IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 97-50100
[Consolidated Case Nos. 97-50111,
97-50113 & 97-50171]

UNITED STATES OF AMERICA,

Appellee-Plaintiff,

vs.

PATRICK FREGA, et al.

Appellants-Defendants.

_______________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
HONORABLE EDWARD RAFEEDIE, PRESIDING

96-CR-0698 ER
_________________________________________________________

PETITION FOR REHEARING BY PATRICK R. FREGA
AND PETITION FOR REHEARING EN BANC
OR ALTERNATIVE MOTION FOR CERTIFICATION OF
QUESTIONS PRESENTED TO CALIFORNIA SUPREME COURT

(Federal Rules of Appellate Procedure 35 & 40)
_________________________________________________________

Henry H. Rossbacher, Esq.
Nanci E. Nishimura, Esq.
My T. Huynh, Esq.
ROSSBACHER & ASSOCIATES
Citibank Center
444 South Flower Street, Suite 2100
Los Angeles, California 90071
(213) 895-6500

Attorneys for Appellant PATRICK FREGA

APPROPRIATENESS OF REHEARING EN BANC

Pursuant to Rule 35(a) of the Federal Rules of Appellate Procedure and Ninth Circuit Rule 35-1, petitioner Patrick R. Frega ("Frega"), defendant/appellant below, respectfully requests that this matter be reheard or reheard en banc on the grounds that:

1. The Panel's opinion upholding the substantive RICO conviction under 18 U.S.C. § 1962(c) (Count 20) was based on a misapprehension and misapplication of the requirements of California Penal Code section 92 which prohibits direct bribes offered or given "to any judicial officer," not gifts to third parties as occurred here. The District Court amended the statute, giving an instruction allowing conviction solely upon proof of delivery of a bribe "to someone else for that person" and refused an instruction requiring proof that the bribed judge even have knowledge of the third-party gift. A revised decision is necessary to harmonize the California State statutes and the California Code of Judicial Ethics Canons which exhaustively regulate bribery, gratuities and judicial conduct;

2. The Panel's opinion upholding petitioner's conviction for mail fraud, 18 U.S.C. §§ 1341 & 1346 (Counts 2-7, 9, 11, 14-18), raises another question of exceptional importance insofar as it erroneously approves the District Court's refusal to give a same single scheme jury instruction in direct conflict with the requirements of numerous decisions of this Court which require the instruction where there is a potential for a variance between a charged single scheme and proof of several schemes. See U.S. v. Mastelotto, 717 F.2d 1238, 1246-47 (9th Cir. 1983); U.S. v. Gordon, 844 F.2d 1397 (9th Cir. 1988). A revised decision is necessary to maintain uniformity of the decisions of this Court and to comply with the Constitutional requirement of unanimity. Richardson v. U.S., 119 S.Ct. 1707 (1999); and

3. This case raises determinative issues of California state law in relation to the meaning of section 92 of the California Penal Code for which the decisions of the California appellate courts provide no controlling precedent. This Court should certify to the California Supreme Court pursuant to Rule 29.5 of the California Rules of Court the following questions:

Whether section 92 of the California Penal Code requires proof that a bribe be made to a judge and not to another for him; and

Whether section 92 of the California Penal Code requires proof that the judge know of the gift to another alleged to be a bribe;

if it does not reverse the present interpretation of section 92. This Court also has available the option of staying proceedings on rehearing or rehearing en banc pending completion of the certification of these issues to the California Supreme Court and that Court's proceedings. Nevada Highway Patrol v. State of Nevada, 784 F.2d 1503 (9th Cir. 1992).

TABLE OF CONTENTS

APPROPRIATENESS OF REHEARING EN BANC ii

TABLE OF AUTHORITIES v

I. LAW AND FACTS OVERLOOKED OR MISAPPREHENDED BY THE PANEL 1

II. ARGUMENT 1

A. THE PANEL MISAPPREHENDED CALIFORNIA LAW WHICH DOES NOT CONSIDER GIFTS TO THIRD PARTIES TO BE JUDICIAL BRIBERY 1

1. Introduction 1

2. The Plain Language of Penal Code Section 92 Clearly Excludes Gifts to Third Parties 2

3. The Panel's Interpretation of Section 92 Ignores Relevant California Legislation and Interferes with California's Legislative and Regulatory Scheme 4

