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VALLEY NEWS/Sat., Oct, 11 1980

Jury convicts Valley man
of arson-murder in firm fire
 

By KEN HOOVER

  A federal jury convicted a Valley Businessman Friday on charges of arson-murder in connection with a fire at his North Hollywood office supply business in which a firefighter died.

  Harold F. Gere, 57, of Tarzana could receive up to life in prison when he is sentenced Nov. 10 by U.S. District Court Judge William P. Gray.

  After deliberating nearly three days, the jury found Gere guilty of arson-murder and two counts of mail fraud in connection with his unsuccessful attempt to collect on a fire insurance policy.

  Gere's codefendant, Martin R. Whiter, 47, of Woodland Hills was acquitted on the judge's directed verdict at the conclusion of the case. The judge ruled insufficient evidence was presented linking Whiter to a conspiracy.

  Los Angeles firefighter Lynn R. Hazlett, 42, died in the fire at Remington Industries, 7230 Fulton Ave., leaving behind a pregnant wife and four children.

  Hazlett became disoriented in the smoke-filled warehouse and was asphyxiated when his air supply was exhausted.

  Twenty-four other firefighters were injured in the three-hour blaze which was punctuated by periodic explosions of photocopying chemicals stred there.

  It is the first conviction in the death of a Los Angeles city firefighter, department sources said.  Indictments last May concluded a one-year investigation by a task force of the Fire Department and the U.S. Bureau of Alcohol, Tobacco and Firearms.  Los Angeles police also participated in the investigation.

  Gere was the owner of Remington, and Whiter was general manager.

  Defense attorney Stanley Stone expressed surprise at the verdict and said he would appeal. 

  "We don't feel the verdict is correct.  It is contrary to the evidence," he said.

  In the nearly empty courtroom afterward, Gere embraced his wife.

  In finding him guilty, the jury accepted the government's theory that Gere paid an arsonist to start the fire. The person who set the fore had never been found.

  During the four-week trial, Assistant U.S. Attorney Nancy Wieben Stock presented evidence of business reversals experienced by Remington prior to the fire.

  The Xerox Corp. and other firms had obtained court orders preventing Remington from using their names in selling products.

  She also presented evidence that Gere took out a $2.4-million policy with Aetna Life and Casualty on the business and that a substantial portion of the inventory had been sold before the fire.

  A friend testified that Gere asked him to find an arsonist to start the fire.  The friend said he tried but was unable to.

  Stone tied to show that Gere was well off financially and therefore without a motive to collect on the insurance money.

  Whiter's attorney, Peter Brown, argued that his client had no reason to be part of an arson plot because he had set up a business on the side and was "making a fortune" off Gere by selling himself supplies form Remington at bargin prices.

 


 

 



DATE/TIME

OP  10/13/80  1010

SPECIAL NOTICE

ON OCTOBER 10, 1980 AT 1600 HOURS, HAROLD F. GERE, 56 OF TARZANA WAS FOUND GUILTY ON TWO COUNTS OF MAIL FRAUD AND ONE COUNT OF ARSON HOMICIDE.  THE FEDERAL COURT TRIAL, WHICH BEGAN ON SEPTEMBER 9, 1980, CONCERNED THE ARSON FIRE WHICH CAUSED $400,000 DAMAGE TO REMINGTON INDUSTRIES AND RESULTED IN THE DEATH OF LOS ANGELES CITY FIREFIGHTER LYNN R. HAZLETT.

JUDGE WILLIAM P. GRAY DISMISSED CHARGES AGAINST CO-DEFENDANT MARTIN WHITER, 47, OF WOODLAND HILLS DUE TO A LACK OF EVIDENCE.

