United States v. Richard Marion Dota, AKA Dickie Stevens
Docket: 93-50011
Court: Court of Appeals for the Ninth Circuit; August 31, 1994; Federal Appellate Court
Richard Dota appeals his conviction and sentence for conspiracy, murder for hire, and the use of a firearm during a violent crime, which the Ninth Circuit affirms. Testimony presented at Dota's trial revealed that Julius Schill, president of APS, attempted to engage his secretary, Cynthia Asher, romantically. Following her rejection, Schill met with Dota in August 1991, where he signed a contract to hire Dota, allegedly for a sales position, and prepared a $21,000 check for him. The prosecution contended this meeting was a facade for paying Dota to arrange the murder of Asher's boyfriend, Wilbur Constable.
Subsequent evidence showed Dota provided Blake Yoon, a prior associate, with $3,000 and instructions to kill Constable. After an initial failed attempt due to Yoon's arrest, Dota and Yoon planned to lure Constable from his workplace. On October 11, 1991, Yoon and accomplices attacked Constable, who was severely beaten and shot but survived. Following the attack, Dota communicated with Schill and Yoon about Constable's condition. Yoon later confessed to law enforcement, leading to the arrest of his accomplices.
Yoon reported to federal agents that Dota had hired him to kill Constable and subsequently made multiple phone calls to Dota, who, unaware of Yoon's arrest, made several incriminating statements. Dota advised Yoon to deny any knowledge to authorities, citing a past experience where he avoided charges by doing so. He also discussed a plan to attribute the Constable assault to Edward Pucci, a deceased bookmaker, and instructed Yoon to communicate to Caravaggio and Smith to remain silent. Dota was arrested on January 6, 1992, in Las Vegas, and subsequently indicted alongside Schill, Yoon, Caravaggio, and Smith for conspiracy, murder for hire, and firearm offenses. After his arraignment on January 27, 1992, and the others' appearances on February 10, 1992, the trial was initially set for March 2, 1992. Following Schill’s motion for a continuance, the court granted an extension to May 19, 1992, finding excludable time under the Speedy Trial Act. Yoon, Smith, and Caravaggio pleaded guilty before the trial, while the jury acquitted Schill and convicted Dota. Dota appealed, arguing his trial did not commence timely per the Speedy Trial Act, which mandates a 70-day limit from indictment or initial appearance, excluding certain delays. The court justified the continuance based on the need for the defendants to review extensive evidence and for the government to complete investigations, determining that the interests of justice outweighed the right to a speedy trial.
Dota contends that the district court erred in its factual findings, particularly arguing that the additional time requested by the codefendants and the government’s attorneys was unnecessary. He cites United States v. Theron, asserting that the case demonstrates the court must prioritize the interests of the defendant and the public over those of codefendants, deeming an ends-of-justice continuance based on codefendant needs ineffective. Dota further disputes the district court's determination that February 10th marked the start of his speedy trial clock, acknowledging the typical rule that it begins with the last codefendant's appearance but arguing his case should be an exception due to the nature of the three codefendants' roles as future government witnesses, their subsequent guilty pleas, and the government's control over their appearance in court. Dota claims his clock should have started on January 27, 1992, when he was arraigned, leading to a trial 77 days later, which he argues warrants dismissal due to an extra seven days beyond the limit.
The court rejects Dota's arguments, affirming that his speedy trial clock commenced on February 10th with the codefendants’ appearances. It describes the 14-day delay from January 27th to February 10th as reasonable for the purpose of transferring the codefendants into federal custody. The court references precedents supporting the reasonableness of similar delays and concludes that there are no grounds to deviate from the established rule regarding the start of the speedy trial clock. It finds that Dota was tried within the permissible 70-day limit, and the government did not exploit its authority to delay the proceedings. Dota fails to provide evidence of any unreasonable delay, leading the court to uphold the district court's findings.
The district court's decision to grant a continuance was justified as it aligned with the ends-of-justice provision under 18 U.S.C. Sec. 3161(h)(8)(B)(iv), which allows for additional preparation time for trial. Although the government conceded that the case was not "complex" as defined under Sec. 3161(h)(8)(B)(ii), the factual record was complicated, necessitating more time. The court also considered the needs of codefendants' counsel, referencing United States v. Butz, where a continuance was granted to codefendants and deemed reasonable despite the defendant's opposition. Dota failed to demonstrate that the district court's factual findings supporting the continuance were clearly erroneous.