B. THE PANEL MISAPPREHENDED NINTH CIRCUIT PRECEDENT IN UPHOLDING THE DISTRICT COURT'S ERRONEOUS REFUSAL TO GIVE A SAME SINGLE SCHEME JURY INSTRUCTION AS TO THE MAIL FRAUD COUNTS 9

1. Introduction 9

2. The Fatal Variance Between the Indictment and the Evidence Presented at Trial and Ninth Circuit Precedent Requiring a Prophylactic Same Single Scheme Jury Instruction Was Ignored 10

3. The Instructions Given Did Not Clarify for the Jury the Requirement to Find a Single Scheme for Conviction 12

C. THE INTERPRETATION OF CALIFORNIA LAW, SECTION 92 OF THE PENAL CODE, SHOULD BE CERTIFIED FOR DETERMINATION BY THE CALIFORNIA SUPREME COURT PURSUANT TO RULE 29.5 OF THE CALIFORNIA RULES OF COURT 14

III. CONCLUSION 15

CERTIFICATE OF COMPLIANCE 16

STATEMENT OF INTERESTED PARTIES 17

TABLE OF AUTHORITIES

FEDERAL CASES

Burks v. U.S.
473 U.S. 1 (1978) 2

Complaint of McLinn
744 F.2d 677 (9th Cir. 1984) 15

Grunewald v. U.S.
353 U.S. 391 (1957) 12

Los Angeles Alliance for Survival
v. City of Los Angeles
157 F.3d 1162 (9th Cir. 1998) 14

Nevada Highway Patrol v. State of Nevada
784 F.2d 1503 (9th Cir. 1992) iii

Richardson v. U.S.
119 S.Ct. 1707 (1999) iii, 13, 14

Thompson v. City of Louisville
362 U.S. 199 (1960) 8

U.S. v. Barona
56 F.3d 1087 (9th Cir. 1995)
cert. denied 516 U.S. 1092 (1996) 2

U.S. v. Brewster
506 F.2d 62 (D.C. Cir. 1974) 6

U.S. v. Camiel
689 F.2d 31 (3d Cir. 1982) 9

U.S. v. Cissell
700 F.2d 338 (6th Cir. 1983) 2

U.S. v. Croft
124 F.3d 1109 (9th Cir. 1997) 14

U.S. v. Eubanks
591 F.2d 513 (9th Cir. 1979) 14

U.S. v. Frega
No. 97-50100
1999 U.S. App. LEXIS 11774
(9th Cir. Jan. 8, 1999) 2, 10, 12

U.S. v. Gordon
844 F.2d 1397 (9th Cir. 1988) ii, 9-11, 14

U.S. v. Licciardi
30 F.3d 1127 (9th Cir. 1994) 12

U.S. v. Malizia
720 F.2d 744 (2d Cir. 1983) 2

U.S. v. Mastelotto
717 F.2d 1238 (9th Cir. 1983)
overruled on other grounds by
U.S. v. Miller, 471 U.S. 130 (1985) ii, 9-11, 14

U.S. v. Miller
471 U.S. 130 (1985) 9

U.S. v. Rone
598 F.2d 564 (9th Cir. 1979)
cert. denied 445 U.S. 946 (1980) 3

U.S. v. Sun Diamond Growers
of California
119 S.Ct. 1402 (1999) 5

Vachon v. New Hampshire
414 U.S. 478 (1974) 8

Vu v. Prudential Property & Casualty Ins. Co.
172 F.3d 725 (9th Cir. 1999) 14

Yates v. U.S.
354 U.S. 298 (1957)
overruled on other grounds by
Burks v. U.S., 473 U.S. 1 (1978) 2

STATE CASES

Hsu v. Abbara
891 P.2d 804 (Cal. 1995) 5

People v. Diedrich
643 P.2d 971 (Cal. 1982) 3

People v. Drake
566 P.2d 622 (Cal. 1977) 4, 5

People v. Markham
30 P. 620 (Cal. 1883) 3

People v. McCaskey
216 Cal.Rptr. 54, (Cal. Ct. App. 1985) 3, 5

Traverso v. People
864 P.2d 488 (Cal. 1993) 4

Willens v. Superior Court
96 Cal.Rptr. 922 (Cal. Ct. App. 1971) 3, 7

FEDERAL STATUTES

United States Code
Title 18, § 201 5
Title 18, § 1341 ii
Title 18, § 1346 ii
Title 18, § 1962 ii, 2