ASSISTANT UNITED STATES ATTORNEY NANCY WIEBEN STOCK STATED, "THIS IS THE FIRST CONVICTION FOLLOWING A TRIAL ON CHARGES BROUGHT IN FEDERAL COURT AND PURSUANT TO THE ARSON TASK FORCE CONSISTING OF THE LOS ANGELES CITY FIRE DEPARTMENT ARSON UNIT AND THE ALCOHOL, TOBACCO AND FIREARMS BUREAU OF THE DEPARTMENT OF TREASURY.  THIS IS DEFINITELY A PRECEDENT SETTING CASE IN THAT DURING THE PAST TEN YEARS, FIVE (5) LOS ANGELES CITY FIREFIGHTERS HAVE BEEN KILLED IN THE LINE OF DUTY AS A RESULT OF ARSON."

CHIEF ENGINEER JOHN C. GERARD ADDED, "WITHOUT THE BENEFITS OF A CLOSE WORKING RELATIONSHIP WITH THE ALCOHOL, TOBACCO, AND FIREARMS BUREAU, THIS CASE COULD NOT HAVE BEEN DEVELOPED TO A SUCCESSFUL CONCLUSION.  IT IS ALSO GRATIFYING THAT THE SERIOUSNESS OF THE CRIME OF ARSON IS BEING RECOGNIZED AND DEALT WITH IN A FIRM AND FORTHRIGHT MANNER."

SENTENCING FOR GERE IS SCHEDULED FOR NOVEMBER 10, 1980, AT 10:00 A.M. IN COURTROOM NO. 6, FEDERAL COURT.

SIGNED OCD       1       1       1       1



 


 

Pg. 8-Sec. 1--Tue., Nov 11, 1980/VALLEY NEWS

Valley businessman given
10-year sentence for arson

  A Valley businessman received a 10-year prison sentence Monday after being convicted of causing a blaze hat claimed the life of Los Angeles firefighter and injured 24 others.

  In explaining the sentence of defendant Harold F. Gere, U.S. District Court Judge William P. Gray said an example should be set so others will not be tempted to commit similar crimes.

  "He has to pay a substantial penalty," Gray said.

  Gere, 57, of Tarzana, owner of the North Hollywood office supply business that was burned, could have received a life sentence for his arson-murder conviction.

  Defense attorney Stanley H. Stone told Gray the case will be appealed--but would not specify grounds.

  Gere, whose wife was in the audience, would not comment on the sentence and left all statements to the court to his attorneys.

  During the trial, Assistant U.S. Attorney Nancy Wieben Stock contended Gere "set up" the fire and possibly had another person ignite it.  The person who lighted the fire never has been found.

  Defense attorney Barrett S. Litt unsuccessfully argued for a new trial, saying Gray's jury instruction was inadequate.

  Gray rejected the request and said his jury instructions were clear.

  The sentence included 10 years for the arson and a total of six years for two mail fraud counts; however, he said the sentences could be served concurrently.  The mail fraud charges stemmed from Gere's unsuccessful attempt to collect on a fire insurance policy after the fire
 

 
  Gere may be released from prison earlier, but the matter must be decided later by the United States Parole Commission.

  Defense attorneys asked mercy for the 57-year-old defendant, noting the arson case and mail fraud charges were Gere's first encounter with the law.'

  Gray said he had no doubt Gere was a good husband, father, neighbor and colleague, but said it  is the court's responsibility to set an example for others who may be contemplating arson.

  He said if he had been judging the case instead of a jury, he would have reached the same "guilty" verdict.

  "The fire was clearly an inside job," Gray said.

  Los Angeles firefighter Lynn R. Hazlett, 42, died in the May 2, 1979 fire at 7230 Fulton Ave., leaving behind a pregnant wife and four children.

  Hazlett became disoriented in the smoke-filled warehouse and was asphyxiated when his air supply was exhausted.

  Twenty-four other firefighters were injured in the three-hour blaze, which was punctuated by periodic explosions of photocopying chemicals stored there.

  The conviction and sentencing are the first concerning the death of a Los Angeles city firefighter.

