United States v. Harold Gere

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.

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

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.

Gere was connected to the fire by circumstantial evidence. He was the last person in the warehouse before the fire.

His motive was proved by…

dissenting:

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

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.

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.

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…

662 F.2d 1291 9 Fed. R. Evid. Serv. 789 UNITED STATES of America, Plaintiff-Appellee, v. Harold GERE, Defendant-Appellant. No. 80-1771. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 10, 1981. Decided Nov. 13, 1981. 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…