United States v. Gary Conti
2015 U.S. App. LEXIS 18264
| 9th Cir. | 2015Background
- Gary Conti was convicted (after two trials) on 27 counts related to stealing federal grant funds through the Po’Ka Project that were intended for Blackfeet youth mental-health and substance-abuse services.
- Count 1 charged conspiracy to defraud the United States under the “defraud” clause of 18 U.S.C. § 371, which requires proof of agreement to obstruct a government function by deceitful or dishonest means, plus an overt act.
- At trial the district court instructed the jury only on the alternate “offense” clause of § 371 (model instruction 8.20), omitting the essential element that the conspiracy used “deceitful or dishonest means” (model instruction 8.21 covers that element).
- Conti did not object to the jury instruction at trial; on appeal he argued the omission allowed conviction without the required element and therefore was error.
- The government introduced emails and testimony showing Conti drafted or suggested fabricated invoices, retroactive in-kind contributions, and knew invoices were false; Conti presented contrary testimony denying intent or participation in some fabrications.
- The Ninth Circuit considered whether the instruction error was plain error under Rule 52(b) and whether the omitted element was proven beyond a reasonable doubt such that the error was harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether omission of the “deceitful or dishonest means” element from jury instructions for a § 371 "defraud" indictment was reversible error | U.S.: Even if omitted, evidence overwhelmingly proved deceit so any instructional error was harmless (or not plain error) | Conti: Omission let jury convict without finding an essential element; requires reversal | Court: Error was plain and preserved for review but not reversible—under Neder harmless-error/plain-error standards the omitted element was proved by strong evidence, so no prejudice; conviction on Count 1 affirmed |
| Standard for reviewing omitted-element instructional errors after Neder | Neder/Prosecution: Use harmless-error analysis asking whether reasonable doubt that jury would have convicted absent error | Conti: Relied on pre-Neder precedent (Caldwell) treating omitted elements as per se reversible | Held: Follow Neder (harmless-error); overrule Caldwell to extent inconsistent |
| Application of plain-error framework (Fed. R. Crim. P. 52(b)) | Prosecution: Even forfeited errors can be corrected only if they affect substantial rights; here they did not | Conti: Error affected substantial rights because an essential element was not submitted to jury | Held: Error was plain and obvious but did not affect substantial rights given strong and convincing evidence of deceitful/dishonest means |
| Whether the omitted-element error "seriously affects the fairness, integrity, or public reputation of judicial proceedings" | Prosecution: Not met because no prejudice | Conti: Argues integrity harmed by omission of element | Held: Court did not reach this final Olano prong because Conti failed to show an effect on substantial rights |
Key Cases Cited
- Neder v. United States, 527 U.S. 1 (1999) (omitted-element jury-instruction errors are subject to harmless-error review, not structural-error reversal)
- Chapman v. California, 386 U.S. 18 (1967) (harmless-error test: beyond a reasonable doubt that error did not contribute to verdict)
- Olano v. United States, 507 U.S. 725 (1993) (plain-error review framework for forfeited errors)
- Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (panel must follow Supreme Court precedent and may decline circuit precedent clearly irreconcilable with it)
- Caldwell v. United States, 989 F.2d 1056 (9th Cir. 1993) (pre-Neder decision reversing for omission of deceit element; overruled to extent inconsistent with Neder)
- Perez v. United States, 116 F.3d 840 (9th Cir. 1997) (upholding conviction where prosecution presented strong and convincing evidence of omitted element)
- United States v. Smith, 891 F.2d 703 (9th Cir. 1989) (recognizing § 371 has two alternate means: offense clause and defraud clause)