  John C. Gerard, Los Angeles fir chief, said the sentencing may mark the beginning of a new awareness of the seriousness of the arson problem

                                                                                                 -FRANK GREENWALT
 

Daily News, November 19, 1981

Arson conviction reversed

  The arson conviction of a Tarzana man in connection with a 1979 North Hollywood fire that claimed the life of a Los Angeles City firefighter has been reversed by the 9th Circuit Court of Appeals.

  The justices ruled last week the federal government did not have jurisdiction to try Harold F. Gere, 57, on arson charges but let stand his conviction on two counts of mail fraud.

  However, despite the ruling by the three-judge panel, federal prosecutors indicated both they and Gere's attorneys would ask the Circuit Court for a rehearing.

  Gere was convicted of two counts of mail fraud and one of arson-murder after firefighter Lynn R. Hazlett died in the May 12, 1979, blaze at Gere's Remington Industries, 7230 Fulton Ave., North Hollywood.

  After a four-week trial, U.S. District Court Judge William P. Gray sentenced Gere to 10 years in prison on the arson charge and three years each for the two mail fraud counts.  Those two three-year sentences would be served concurrently.

  Assistant U.S. Attorney Nancy Wieben Stock, who prosecuted the case, said it is still too early to tell what effect the court's ruling would have on other arson cases filed by federal authorities.

  Gere's attorneys had appealed the November 1980 verdict, citing the use of hearsay evidence from a co-conspirator who was eventually acquitted, improper jury instructions and lack of federal jurisdiction.

  "Gere was connected to the fire by circumstantial evidence.  He was the last person in the warehouse before the fire," states the opinion written by Judge Eugene A. Wright.

 


  "His motive was proved by evidence that his retailing business had been undermined by litigation against him for unfair telephone sales practices," the opinion continued.

  Before the fire, Gere arranged a loan secured by inventory, and, at about the same time, an endorsement was added to his fire insurance policy providing for repayment  to the bank in the event of the destruction of the secured inventory.

  Evidence at the trial showed that other items had been moved into the warehouse and that Gere had asked an associate if he could find someone "who could make a fire."  And other testimony "largely described Gere's bleeding cash form the business, suggesting an intent to exploit the destruction of the inventory by presenting a false picture of its amount," said the justices.

  Gere could be prosecuted on arson charges in federal court, because the fire was in a building used in interstate commerce and was started by an explosive or incendiary device.

  "Gere argues that  (the law) was not meant to be a federal arson statute, but instead should be narrowly construed within the scope of the purpose for which it was formulated," states the court's opinion.

  The court said the law was meant to protect buildings against the specific evil of bombings, and there was no indication in the law's legislative history that it was meant to overlap state arson laws.

  Judge Earl H. Carroll went one step further than his two fellow judges, stating he would have also reversed the two mail fraud convictions based no the jury's having heard testimony damaging to Gere from his co-conspirator.
                                                                                                        --ADAM DAWSON
 

DAILY NEWS, NOVEMBER 22, 1981

Southland News

Overturning of federal arson
conviction has wide effect

By ADAM DAWSON
Daily News Staff Writer


  The recent court decision reversing a Tarzana man's conviction on federal arson charges in connection with a 1979 North Hollywood fire that killed a Los Angeles city firefighter will affect more than that one defendant.

  The 9th Circuit Court of Appeals not only overturned Harold F. Gere's arson conviction, they also ruled the federal government did not have any jurisdiction to try Gere in the first place.

  Unless the decision is reversed by a higher court or the law changed by Congress--a distinct possibility--it will throw a severe crimp in federal efforts to combat arson.

  "It's a lot more devastating than people realize," said one investigator with the highly successful arson task force.

  It was the task force, which includes agents from the federal Bureau of Alcohol, Tobacco and Firearms and the Los Angeles City Fire Department's arson unit, that investigated Gere and led to his 1980 conviction on arson and mail fraud charges.

  Federal charges were brought against Gere under a 10-year-old arson statute that made it a federal crime when an explosive or incendiary device is used to start a fire.

