ct. 613. See also United States v. Dionisio, 410 U.S. 1, 9-10, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); Branzburg v. Hayes, 408 U.S. 665, 688, 92 S.Ct. 2646, 33 L.Ed.2d 626-(1972). In light of this policy we find that Wilner has offered no valid reason why he should be exempted from complying with the subpoena.

For the foregoing reasons the orders. of the district court appealed from are affirmed.

      . The subpoena duces tecum called for production of the following documents:
      The records of Universal Manufacturing Company reflecting all interstate transactions, dealings, sales and shipment of punchboards, pull tabs, and other gambling devices, and paraphernalia, for the period January 1, 1971, to July 31, 1972; and all stock certificates, stock books, minute books, sales agreements, or any type document or written instrument reflecting the legal or beneficial ownership of Universal Manufacturing Company during the period January 1, 1968 to July 31, 1972.

      . Appellants urged that we adopt the rule enunciated by the Third Circuit in In re Grand Jury Proceedings (Schofield), 486 F.2d 85, 93 (3d Cir. 1973), to the effect that when a subpoena duces tecum issued by a grand jury is challenged the government is required
      to make some preliminary showing by affidavit that each item is at least relevant to an investigation being conducted by the grand jury and properly within its jurisdiction, and is not sought primarily for another purpose.
      We decline to adopt this rule in this case and simply note that, as indicated in the text, the government here, in fact, did file an affidavit substantially meeting these tests.