Regarding Dota's claim of outrageous governmental conduct due to the use of Yoon, a federal parolee, the court noted that Yoon was not considered an informer as defined in legal precedent. The district court found that Yoon acted as a "cooperating coconspirator," and had already committed crimes while on parole, rendering the policies aimed at preventing his involvement in crime inapplicable. The government argued, supported by case law, that Yoon did not meet the criteria for being classified as an informer.
Government conduct must be "so grossly shocking and so outrageous as to violate the universal sense of justice" for dismissal to be warranted. The government argues that its use of Yoon did not meet this threshold, referencing cases where similar conduct was deemed acceptable, such as the FBI's use of an informer who became romantically involved with a defendant (United States v. Simpson) and allowing cooperation for lesser sentences to secure convictions (United States v. Van Winrow). The district court correctly determined that Yoon was not an informer and that even if she were, her use by the prosecution did not constitute outrageous conduct.
Dota claims the Los Angeles Police Department (LAPD) failed to disclose a file related to Pucci, which he argues was relevant under Brady v. Maryland, as it could have impacted the trial's outcome. The district court found the records irrelevant after an in-camera review. Dota asserts that evidence is relevant if its disclosure could alter the trial's result, which must be evaluated under the "reasonable probability" standard established in United States v. Bagley. The court has not applied a uniform standard of review for Brady challenges, typically favoring de novo review but also considering clear error and abuse of discretion.
After reviewing the LAPD file, the court concluded that it contained no relevant materials for Dota's case under the Bagley standard, affirming the district court's decision regardless of the review standard applied. Dota also challenges several testimonies under Federal Rule of Evidence 403, with such determinations being reviewed for abuse of discretion.
The prosecution presented statements from four witnesses—Asher, Christman, McAllister, and Yoon—indicating Dota's connections to organized crime, despite Dota's objection based on Rule 403, which he argued rendered the evidence unduly prejudicial compared to its probative value. Dota contended these statements implied a greater likelihood of his involvement in murder for hire. The district court upheld the admissibility of this testimony, citing its relevance to witness Schill's perception of Dota and his potential business dealings with him, including whether to contract him for murder. The court noted that Schill believed Dota attempted to project a mafioso image, which was pertinent to the case.
Additionally, the jury heard evidence of Dota's intimidation tactics in debt collection and his role in the conspiracy to murder Constable, further supporting the relevance of the witnesses' statements about Dota's mafia connections. The court referenced precedents where gang affiliation and associations were deemed probative without being unduly prejudicial.
Yoon's testimony was also considered relevant, particularly in light of Dota's defense strategy to attribute the conspiracy to another individual, Pucci. Although Yoon's statement about Dota's potential benefit from killing Constable was speculative, the court allowed it to stand while clarifying its speculative nature, as it was relevant to Dota's defense.
Regarding the Palm Springs evidence, the district court permitted the jury to hear taped conversations between Dota and Yoon, in which Dota recounted being arrested with multiple identification cards and claimed this led to time in Leavenworth, asserting he was released by feigning ignorance. Dota argued that this narrative, coupled with the mafia references, was also unduly prejudicial under Rule 403, but the court did not find merit in this claim. Overall, the trial court's decisions regarding the admissibility of the evidence were deemed appropriate and within its discretion.
The district court's decision to allow the evidence was upheld, as Dota's narrative aimed to persuade Yoon to remain silent regarding police inquiries post-arrest. Yoon, under government direction, communicated concerns about the police asking about a murder, prompting Dota to recommend silence and share a story to support this advice. Throughout their taped conversations, Dota frequently denied knowledge of the attempted murder, yet the jury could infer his involvement based on the context and content of the discussions, which corroborated Yoon's testimony about Dota leading the conspiracy. The probative value of the Palm Springs story outweighed any potential prejudice to Dota, especially since the incident was minor and a cautionary instruction was provided to the jury.
Dota also challenged the prosecution's closing argument, alleging unfair manipulation through the use of edited tape excerpts. However, the court found that the prosecution has considerable leeway in closing remarks, and any claims of impropriety must demonstrate significant prejudice, which was not established in this case. The edits made by the prosecution were deemed appropriate and did not mislead the jury regarding Dota's guilt, as he had the opportunity to present counter-material if desired.
Finally, Dota's assertion that his guilty verdict was "impossible" was rejected. He argued that the government's case hinged on Schill's involvement, and Schill’s acquittal meant no crime occurred. However, Dota's claims did not undermine the conspiracy charge, as the prosecution's argument established Schill as the primary suspect without negating Dota's own culpability.