  But instead of ruling only on Gere's appeal from his conviction on one count of arson and two of mail fraud, the justices went one step further.

  They ruled Gere could not be prosecuted under the federal arson laws for the fire at his Remington Industries offices supply warehouse and office.

  They said there was no evidence in the law's legislative history to indicate Congress thought the federal statute "was meant to overlap state arson law."

  "The purpose of this section was to protect buildings against the specific evil of bombing." wrote Judge Eugene A. Wright.

  In other words, the justices said the phrase incendiary device used in the law was not meant to include fires started with gasoline and other flammable liquids.

  "I guess they felt compelled to say something," said Nancy Wieben Stock, assistant U.S. attorney who prosecuted Gere.

  As a result, the United States attorney's office  in Los Angeles and the arson task force are considering moving some of their arson cases into state court.

  In addition, they are examining whether Gere can be tried again for the same crime

  But despite the setback, which cold be reversed, the task force is not yet out of business.

  Under existing law those responsible for multiple fires can be prosecuted under the racketeering laws while those who burn buildings and use extortion on businesses involved in interstate commerce can be prosecuted under the Hobbs Act.

 

February 2, 1982

Judge upholds reduced sentence

  A federal judge Monday said he would not increase the sentence of Harold F. Gere, convicted of mail fraud in connection with a fire at his North Hollywood office supply business that resulted in the death of a Los Angeles city firefighter.

  U.S. District Court Judge William P. Gray ordered the 58-year-old Tarzana resident to surrender himself Feb. 15 to begin serving a three-year sentence.

  The 9th U.S. Circuit Court of Appeals upheld Gere's mail fraud conviction but reversed the guilty verdict on arson-homicide chargers, having the effect of reducing the sentence from 10 to three years.

  Assistant U.S. Attorney Nancy Wieben Stock told the judge during a brief hearing she was contemplating asking the appeals court to overturn the sentence so Gere could be given a new, stiffer sentence by Gray.  He cold have been sentenced to as long as 10 years on the mail fraud.

  Stock noted that another convicted arsonist, Marion Catanio, received a 13-year sentence last week in a case in which another firefighter was killed at Cugee's restaurant in North Hollywood. 

  Los Angeles Fire Chief John C. Gerard said he was disappointed by the decision.

  "It's a sad day for the citizens of Los Angeles when one of the primary protectors of their lives and property is murderously sacrificed in such a vicious and criminal manner and what would appear to be the final judgment is more appropriate to a common burglary," Gerard said.

  Gray said he had no intention of changing the sentence and the move was doomed to failure.

  "I don't see how I could properly increase the sentence," Gray said.

  Gere was president and owner of Remington Industries at 7230 Fulton Ave. which was destroyed in a three-hour blaze May 12, 1979.  Firefighter Lynn R. Hazlett, 42, became disoriented in the smoke-filled warehouse and perished.  Twenty-four other firefighters were injured.

  Testimony at the trial indicated the firm had suffered business reversals and the warehouse was destroyed to collect the insurance money.

  Gray sentenced Gere to 10 years for arson-homicide and three years on two mail fraud counts.

  However, the appeals court ruled the statute on which the arson-homicide conviction was obtained was aimed strictly at bombings and not the type of arson involved in the Remington Industries case.
                                                                                                             --KEN HOOVER
 


662 F.2d 1291 (citation)
9 Fed. R. Evid. Serv. 789 (citation)

UNITED STATES of America, Plaintiff-Appellee,
v.
Harold GERE, Defendant-Appellant. (parties)

No. 80-1771. (docket number)

United States Court of Appeals,
Ninth Circuit. (court)

Argued and Submitted Sept. 10, 1981.
Decided Nov. 13, 1981. (date)

Dennis E. Kinnaird, Munger, Tolles & Rickershauser, Los Angeles, Cal., for defendant-appellant.

