904 F. 2d 711 - United States v. Leong

No. 89-10223.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER and CANBY, Circuit Judges, and JUDITH N. KEEP,* District Judge.

MEMORANDUM**

Kevin Leong appeals his conviction, following a jury trial, for obstruction of a grand jury investigation, in violation of 18 U.S.C. Sec. 1505. Specifically, Leong argues that there was insufficient evidence to support the jury's guilty verdict. After viewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, 110 S.Ct. 179 (1989). We therefore affirm.

Leong was an acquaintance of Alion Andersson, who had been convicted in 1984 for drug offenses. See generally, United States v. Andersson, 813 F.2d 1450 (9th Cir.1987). In April 1985, both Andersson and Charles W. Hinck, an associate of Andersson, were subpoenaed to testify before a grand jury sitting in San Jose, California. While Hinck declined to testify and was sentenced for criminal contempt, Andersson agreed to cooperate with the government and a series of meetings commenced between law enforcement officials and Andersson. Prior to one of these meetings, Leong went to visit Andersson at jail, and there counseled him to lie about his drug connections. During this conversation, Andersson was wired for sound at the government's request, and this taped conversation served as the government's primary evidence against Leong at trial.

Section 1503 of 18 U.S.C. makes it unlawful to "corruptly ... influence[ ], obstruct[ ], or impede[ ], or endeavor[ ], to influence, obstruct, or impede, the due administration of justice." The elements of the offense are:

(1) that there was a pending federal judicial proceeding;

(2) that the defendant knew of the proceeding; and,

(3) that he intentionally interfered with or attempted to interfere with it.1

First, Leong argues that the second element of the crime was not met because there was insufficient evidence that he "knew of" a pending grand jury proceeding. See United States v. Washington Water Power Co., 793 F.2d 1079, 1084 (9th Cir.1986) ("A violation of section 1503 requires a showing that the defendant[ ] had knowledge that a federal proceeding was pending").

In Washington Water Power Co., 793 F.2d at 1085, the defendant's knowledge "either that Gulino had been indicted or that Gulino would be tried soon," was sufficient to allow "[a] rational trier of fact [to conclude] beyond a reasonable doubt that the defendants knew that a federal proceeding was pending.... Accordingly, there was sufficient evidence of the required knowledge on the part of the defendants." Id. (citing Jackson v. Virginia, 443 U.S. 307, 324 (1979)).

Here, the government introduced evidence that both Andersson and Hinck had been subpoenaed to testify before a grand jury, that Hinck had already been called to testify, that law enforcement officials were still talking to Andersson concerning the subject of the grand jury's probe, and that Leong was aware of all these developments. Based upon this evidence a rational jury could conclude that Leong "knew of" a pending grand jury proceeding.

Leong also argues that even if there was sufficient evidence of his knowledge of a grand jury proceeding, there was insufficient evidence that he knew on November 26, 1985 that Andersson was likely to testify before that proceeding. Leong is correct that the third element of the crime requires the government to prove "that the defendant[ ] knew that the person was 'expect[ed] to be called to testify.' " Washington Water Power Co., 793 F.2d at 1084 (quoting United States v. Jackson, 513 F.2d 456, 459 (D.C.Cir.1975)). Leong argues that there was no direct evidence that he knew on November 26, 1985 that Andersson would be called to testify before the grand jury. However, the government did introduce evidence that Leong knew that both Andersson and Hinck were subpoenaed to testify in April, 1985, that Andersson had knowledge relevant to the grand jury's investigation and that Leong knew law enforcement agents continued to question Andersson about his activities related to the grand jury's investigation. On the basis of this evidence, a rational jury could have found that Leong knew that Andersson was expected to be a witness before the grand jury. See Washington Water Power Co., 793 F.2d at 1085 (evidence that defendant knew subject was likely to be called to testify is sufficient to prove this element).

Finally, Leong argues that even if he counseled Andersson to lie, this advice was limited to lying to FBI officials, and not to a grand jury. The evidence did indicate that Leong advised Andersson to be selective in the facts he admitted to "law enforcement officials." However, nowhere in the recording did Leong specifically qualify his advice as applying only to law enforcement officials. Moreover, the conversation indicated that Leong's advice was intended to counter the effect on the grand jury of evidence Hinck might have provided.2 It was not unreasonable for the jury to infer from this conversation that Leong intended Andersson to fabricate a story to the grand jury. Washington Water Power Co., 793 F.2d at 1085.

A reasonable jury could find all of the elements of the crime. Therefore we AFFIRM.