STATE STATUTES

California Code of Civil Procedure
§ 170 7

California Penal Code
§ 67 4
§ 68 3, 4
§ 85 4, 5, 7
§ 86 4
§ 92 ii, iii, 1-5, 7, 8, 14, 15
§ 93 3, 4, 7
§ 94 4
§ 137 4
§ 138 4
§ 165 3, 4
§ 641 4

CONSTITUTIONS

United States Constitution
Article III, § 2 11

II. LAW AND FACTS OVERLOOKED OR MISAPPREHENDED BY THE PANEL

Petitioner Frega respectfully requests Rehearing or Rehearing en Banc due to the following facts and law overlooked or misapprehended by the Panel:

A. THE PANEL MISAPPREHENDED CALIFORNIA LAW WHICH DOES NOT CONSIDER GIFTS TO THIRD PARTIES TO BE JUDICIAL BRIBERY.

B. THE PANEL MISAPPREHENDED NINTH CIRCUIT PRECEDENT IN UPHOLDING THE DISTRICT COURT'S ERRONEOUS REFUSAL TO GIVE A SAME SINGLE SCHEME JURY INSTRUCTION AS TO THE MAIL FRAUD COUNTS.

III.  ARGUMENT

A. THE PANEL MISAPPREHENDED CALIFORNIA LAW WHICH DOES NOT CONSIDER GIFTS TO THIRD PARTIES TO BE JUDICIAL BRIBERY

1. Introduction

The Government based its RICO charges, in part, on gifts by petitioner Frega to members of the judges' families without offering proof that the judges involved either received the gifts or even knew they had been given. The Government claimed these were violations of California Penal Code section 92 which prohibits only bribes given or offered "to any judicial officer." The District Court, over objection, instructed the jury incorrectly that "to constitute the giving of a bribe it is necessary that the bribe actually be delivered either directly to the person being bribed or to someone else for that person." (RT 4315) The Panel approved this interpretation of section 92. The District Court also refused an instruction requiring proof of a judge's knowledge of the "bribe." (ER 57-59) The Government argued (Gov't Brief 61) and the Panel held that no proof of a judge's knowledge of the "bribe" was required. ⁽¹⁾ Twelve of the charged RICO predicate acts were gifts to family members alleged solely as violations of section 92. Frega Reply Brief, n.3. These interpretations of California law are incorrect and require correction. Since only a general verdict was rendered, the result would be to invalidate the RICO conviction here. ⁽²⁾

2. The Plain Language of Penal Code Section 92 Clearly Excludes Gifts to Third Parties

The opinion ignored the plain language of Penal Code section 92 in upholding the substantive RICO conviction against petitioner Frega under 18 U.S.C. § 1962(c) (Count 20). Section 92 prohibits only those bribes given directly to a judicial officer, not bribes to third parties. ⁽³⁾

In interpreting a statute, the court's primary duty is to find and give effect to the legislative intent or purpose in enacting the statute. U.S. v. Rone, 598 F.2d 564, 569 (9th Cir. 1979), cert. denied, 445 U.S. 946 (1980). The first and often only step necessary to achieve that goal is to analyze the statutory language. As stated in People v. McCaskey, 216 Cal.Rptr. 54, 56 (Cal. Ct. App. 1985):

[T]he court must first look to the language of the statute to ascertain legislative intent, giving effect to the usual, ordinary import of the language. If the language is clear and unambiguous then the court need not engage in further construction; it merely applies the statute as expressed.

Section 92 criminalizes the giving or offering to give a bribe "to any judicial officer": it does not state that it is a crime to give or offer to give a bribe "to any judicial officer or to another person for him," or to "another person on his behalf," or give or offer to give a bribe "directly or indirectly" to any judicial offer. ⁽⁴⁾ The absence of any qualifying language imposes the requirement that the proof show a bribe given or offered to the judicial officer alone.

3. The Panel's Interpretation of Section 92 Ignores Relevant California Legislation and Interferes with California's Legislative and Regulatory Scheme

The opinion ignored the place of section 92 within California's legislation and regulations controlling judicial behavior. Section 92 is merely one strand of an intricate web of regulations, both administrative and statutory, governing the acceptance of gifts by public officials.