Nancy Wieben Stock, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before WRIGHT and WALLACE, Circuit Judges, and CARROLL, District Judge.*

EUGENE A. WRIGHT, Circuit Judge:

1.
The appellant was convicted by a jury of two counts of mail fraud and one count of violation of 18 U.S.C. 844(i), all in connection with the arson of the building housing his two businesses. On appeal, he alleges error in admission of coconspirator hearsay, in failure to give a requested immune witness instruction, in failure to give sua sponte an accomplice instruction, and in application of 844(i) to what was simply arson.

I.

2
Gere's building was a warehouse containing offices and storage space. It housed his retail and wholesale office and photocopier supply businesses.

3

The building and its contents burned on May 12, 1979. Firemen and investigators determined from marks on the floor, burn patterns in wood and other materials, and the loci of the fires within the warehouse that the fire had been "set" for delayed ignition from outside the cargo door of the building with the use of "trailers" of photocopier fluid and fluid-soaked materials. The "trailers" were in effect fuses running from the point of ignition into the warehouse.
 
4
Gere was connected to the fire by circumstantial evidence. He was the last person in the warehouse before the fire.
 
5
His motive was proved by evidence that his retailing business had been undermined by litigation against him for unfair telephone sales practices. Testimony relating out-of-court statements by his general manager, Martin Whiter, was introduced to prove that Gere wished to get out of the business. Whiter and others testified to off-record cash sales of inventory by Gere and Whiter at discount prices. Whiter's out-of-court statements were again used to explain that Gere's intent was to take cash from the business without showing a decrease in inventory. The "paper" inventory's destruction would result in a second payment with insurance proceeds.
 
6
Before the fire, Gere arranged a loan secured by inventory. At about that time, an endorsement was added to the fire insurance policy providing for repayment to the bank in the event of destruction of the secured inventory. "Junk" inventory stored at another location was moved into the building.
 
7
Morris Singer, an acquaintance in the fire reconstruction business, testified to a conversation with Gere at a club they frequented, where Gere asked if he "knew of someone who could make a fire." Though Gere argues that this was only casual conversation, Singer approached at least one person about the possibility of setting the fire.
 
8
After the fire, Gere made a request by mail for an advance against his claims under his fire insurance policy. In another mailing he swore that he did not cause the loss.
 
9
Gere and Whiter were indicted on four counts: (1) conspiracy to commit mail fraud and violate 844(i), (2) mail fraud based upon the requested advance, (3) mail fraud based upon the sworn proof of loss, and (4) violation of 844(i) by use of an "explosive" to destroy the building, resulting in the death of one fireman and the injury of 24 others.
 
10
At the close of the evidence, Whiter's motion for acquittal on all counts was granted. The conspiracy count was dismissed as to both defendants. The jury returned a verdict against Gere on the remaining counts.

II.

A. Coconspirator Hearsay

11
Whiter's out-of-court statements were allowed before the jury under the coconspirator hearsay exception. Preceding the testimony, the court cautioned the jury that it was admitted subject to the finding of a conspiracy between Whiter and Gere. The jurors were instructed to "compartmentalize" the testimony they were to hear and not consider it until they were convinced beyond a reasonable doubt that there was a conspiracy. Concurrently, the judge instructed that the conspiracy had not yet been proved.
 
12
Before closing arguments, the court told the jury that sufficient evidence had not been presented from which it could find beyond a reasonable doubt that there was a conspiracy between Whiter and Gere. It then dismissed the first count of the indictment. The court made no specific reference to the effect of this finding on the testimony previously heard. Defense counsel did not object, or refer in closing argument to the effect of the court's no-conspiracy finding upon testimony previously presented.
 
13
Because timely objection was not made, the "plain error" standard of review is to be applied. Fed.R.Crim.P. 30; United States v. Krasn, 614 F.2d 1229, 1235 (9th Cir. 1980). We are to decide whether it is plain error not to give a final "connecting up" instruction regarding the effect of a no-conspiracy finding upon hearsay testimony conditionally admitted under the coconspirator exception to the hearsay rule.
 
