United States v. Juan Paul Robertson, United States of America v. Juan Paul Robertson

15 F.3d 862 38 Fed. R. Evid. Serv. 1340 UNITED STATES of America, Plaintiff-Appellee, v. Juan Paul ROBERTSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Juan Paul ROBERTSON, Defendant-Appellee. Nos. 92-50395, 92-50460. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 5, 1993. Decided Feb. 1, 1994. Glenn Stewart Warren, San Diego, CA, for the defendant-appellant, cross-appellee. Steven W. Peterson, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee, cross-appellant. Appeal from the United States District Court for the Southern District of California. Before REINHARDT, T.G. NELSON, Circuit Judges, and KAUFMAN, * District Judge. T.G. NELSON, Circuit Judge: 1 * OVERVIEW 2 Juan Paul Robertson (Robertson) appeals his jury convictions for conspiracy and possession of cocaine with intent to distribute (Counts One through Four) and RICO (Count Six). Because we conclude that the Government failed to prove that the enterprise affected interstate commerce, we reverse the RICO count. We affirm the remaining Counts One through Four, but vacate the sentences with regard to those counts and remand for resentencing. II…

I

OVERVIEW

Juan Paul Robertson (Robertson) appeals his jury convictions for conspiracy and possession of cocaine with intent to distribute (Counts One through Four) and RICO (Count Six). Because we conclude that the Government failed to prove that the enterprise affected interstate commerce, we reverse the RICO count. We affirm the remaining Counts One through Four, but vacate the sentences with regard to those counts and remand for resentencing.

II

FACTS AND PROCEDURAL HISTORY

After working for several years as a lawyer for the Government, Robertson opened a private law practice in Los Angeles emphasizing criminal defense work for drug traffickers. In November, 1983, Julio Silva-Lopera (Silva) retained Robertson to defend him on a federal cocaine charge. Silva told Robertson that he had two kilos of cocaine and $980,000 concealed in the trunk of his Cadillac parked near his Reseda home. Silva asked Robertson to contact his "wife and have the Cadillac placed in storage so that he could dispose of the contents when he was released from jail.

About one week later, Robertson showed up at his estranged wife’s house in Phoenix driving the Cadillac. His then wife, Eddra McCarthy,…

concurring specially:

I fully concur in Judge T.G. Nelson’s opinion for the court. I write separately, however, in order to express my concern over two aspects of the prosecution’s conduct: first, overcharging, second, the improper introduction into evidence of unrelated bad acts. These practices unfortunately appear all too frequently in prosecutions these days.

The defendant in this case was deeply involved in the illegal drug trade. He also owned an unprofitable but legal gold mine. Rather than simply prosecuting the defendant on the basis of the overwhelming evidence of his illicit drug activity, the prosecutors — perhaps because of RICO’s severe imprisonment and forfeiture provisions, 1 per *876 haps because the use of that statute permits the prosecution to introduce evidence of criminal acts that would otherwise be barred 2 — decided to turn the defendant’s ownership of a gold mine into the centerpiece of his prosecution. Notwithstanding the gold mine’s tenuous nexus with interstate commerce, Robertson was charged with investing income derived from a pattern of racketeering activity in an “enterprise ... engaged in, or the activities of which affect interstate or foreign…