The California Legislature enacted section 92 in 1872, the same year it passed section 85, California's legislative bribery statute. ⁽⁵⁾ The language of section 85 demonstrates that the Legislature knew how to prohibit third-party bribes:

Every person who gives or offers to give a bribe to any Member of the Legislature, or to another person for him . . . to influence a member in giving or withholding his vote, or in not attending the house or any committee of which he is a member, is punishable by imprisonment in the state prison. . . .

The markedly different language in section 85 is significant because

it is a well-settled principle of statutory construction that "where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject . . . is significant to show that a different intention existed."

Traverso v. People, 864 P.2d 488, 496 (Cal. 1993) (quoting People v. Drake, 566 P.2d 622, 624 (Cal. 1977). Section 85's provision expressly prohibiting third-party bribes shows that the California Legislature did not intend section 92 to prohibit third party bribes. ⁽⁶⁾

The California Supreme Court has consistently enjoined courts to resolve statutory ambiguities by "examining the context in which the language appears and adopting the construction which best harmonizes the statute . . . with related statutes." Hsu v. Abbara, 891 P.2d 804, 809 (Cal. 1995). A claim that section 92 covers third-party bribes does not "harmonize" sections 85 and 92 and all the other sections criminalizing bribery. See, infra, n.3. Instead, it renders section 85's "or to another person for him" language superfluous. This directly conflicts with the basic principle that "[i]n construing [a] statute, the court must presume each word, phrase, or provision in the statute was intended by the Legislature to have meaning and perform a useful function." McCaskey, 216 Cal.Rptr. at 56.

Recently the United States Supreme Court refused to expansively read the federal illegal gratuity statute, 18 U.S.C. section 201(c)(1)(A), finding that if Congress desired to adopt a broad prophylactic criminal prohibition upon gift giving, it would do so in a more precise and more administrable fashion. U.S. v. Sun Diamond Growers of California, 119 S.Ct. 1402, 1408 (1999). In Sun Diamond, the unanimous Court held that given the plethora of criminal laws and administrative regulations promulgated within each branch of the government to specifically regulate the acceptance of gratuities and their exceptions, a broad interpretation of the illegal gratuity statute would be a snare for the unwary. Id. at 1409. The Supreme Court found the illegal gratuity statute and the numerous other regulations and statutes

littering this field, demonstrate that this is an area where precisely targeted prohibitions have been qualified by numerous exceptions. Given that reality, a statute in this field that can linguistically be interpreted to be either a meat axe or a scalpel should reasonably be taken to be the latter. Absent a text that clearly requires it, we ought not expand this one piece of the regulatory puzzle so dramatically as to make many other pieces misfits.

Id. at 1410. See also U.S. v. Brewster, 506 F.2d 62 (D.C. Cir. 1974).

California also regulates this area through both statutes and administrative rules prohibiting the giving and receiving of bribes. The standards of judicial conduct are promulgated via the Code of Judicial Ethics. The Canons regulate the activities in which a judge may engage; including the accepting of gifts by the judge. The Canons, however, only require that a judge "discourage" gifts to family members. Cal. Code of Judicial Ethics Canon 4(D)(5). ⁽⁷⁾ Moreover, the Advisory Committee Commentary explains: "[a] judge cannot, however, reasonably be expected to know or control all of the financial or business activities of all family members residing in the judge's household." Thus, the Canons specifically regulate the behavior of judges inconsistently with the interpretation of section 92 made by this federal court.

In addition, a provision of the California Code of Civil Procedure section 170.9 specifically addresses the accepting of gifts and its exceptions. Section 170.9 prohibits judges from accepting gifts from any single source with a total value of more than $250 in any calendar year and expressly defines which gifts are not prohibited. With clearly framed and easily administrable provisions such as these regulating gift-receiving specifically based upon the direct participation of the judges, it is erroneous to define a bribe as a gift to a family member of which a judge has no knowledge.

The error here could not be more egregious. The District Court, over petitioner Frega's clear objections, instructed the jury as if section 92 contained the additional prohibition of section 85. The District Court went further, refusing to require proof of any knowledge by the supposedly bribed judge that the gift had been made to the family member. Indeed, the Government argued and the Panel approved this concept: a state statute requiring that a bribe be given "to any judicial officer" may be proven by showing a gift to a family member without the judge's knowledge.