14
The appellant argues that before hearsay declarations go before the jury, the judge is required to make a determination on the record whether the government has sufficiently proved conspiracy and to rule on the ultimate admissibility of the testimony. Because of failure to do so, the jury was allowed to consider hearsay testimony.
 
15
Where hearsay testimony is conditionally introduced, we have required that the trial judge make the ultimate determination of whether a foundation has been established. United States v. Eubanks, 591 F.2d 513 (9th Cir. 1979); United States v. Weiner, 578 F.2d 757 (9th Cir.), cert. denied, 439 U.S. 981, 99 S.Ct. 568, 58 L.Ed.2d 651 (1978). Before the testimony will be allowed to go to the jury, the prosecution must show that (1) the declaration was in furtherance of the conspiracy, (2) it was made during the pendency of the conspiracy, and (3) there is independent proof of the existence of the conspiracy and of the connection of the declarant and the defendant to it. Weiner, 578 F.2d at 768.
 
16
The quantum of independent proof required for the third element of the foundation requirement is "sufficient, substantial evidence to establish a prima facie case." Weiner, 578 F.2d at 768. We have recently emphasized the importance of the first element in United States v. Fielding, 645 F.2d 719 (9th Cir. 1981), holding that mere descriptions of the conspiracy to a nonconspirator are not "in furtherance of" the conspiracy.
 
17
The trial judge may make a preliminary determination of admissibility or may admit the testimony conditionally, subject to "connecting up" with the foundation to be eventually laid by the prosecution. United States v. Zemek, 634 F.2d 1159, 1169 (9th Cir. 1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1359, 67 L.Ed.2d 341 (1981) and --- U.S. ----, 101 S.Ct. 1525, 67 L.Ed.2d 821 (1981).
 
18
When there has been sufficient evidence to sustain a finding of conspiracy, we have held that giving an instruction like that given here not reversible error. We have called such an instruction "unduly generous." United States v. Miranda-Uriarte, 649 F.2d 1345, 1351 n.4, 1353 (9th Cir. 1981); United States v. Lutz, 621 F.2d 940, 946 n.2 (9th Cir.), cert. denied, 449 U.S. 859, 101 S.Ct. 160, 66 L.Ed.2d 75 (1980) and 449 U.S. 1093, 101 S.Ct. 890, 66 L.Ed.2d 822 (1980); United States v. Testa, 548 F.2d 847, 853 n.3 (9th Cir. 1977).
 
19
It is generous when the judge finds sufficient evidence to take the conspiracy count to the jury. Though there is enough evidence to permit the admission of the coconspirator hearsay, the judge thereby imposes the further requirement that the jury find conspiracy beyond a reasonable doubt before considering the hearsay testimony. In this circumstance, whether the jury performs this mental gymnastic is of little consequence, since the coconspirator hearsay is properly admitted anyway.
 
20
But, when the instruction is given preliminary to the conditional admission of the testimony, and no more is said except that the judge finds no conspiracy, whether the jury then strikes the testimony from its consideration is crucial. The danger of its not doing so is that it may consider inadmissible hearsay.
 
21
In this situation (where conspiracy has been charged, testimony conditionally admitted with an instruction that the jury is not to consider it until conspiracy is found beyond a reasonable doubt, and a no-conspiracy finding is later made and the count dismissed) we believe greater caution should be used to assure that the jury adequately connects up the no-conspiracy finding with the previously admitted testimony. The jury should be instructed to ignore the specific items of testimony conditionally admitted.1
 
22
The question here, however, is whether the trial judge's failure to so instruct constituted plain error. We hold that it did not.
 
23
The conditionally admitted testimony largely described Gere's bleeding cash from the business, suggesting an intent to exploit the destruction of the inventory by presenting a false picture of its amount. But, this was not the only evidence of the cash sales nor was it the only evidence suggesting Gere was responsible for the arson. On these facts the district judge did not commit plain error.