Dota asserts that the indictment cannot be amended to replace the agreement with Schill with a different one, even if the jury might have reached the same verdict under different charges. He cites United States v. Lokey, which defines an impermissible constructive amendment as allowing a conviction based on a factual basis that alters an essential element of the crime. The court rejects Dota's claims, stating that his conviction is not invalidated by Schill's acquittal, as inconsistent verdicts do not warrant reversal. The court refers to United States v. Hart, which notes that the jury's decision may reflect an erroneous acquittal of Schill rather than a different factual basis for Dota's conviction. The court emphasizes that jury verdicts are insulated from review for inconsistency, as established in United States v. Powell.
Regarding sentencing, the court reviews factual findings for clear error and examines the Presentence Report (PSR), which Dota contests, particularly the involvement of Schill and Yoon. The district court concluded that the evidence supported Dota's involvement with Yoon and that Schill's role in the case was likely irrelevant, as other individuals were implicated in the conspiracy. The government argues that Schill's acquittal does not negate facts related to Dota's conviction, as Powell prohibits analyzing the reasons behind jury inconsistencies. The court notes that without juror insight, any attempt to decipher the rationale for Schill's acquittal would be speculative.
The district court's factual findings regarding Dota and Yoon are affirmed, with strong evidentiary support from the trial, indicating that these findings are not clearly erroneous. The court also found evidence supporting the involvement of Schill or another individual in the conspiracy, while speculation about Schill's acquittal is prohibited. Yoon's testimony and reports about Dota's actions suggest that Dota acted under someone else's direction. The indictment mentioned involvement of "others, unknown," which further supports the notion that someone besides Schill may have been involved.
The district court determined that money was exchanged to facilitate the crime, leading to a four-level increase in Dota's offense level under U.S.S.G. Sec. 2A2.1(b)(2). Dota challenges this finding on three grounds: questioning Yoon's credibility, asserting the $21,000 payment was for legitimate business, and claiming the payment was a minor part of the conspiracy. However, the appellate court will not disturb the district court's finding due to the evidentiary support and the principle that credibility determinations are not to be overturned on appeal.
Additionally, the district court found that Dota played a leadership role in the crime, justifying a four-level increase in the offense level under U.S.S.G. Sec. 3B1.1(a) due to the involvement of five or more participants. Dota argues there is no evidence of control over Caravaggio and Smith and challenges the count of participants, claiming that with Schill acquitted, only four participants are established. Dota cites precedents requiring some control or organizational authority to qualify as a leader, referencing cases where findings of leadership were overturned due to insufficient evidence.
The district court's ruling is upheld, clarifying that Section 3B1.1 does not necessitate that Dota was aware of or controlled all participants in the criminal activity. It only requires that Dota be classified as an "organizer or leader" in a crime involving five or more participants. Citing United States v. Barnes, the court established that lacking direct supervision over multiple participants does not negate a leadership role. Dota's recruitment and control of Yoon were sufficient for this classification.
Dota's argument that all five participants must be foreseeable is dismissed as Section 3B1.1 does not impose such a requirement. The court found no error in determining that Dota should have anticipated Yoon hiring others. Furthermore, Schill can still be regarded as a participant in criminal activity despite not being convicted, as per U.S.S.G. Sec. 3B1.1 application note 1. Distinctions were made with prior cases, emphasizing that the reasons for Schill's acquittal do not negate his involvement as determined by the district court based on preponderance of evidence.
Regarding obstruction of justice, the district court increased Dota's offense level by two points under U.S.S.G. Sec. 3C1.1 for instructing Yoon to mislead law enforcement and to warn associates against disclosing a murder plan. Dota contended that his statements lacked clarity to constitute a threat, referencing case law that found ambiguous statements insufficient for enhancements. However, the court affirmed the district's finding, distinguishing it from similar cases as Sec. 3C1.1 lacks the express threat requirement present in other guidelines. The precedents cited illustrate a broader interpretation of threats under Sec. 3C1.1, reinforcing the district court's conclusion that Dota's actions were intended to obstruct justice.
Defendant statements that can be interpreted as threats, regardless of whether directed at the victim, qualify as obstructing justice. The court highlighted that the obstruction of justice does not necessitate unambiguous conduct, as established in Jackson's case. It was noted that threats or intimidation toward co-defendants or witnesses, whether direct or indirect, fall under this definition. The district court found that Dota threatened Smith and Caravaggio through Yoon, and this finding was deemed not clearly erroneous. Additionally, Dota's directive to Yoon to lie to authorities further supported the conclusion of attempted obstruction. The ruling was affirmed by Hon. Edward C. Reed, Jr., with a note that Dota's arguments regarding the timing of the clock starting on February 10th were countered by the government's earlier suggestions during the oral motion. The case Dota referenced, United States v. Fuentes, pertained to the foreseeability of co-conspirator conduct and did not involve Section 3B1.1.