This interpretation ignores the symmetry of sections 92 and 93, enacted together in 1872. Section 93 requires proof of the direct participation of the judicial officer in taking a bribe. Willens v. Superior Court, supra at note 4. Section 92 requires the same proof. The interpretation also ignores the Canons of Judicial Ethics provisions merely discouraging such gifts and then only to members of the family "residing in the judge's household." Gifts to family members residing apart are not even discouraged by the Canons, let alone criminalized by the Penal Code. ⁽⁸⁾

Here, the jury instruction completely eliminates the requirement of proof of the prohibited act itself, namely a direct gift to a judge by the person charged. The District Court eliminated the requirement that there be any proof of knowledge of the gift by the alleged judicial recipient, regardless of the intent of the donor. There is a fundamental failure of proof of the act defined by the statute. ⁽⁹⁾ Similarly, the statute simply does not prohibit gifts to a judge's family members irrespective of the intent with which they are made. The Panel's decision not only rewrites the California Penal Code, it renders moot the California Code of Judicial Ethics. The decision does not "harmonize" either the statutes or the Canons. The federal courts have converted a state scalpel into a meat axe.

The opinion's interpretation of the California judicial bribery statutes and regulations should be reconsidered. Section 92's plain language and the California legislative and regulatory scheme demonstrate the error of the interpretation of California state law in this case.

B. THE PANEL MISAPPREHENDED NINTH CIRCUIT PRECEDENT IN UPHOLDING THE DISTRICT COURT'S ERRONEOUS REFUSAL TO GIVE A SAME SINGLE SCHEME JURY INSTRUCTION AS TO THE MAIL FRAUD COUNTS

1. Introduction

Relying upon U.S. v. Mastelotto, 717 F.2d 1238 (9th Cir. 1983), overruled on other grounds by U.S. v. Miller, 471 U.S. 130 (1985), and pointing to the variances in proof found to require a single conspiracy instruction in U.S. v. Gordon, 844 F.2d 1397 (9th Cir. 1988), petitioner Frega requested that a same single scheme instruction be given. (ER 56, 56a) The District Court refused. (RT 4265-4266) The instruction followed up on a pretrial motion pointing out the potential for multiple schemes to be shown by the evidence (ER 167) as well as an acquittal/new trial motion. (ER 193) The evidence showed, and the jury found, different schemes. ⁽¹⁰⁾ The Government insisted on charging a single scheme involving all the judges and petitioner Frega in both bribery and a unitary coverup. The jury did not convict more than two defendants on any one count - clearly differentiating separate schemes engaged in by different participants either together or alone.

2. The Fatal Variance Between the Indictment and the Evidence Presented at Trial and Ninth Circuit Precedent Requiring a Prophylactic Same Single Scheme Jury Instruction Was Ignored

The Panel's opinion incorrectly held as a matter of law that "bribery and concealing bribery are part and parcel of the same scheme." U.S. v. Frega, supra, at *22. This Court has directly held that the law "cannot imply a subsidiary conspiracy to conceal the crime." Gordon, 844 F.2d at 1401 (overturning convictions based on the trial court's failure to give a same single scheme instruction where a fraud and a conspiracy to conceal the fraud were charged in the same count). An indictment which charges a coverup conspiracy distinct from the primary conspiracy runs the risk of prejudice because it poses the risk of a non-unanimous jury verdict.

The Frega indictment paralleled Gordon, alleging a scheme to defraud through: (1) Frega and Williams giving payments and benefits with the intent to influence California Superior Court Judges in their official capacity and Judges Adams, Malkus and Greer accepting these payments and benefits with the intent to be influenced and rewarded in their official capacity as judges; and (2) Frega, Adams, Malkus, Greer and Williams concealing these payments and benefits from the California Judicial Performance Commission.

The opinion misapprehended the law both when it held that bribery and concealing bribery are inherently part of one scheme and that the trial court need not prevent the risk of a non-unanimous verdict with a proper same single scheme conspiracy instruction. The result is a failure to follow Mastelotto and Gordon.

The Panel misapprehended the law in failing to recognize that Ninth Circuit precedent required the trial court to offer a prophylactic single scheme jury instruction. The fatal variance between pleading and proof and the erroneous jury instruction denied Frega his right to an unanimous jury verdict guaranteed by Art. III, § 2, and the Sixth Amendment of the Constitution, and his Fifth Amendment right to be "held to answer" only for the crime charged by the Grand Jury. Mastelotto, 717 F.2d at 1246-47.