B. Immune Witness Instruction

24
Gere argues that Morris Singer thought he was testifying under immunity from prosecution and that the court should have given a requested immunized witness instruction.
 
25
The court entertained a proposed immune witness instruction. It declined to give that, but promised to give its "substance." Gere's counsel argued that the court would instruct the jury to consider Singer's testimony as if he were an immune witness. After instructions were given and before the jury retired, Gere objected to the instruction given.
 
26
A trial judge is given substantial latitude in tailoring instructions so long as they fairly and adequately cover the issues presented. The adequacy of the entire charge is to be reviewed in the context of the whole trial. Challenges pertaining only to the trial judge's language or formulation of the charge are reversible only for abuse of discretion. United States v. James, 576 F.2d 223, 226-27 (9th Cir. 1978).
 
27
There is doubt Mr. Singer in fact believed he was an immune witness. He denied in his testimony any explicit or implicit agreement with the government.
 
28
Assuming he did believe he was immunized, the question is whether the trial judge abused his discretion in not giving verbatim the instruction requested by the defense.
 
29
Reviewing the record, we believe the "substance" agreed upon was that Singer's testimony should be considered with caution if he in fact believed he was an immunized witness. The court expressed doubt that Singer thought he was immunized, but agreed to instruct in reference to his testimony. It instructed the jury to view Singer's testimony with suspicion if it found Singer believed himself immunized, though it interjected language suggesting Singer could be equated to other witnesses who said they believed they would not be prosecuted. Gere argues that this interjection made the instruction ambiguous.
 
30
The instruction might have been better framed, but in light of the rest of the charge, it was not an abuse of discretion.

C. Accomplice Instruction

31
Gere argues that, because Whiter was accused of being an accomplice and because Singer thought he could be accused, the court by its own motion should have given an accomplice instruction in reference to their testimony. Though it did not give an accomplice instruction, the court did give one on general credibility.
 
32
It is settled in this circuit that where an accomplice instruction is not requested, it is not plain error not to give one sua sponte. DeCarlo v. United States, 422 F.2d 237, 240-41 (9th Cir. 1970); United States v. Johnson, 415 F.2d 653, 655 (9th Cir. 1969), cert. denied, 396 U.S. 1019, 90 S.Ct. 588, 24 L.Ed.2d 511 (1970).
 
33
The district court's failure to give an accomplice instruction on its own motion was not plain error.

D. Section 844(i)

34
Section 844(i) provides penalties for destruction of a building used in interstate commerce "by means of an explosive." The penalty is more severe when a person has been killed or injured.

 

35
"Explosive" is defined in 844(j) as including, among other things, "explosive and incendiary devices" within the meaning of 18 U.S.C. 232(5).
 
36
According to 232(5), "explosive or incendiary device" means
 
37
(C) any incendiary bomb or grenade, fire bomb, or similar device, including any device which (i) consists of or includes a breakable container including a flammable liquid or compound, and a wick ....
 
38
Gere argues that 844(i) was not meant to be a federal arson statute but instead should be narrowly construed within the scope of the purpose for which it was formulated. We agree.

39

The legislative history of 844(i) describes congressional concern with bombings rampant in the 1960's and '70's. Though there is language suggesting broad jurisdiction, it relates to buildings in interstate commerce and not to the manner by which they are destroyed. The cross-reference to 232(5), which appears to bring within the section "molotov cocktails" and similar devices, should not be read to broaden the section's reach as the government proposes.
 
40
The purpose of the section was to protect buildings against the specific evil of bombing. There is no indication that it was meant to overlap state arson law relating to buildings in interstate commerce. Cf. United States v. Hepp, 656 F.2d 350 (8th Cir. 1981) (leaking LNG meter allowed to explode). We reverse Gere's conviction of a violation of 844(i).

41

AFFIRMED in part, REVERSED as to the 844(i) count and REMANDED for imposition of corrected sentence. The mandate will issue now.

