United States v. Jose Martin Barker

PER CURIAM.

Jose Martin Barker appeals his conviction of assault on a federal officer (Counts One and Two), deprivation of civil rights (Count Three), making false statements to the Immigration and Naturalization Service (INS) (Count Four), and perjury before a grand jury (Counts Five and Six), in violation of 18 U.S.C. §§ 111, 242, 1001, and 1623 (1976), respectively. Barker was sentenced to one year of imprisonment on each of the six counts, the sentences to be served concurrently. On appeal, Barker argues that the district court erred in denying his motions to dismiss the indictment and to sever the perjury counts. He also urges as to count four that the denials contained in the affidavit alleged to be false did not constitute a “false statement,” or relate to a matter within the jurisdiction of the INS, for purposes of 18 U.S.C. § 1001.

In late 1979, the INS launched an investigation in response to numerous allegations of civil rights violations occurring at the Border Patrol Checkpoint at San Clemente, California. Agents Javier Dibene and Juan Espinal participated in the investigation conducted by the INS Office of Professional Responsibility.

Operating undercover, Dibene and Espinal posed as illegal aliens and boarded a bus in Oceanside, California on April 8, 1981. Dibene carried a counterfeit 1-151 card. At 2:30 a. m., the bus was stopped at the San Clemente checkpoint. Border Patrol Agent Fullen boarded the bus, questioned Dibene and Espinal regarding their citizenship, and took the two undercover agents into the checkpoint station.

Fullen took Dibene into a processing room, patted him down, questioned him, and then placed him in a detention cell. There, Dibene deliberately drew attention to his counterfeit 1-151 card. The detention officer returned Dibene to the processing room, where he remained locked for an hour, and gave the card to Fullen.

Barker entered the room while Fullen was questioning Dibene and was shown the card. Barker asked Dibene repeatedly where he had gotten the card. Finding Dibene’s responses unsatisfactory, Barker became angry and slammed Dibene against the wall of the room several times. Barker then raised a chair over his shoulder as if he were about to hit Dibene in the head with it, telling Dibene that he was going to “bust his head wide open.” Barker then left the processing room.

On April 21, 1980, the INS furnished Barker with written notice of the “opportunity” to furnish a sworn statement in response to “[t]he allegation that you physically abused an individual ... by grabbing him by the shoulders and slamming him against the wall three times, and then in a threatening manner you raised a chair over your head as if to strike [him].” Barker presented a written response to the INS on April 23, 1980. The statement read, in part: “The man I remember as [Dibene] was in the station at the same time. My contact with him was only incidental and at no time did I touch him as alleged.”

Barker subsequently testified before a grand jury investigating activities at the San Clemente checkpoint. He denied both slamming Dibene against a wall and threatening him with a chair.

At his trial, Barker denied assaulting Dibene. He testified that he had acted on the advice of counsel in preparing his written statement to the INS and in responding to questions before the grand jury. He further testified that he did not intentionally make any misstatements in his testimony before the grand jury.

I.

Prior to trial, Barker moved to dismiss the indictment on the ground that only eight of the eighteen grand jurors who voted for a true bill attended all of the sessions at which evidence was presented.¹ The district court denied the motion.

Subsequent to the trial court’s ruling, this court reversed the decision on which Barker relied below. United States v. Leverage Funding Systems, Inc., 637 F.2d 645 (9th Cir. 1980), cert. denied, 452 U.S. 961, 101 S.Ct. 3110, 69 L.Ed.2d 972 (1981). Therein we held that “[n]othing requires that every [grand] juror voting to indict attend every session.” Id. at 649.² On appeal, Barker acknowledges Leverage Funding, but contends that a different result should obtain when the grand jury considers a charge of perjury. He argues that because a perjury charge rests on the grand jurors’ determination of the credibility of the prospective defendant as opposed to the credibility of other witnesses, it is necessary in perjury cases for each grand juror to observe the demeanor of the witnesses.