In Mastelotto, the defendants were charged with multiple counts of mail and wire fraud. The schemes to defraud alleged in the indictment included the mislabeling of oil products and the misrepresentation of the financial position and methods of operation of the defendant's company. The schemes were interrelated because the price of the corporate entities was based on the fraudulently mislabeled and overpriced oil.

The Mastelotto court concluded that while a rational juror could have found that the mislabeling and corporate sale transactions were part of two distinct and unrelated schemes to defraud, "a rational juror could also have found that all of the fraudulent activity revealed by the evidence . . . was part of one unitary scheme to defraud alleged in the indictment." Id. at 1247. Accordingly, the court observed that "[i]f the jury were properly instructed, the problem of potential variance could be avoided." Id.

The Mail Fraud charges arose from what the government claimed was a single scheme involving all three judges and Frega. However, the evidence and the verdicts demonstrate that the jury found no mail fraud scheme in which all the defendants participated. A proper same single scheme instruction could reasonably have resulted in an acquittal for petitioner Frega on the Mail Fraud counts challenged on appeal. "Attempts by prosecutors 'to broaden the already pervasive and wide-sweeping nets of conspiracy prosecutions' are viewed 'with disfavor.'" U.S. v. Licciardi, 30 F.3d 1127, 1131 (9th Cir. 1994), citing Grunewald v. U.S., 353 U.S. 391, 404 (1957). A conviction obtained under these circumstances cannot stand.

3. The Instructions Given Did Not Clarify for the Jury the Requirement to Find a Single Scheme for Conviction

The Panel decision relies on the ambiguous instructions given by the District Court. The Panel states:

[T]he court's repeated use of words such as "the" and "a" scheme, rather than "some" or "any," coupled with the direction that the verdict has to be unanimous, sufficiently informed the jury of the need to find a single scheme.

Frega, 1999 U.S. App. LEXIS at *22. Yet the Panel found that the jury "could have misunderstood the instructions" relating to the persons liable under the mail fraud counts. Id. at *21. The District Court concurred, stating:

The Court now tentatively denies the motion for a new trial or for judgment of acquittal. These are the Court's reasons: The defendants challenge the mail fraud conviction primarily on the ground that the jury verdict as to Counts 2 through 19 indicate an impermissible finding of multiple schemes rather than the single scheme alleged in the indictment. The Court declines to speculate about the meaning of the jury's mail fraud conviction and acquittal. Frankly, the Court believes that the jury misunderstood those instructions.

(RT XXV 12 (emphasis added))

Given both the Panel's and District Court's statements as to jury confusion and misunderstanding, it seems that there is a real potential the jury could have misunderstood the instructions requiring unanimity. ⁽¹¹⁾ There was a serious probability that based only on the instruction's use of the words "the," "a," "some," and "any" the jury confused the multiple schemes leading to an improper non-unanimous result. Also the District Court gave a unanimity instruction as to the RICO conspiracy; the failure to give a similar instruction as to the mail fraud scheme may have led the jurors to believe they did not have to unanimously find the scheme alleged in the indictment in order to convict any defendant on the individual fraud counts.

The Supreme Court in Richardson v. U.S., 119 S.Ct. 1707, 1711 (1999), reemphasized the unanimity requirement as necessary to prevent jurors from "avoid[ing] discussion of the specific factual details of each violation" and to prevent any "cover-up of wide disagreement among the jurors about just what the defendant did, or did not, do." Mail fraud presents the "potential unfairness" recognized by the Court that the government's presentation of

numerous underlying violations . . . significantly aggravates the risk (present at least to a small degree whenever multiple means are at issue), that jurors, unless required to focus upon specific factual detail, will fail to do so, simply concluding . . . that where there is smoke there must be fire.

Ibid. The failure to require a specific instruction focussing the jury on the requirement that the charged single scheme be found is inconsistent with the Supreme Court's decision in Richardson.

If it is possible under the evidence for the jury to find that multiple conspiracies existed, then the jury "should" be directly instructed on the issue. U.S. v. Eubanks, 591 F.2d 513, 518 (9th Cir. 1979) (granting new trial based on the district court's failure to give instructions on multiple conspiracy issues); see also U.S. v. Croft, 124 F.3d 1109, 1123 (9th Cir. 1997).