CARROLL, District Judge, dissenting:

42
I concur in the reversal of Gere's conviction of violating 18 U.S.C. 844(i).

43

I would also reverse the mail fraud counts and remand for a new trial as to those counts. In my view, the totality of the instruction problems about which Gere complains affected his substantial rights to a fair and impartial trial.

44
A significant portion of the government's case against Gere involved statements made by the putative co-conspirator and conditionally admitted pending establishment of the conspiracy. Gere moved for a mistrial when the conspiracy count was dismissed. The motion was based on the nature and extent of the co-conspirator statements heard by the jury during the four and one-half weeks trial. The court denied the motion, but agreed to further instruct the jury to the effect that Gere could not be convicted on the basis of what the dismissed co-conspirator said or did. The court did not provide counsel with a copy of the proposed instruction, nor did it state on the record the full text of any instruction.

45

The court failed to give the cautionary instruction in its charge and trial counsel failed to make an additional request or objection before the case went to the jury. Under these circumstances, I would find reversible error. Fed.R.Crim.P. 52, Ramer v. U.S., 390 F.2d 564, 580 (9th Cir. 1968). See also U. S. v. Kelinson, 205 F.2d 600, 601-602 (2nd Cir. 1953).

46

This court's opinion sets forth the background for Gere's second problem with the trial court's instructions having to do with the so-called immune-witness instruction. The trial court had agreed to give the "substance" of an instruction requested by Gere, but did not advise counsel as to the text of the court's proposed revision either before argument or the giving of the "substance" instruction to the jury. Again, the problem arises from counsel not having an opportunity to object in a meaningful and timely manner. An appellate court is then left to resolve what the trial court "agreed" to do, and decide whether the defendant was prejudiced by the instruction as given. The procedure in this instance would appear in conflict with the provisions of Fed.R.Crim.P. 30 that "The court shall inform counsel of its proposed action upon the requests (of counsel) prior to their arguments to the jury ..."
*

Of the District of Arizona

1

Our analysis is consistent with the Federal Rules of Evidence

Though we have not explicitly said so, the preliminary determination of admissibility is for the judge under Rule 104(a). Rule 104(a) codifies the law of this circuit that has existed since before the Rules' promulgation. See Carbo v. United States, 314 F.2d 718, 735-38 (9th Cir. 1963).

The trial judge fulfills his Rule 104(a) responsibility when he allows a conspiracy count to go to the jury, even though he may not explicitly find on the record that the foundation requirement has been fulfilled or instruct the jury that it may consider the coconspirator hearsay statements. It is within the judge's discretion not to make such statements because of their potential for prejudice. When the judge finds, explicitly or implicitly, that the foundation has been laid, the defendant cannot complain if he then imposes the further requirement that the jury consider the coconspirator hearsay statements only if it finds conspiracy beyond a reasonable doubt. See, e. g., United States v. Miranda-Uriarte, supra.

The judge fulfills his Rule 104(a) responsibility when he makes an explicit finding that the government has not introduced evidence sufficient to lay the foundation for admissibility or when he instructs the jury not to consider the coconspirator statements.

See generally Marcus, Co-Conspirator Declarations: The Federal Rules of Evidence and Other Recent Developments, From a Criminal Law Perspective, 7 Am.J.Crim.L. 287 (1979); Comment, The Impact of Federal Rule of Evidence 104 on the Coconspirator Exception to the Hearsay Rule, 28 Emory L.J. 1115 (1979).

The judge here explicitly found that there had not been introduced enough evidence for the jury to find conspiracy beyond a reasonable doubt. If connected immediately to the instruction given before the prior conditional admission of coconspirator hearsay statements, this would signal to the jury that it could not consider those statements to determine Gere's guilt on the remaining counts. With this no-conspiracy finding, the judge fulfilled his Rule 104(a) responsibility.

The narrow issue we decide is whether, in addition to the pre-admission instructions and the no-conspiracy finding and in the absence of objection or request, the judge was required to describe specifically the effect of the no-conspiracy finding on the previous testimony.


 


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