United States v. Gale Nace and Nathan J. Warren, Sr., United States of America v. Ned Warren, Sr., and Gale Nace

Gale Nace and Nathan Warren, Sr., appeal their convictions under 18 U.S.C. § 894 for using extortionate means to collect an extension of credit. The separate appeals have been consolidated because of the similarity of many of the issues.

This prosecution grew out of alleged threats made by Warren and Nace in their attempt to collect a loan from Edward Dennis Kelly. The record shows that Kelly and Warren were associated in several business ventures. They agreed to acquire and jointly manage several bars through corporate entities. After the bars were acquired, Kelly informed Warren that the operations needed an $8,000 loan. Warren arranged for Kelly to borrow $8,000 from Nace. On August 29, 1973, Nace advanced the funds to Kelly in exchange for a promissory note and a security interest in certain liquor licenses.

Kelly and Warren sold two of the bars. While awaiting the receipts from the sales, Kelly suspended payment on the $8,000 loan. Nace demanded his money and told Kelly that he was not concerned with Kelly’s arrangements with Warren. During the second week in October, 1973, Nace approached Kelly and told him that if he did not pay Nace could have an arm broken for…

(dissenting):

I respectfully dissent. Because of the grossly inflammatory and prejudicial evidence unlawfully injected by the prosecution near the end of a bitterly contested trial, the conviction should be reversed.

Although there is no “litmus-paper” test for determining whether a new trial should be granted when the prosecution interjects evidence that is inadmissible and prejudicial to the accused, the-courts have considered a number of factors. These include the inherent prejudice of the evidence presented, the forcefulness and timeliness of the trial court’s curative instructions, and the overall strength of the prosecution’s case. See United States v. Martinez, 514 F.2d 334 (9th Cir. 1975); United States v. Bashaw, 509 F.2d 1204 (9th Cir. 1975); Thurman v. United States, 316 F.2d 205 (9th Cir. 1963).

It is difficult for me to conceive of more inherently prejudicial evidence than a showing that an accused has placed a murder contract with the “Mafia.” The law is particularly protective of one accused of murder and underworld taint. See United States v. Love, 534 F.2d 87 (6th Cir. 1976) (conviction reversed because the defendant was asked if he was part of another…

561 F.2d 763 2 Fed. R. Evid. Serv. 733 UNITED STATES of America, Appellee, v. Gale NACE and Nathan J. Warren, Sr., Appellants. UNITED STATES of America, Appellee, v. Ned WARREN, Sr., and Gale Nace, Appellants. Nos. 76-1794, 75-3183 and 75-3509. United States Court of Appeals, Ninth Circuit. Sept. 21, 1977. Rehearing and Rehearing En Banc Denied Nov. 8, 1977. Jordan L. Green, of Debus, Busby & Green Ltd., Phoenix, Ariz., John J. Flynn, of Flynn, Kimerer, Thinnes, Derrick & Lindholm, Phoenix, Ariz., argued for appellants. Michael B. Scott, Asst. U. S. Atty., Phoenix, Ariz., Kevin F. O'Malley, Sp. Atty., Los Angeles, Cal., argued for appellee. Appeals from the United States District Court for the District of Arizona. Before ELY, GOODWIN and ANDERSON, Circuit Judges. OPINION GOODWIN, Circuit Judge: 1 Gale Nace and Nathan Warren, Sr., appeal their convictions under 18 U.S.C. § 894 for using extortionate means to collect an extension of credit. The separate appeals have been consolidated because of the similarity of many of the issues. 2 This prosecution grew out of alleged threats made by Warren and Nace in their attempt to collect a loan from Edward Dennis Kelly. The…