The failure to require a same single scheme instruction here flies in the face of the Ninth Circuit's previous decisions. Indeed, it seems that Mastelotto, Gordon and their progeny have been overruled. The Panel's and District Court's recognition of the jury's confusion leads inevitably to the conclusion that the convictions were based on inadequate instructions. These errors violate petitioner Frega's Sixth and Fifth Amendment rights. The issue is sufficiently important to require rehearing or rehearing en banc.

C. THE INTERPRETATION OF CALIFORNIA LAW, SECTION 92 OF THE PENAL CODE, SHOULD BE CERTIFIED FOR DETERMINATION BY THE CALIFORNIA SUPREME COURT PURSUANT TO RULE 29.5 OF THE CALIFORNIA RULES OF COURT

Petitioner requests that pursuant to Rule 29.5 of the California Rules of Court, this Court exercise its discretion to certify the issues presented as to section 92 to the California Supreme Court if it does not reverse the present interpretation of that section. See Vu v. Prudential Property & Casualty Ins. Co., 172 F.3d 725 (9th Cir. 1999). Grounds exist for certification insofar as resolution of the question presented will have a determinative effect on the appeal and there is no controlling precedent of state decisional law. See Los Angeles Alliance for Survival v. City of Los Angeles, 157 F.3d 1162, 1163 (9th Cir. 1998); Complaint of McLinn, 744 F.2d 677, 681 (9th Cir. 1984). As set forth in the petition, particularly compelling reasons exist for rehearing or, alternatively, for certification, of questions as to the interpretation of California Penal Code section 92 in light of the legislative history and the California statutory and regulatory scheme. This Court may stay rehearing or rehearing en banc pending the California Supreme Court's review.

IV. CONCLUSION

For the foregoing reasons, petitioner Patrick R. Frega respectfully requests that the Panel grant rehearing or that this Court accept the matter for rehearing en banc and if the present analysis of section 92 not be reversed that these issues be certified for review by the California Supreme Court.

Dated: July ___, 1999 Respectfully submitted,

_____________________________
Henry H. Rossbacher
Nanci E. Nishimura
My T. Huynh
ROSSBACHER & ASSOCIATES

Attorneys for Appellant PATRICK FREGA

CERTIFICATE OF COMPLIANCE

Pursuant to Ninth Circuit Rule 32(e)(3), the undersigned counsel certify that the Petition For Rehearing and Petition for Rehearing En Banc is proportionally spaced, has a typeface equivalent to 10 points or more (Courier in WordPerfect 5.1) and contains no more than 15 pages.

Dated: July ___, 1999 Respectfully submitted,

________________________________________
Henry H. Rossbacher
Nanci E. Nishimura
My T. Huynh
ROSSBACHER & ASSOCIATES

Attorneys for Appellant PATRICK FREGA

STATEMENT OF INTERESTED PARTIES

The undersigned counsel hereby certifies that, to the best of his knowledge, the parties known to be interested in this matter are limited to petitioner and his counsel and the other defendant/appellants and their counsel on the service list herein.

Dated: July ___, 1999 Respectfully submitted,

________________________________________
Henry H. Rossbacher
Nanci E. Nishimura
My T. Huynh
ROSSBACHER & ASSOCIATES

Attorneys for Appellant PATRICK FREGA

PROOF OF SERVICE

(1013a, 2015.5 C.C.P.)

STATE OF CALIFORNIA    )

) ss.

COUNTY OF LOS ANGELES )

I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is Union Bank Plaza, 24th Floor, 445 South Figueroa Street, Los Angeles, California 90071.

On September 3, 1999, I served the foregoing document described as PETITION FOR REHEARING BY PATRICK R. FREGA AND PETITION FOR REHEARING EN BANC OR ALTERNATIVE MOTION FOR CERTIFICATION OF QUESTIONS PRESENTED TO CALIFORNIA SUPREME COURT on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows:

I caused such envelope with postage thereon fully prepaid to be placed in the United States mail at Los Angeles, California. I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.

I declare under penalty of perjury under the laws of the State of California and the United States of America that the above is true and correct and that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on September 3, 1999, at Los Angeles, California.

______________________________
NANCY R. OBERLIN