Leverage Funding is dispositive here. We are bound by the presumption regarding grand juror attendance established in that decision. As in Leverage Funding, we are confronted here only with “the possibility that an absent juror” did not hear sufficient evidence on a particular count. Leverage Funding requires that, in the absence of contrary evidence, we presume that “grand jurors have properly performed their duties” and that “a grand juror who votes to indict an individual on a particular count has heard sufficient evidence.” Id. Thus, whether or not the rule regarding the necessity for a grand juror to hear specific witnesses is different in perjury cases, or more particularly, in cases where the act of perjury allegedly occurs before the grand jury, we must presume, in the absence of contrary evidence, that the grand jurors voting to indict here heard all the evidence on the perjury counts they were required to hear in order to perform their duties properly. Accordingly, we affirm the district court’s refusal to dismiss the indictment.

II.

Prior to trial, Barker moved to sever the perjury and false statement counts from the remaining substantive counts. The district court denied the motion. Barker did not renew the motion during the course of trial. On appeal, he argues that the refusal to sever denied him a fair trial. He concedes that ample authority exists which allows the joinder of a perjury count with a substantive count, but asserts that none exists in which the perjury charge consists of a simple denial of the acts charged in the substantive counts.³ Barker argues that the joinder of counts impermissibly informed the petit jury that neither the INS nor the grand jury believed his denial. This he contends served to impeach the testimony he gave on the substantive counts at trial. He also argues that allowing the government to utilize his testimony before the grand jury for purposes of its prosecution of the perjury counts compelled him to testify regarding the substantive offenses.

The government argues inter alia that Barker failed to preserve this issue on appeal because he did not renew the motion at the close of evidence. A motion to sever must be timely made and properly maintained. United States v. Kaplan, 554 F.2d 958, 965 (9th Cir.), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977). If the motion is not diligently pursued at trial, it will be considered waived for purposes of appeal. United States v. Burnley, 452 F.2d 1133, 1134 (9th Cir. 1971). Ordinarily, in order to preserve the point on appeal, the motion must be renewed at the close of evidence, United States v. Figueroa-Paz, 468 F.2d 1055, 1057 (9th Cir. 1972), although “[t]his requirement is not an inflexible one.” Kaplan, 554 F.2d at 965. Here, Barker failed to renew his motion both during and at the close of trial. Accordingly, we hold that he waived the motion for purposes of appeal.

III.

Barker’s remaining arguments are' addressed solely to his conviction on count four, making false statements to the INS, in violation of 18 U.S.C. § 1001. The government urges that we summarily affirm the conviction on count four under the concurrent sentence doctrine. United States v. Ford, 632 F.2d 1354, 1365 (9th Cir. 1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1399, 67 L.Ed.2d 369 (1981); United States v. Martin, 599 F.2d 880, 887 (9th Cir.), cert. denied, 441 U.S. 962, 99 S.Ct. 2407, 60 L.Ed.2d 1067 (1979). We do so. As previously noted, Barker was sentenced to one year on each of the six counts of which he was convicted, the sentences on all counts to be served concurrently. We have concluded that five of Barker’s six concurrent one year sentences must be affirmed and can foresee no adverse collateral legal consequences which will result from our use of the concurrent sentence doctrine as to the sixth.

AFFIRMED.

1 . The grand jury that indicted Barker held 12 sessions at which evidence was taken. Of the 18 grand jurors who voted unanimously to indict, eight were present at each session at which evidence was taken. Of the remaining ten grand jurors, six did not attend one session, two did not attend two sessions, and two did not attend three sessions.

2 . In Leverage Funding, we determined that an indictment satisfied the fifth amendment and Fed.R.Crim.P. 6(a) & (f) where: “(1) the grand jury returning the indictment consisted of between 16 and 23 jurors, (2) every grand jury session was attended by at least 16 jurors, and (3) at least 12 jurors vote to indict.” 637 F.2d at 649. In the present case, a grand jury consisting of 18 jurors unanimously voted to indict. Barker does not contend that fewer than 16 jurors attended each session.

3 . The substantive counts of the indictment charged Barker with assaulting Javier Dibene. The false statement and perjury counts, which Barker sought to sever from the substantive counts, charged that he knowingly and falsely denied the assault in a written statement to the INS (Count Four) and in testimony before the grand jury (Counts Five and Six).