UNITED STATES of America, Plaintiff-Appellee, v. Gary Joseph CONTI, Defendant-Appellant.
No. 14-30232.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Aug. 31, 2015. Filed Oct. 21, 2015.
804 F.3d 977
Before: ALFRED T. GOODWIN, RONALD M. GOULD, and SANDRA S. IKUTA, Circuit Judges.
For the reasons above, I believe the seizure of the small baggie of obvious contraband during a constitutionally permissible strip search of a criminal detainee was reasonable under the totality of the circumstances. In concluding, however, it is worth passing upon the “alternative methods”13 of recovering the contraband alluded to by the majority. See Maj. Op. at 959-60, 964-65, 965-66. The majority mentions these alternatives only with respect to its conception of a reasonable method of seizure. This may be because pleasant alternatives are less obvious under these circumstances.
I suppose the officers could have placed Fowlkes in an isolation cell, handcuffed, partially clothed, and under constant surveillance, allowing them to respond immediately when the baggie worked its way the other inch or so out of Fowlkes’ body. This hardly seems to be, per se, a less intrusive or offensive condition in which to place a detainee. See, e.g., Montoya de Hernandez, 473 U.S. at 548, 105 S.Ct. 3304 (Brennan, J., dissenting) (noting individual was able to avoid passing naturally any of the 88 drug-filled balloons secreted in her alimentary canal for almost 27 hours after initial detention despite her obvious need to use the restroom).
With respect to removal, certainly a medical professional is always preferable, but it remains a mystery whether one was readily available to assist the officers in removing the baggie and what he or she would have done differently. Without such information and based on the totality of the circumstances, the lack of medical personnel did not render the seizure unreasonable. See Florence, 132 S.Ct. at 1513-14 (“In addressing this type of constitutional claim courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of jail security.“); Bull, 595 F.3d at 976 (“When the allocation of resources and the ability of administrators to protect staff and detainees at the facility are at issue, ‘courts should be particularly deferential to the informed discretion of corrections officials.‘“) (quoting Turner v. Safley, 482 U.S. 78, 90, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)). In sum, the factual record needed to find a Fourth Amendment violation warranting suppression is lacking.
Accordingly, I respectfully dissent.
Larry Jent, Williams & Jent, LLP, Bozeman, MT, for Defendant-Appellant.
Michael W. Cotter, United States Attorney, Carl E. Rostad (argued) and Bryan T. Dake, Assistant United States Attorneys, United States Attorney‘s Office, Great Falls, MT, for Plaintiff-Appellee.
GOULD, Circuit Judge:
Gary Conti appeals his jury convictions and sentence for bankruptcy fraud (
Conti‘s conviction on Count 1 rested on a charge for which the jury instructions did not match the indictment. The sole question we consider here is whether an error in jury instructions here amounted to “plain error” under
One of Conti‘s twenty-seven convictions was for conspiracy to defraud the United States under the general conspiracy statute,
Here the “defraud” clause was the basis of the Count 1 indictment, but the district court instructed the jury only on the “offense” clause. Jury instructions Nos. 4 and 5, which were used at trial, parallel Ninth Circuit model instruction 8.20 under the “offense” clause. They omit the “defraud” language from a reprinting of
In Caldwell, the jury found a defendant bookkeeper guilty of conspiring to defraud the United States, but the district court did not instruct the jury on the essential element of “deceitful or dishonest means.” Caldwell, 989 F.2d at 1060. Instead, the instructions allowed the jury to convict if it found a plan to “obstruct” or “impede” the IRS, even if the defendant did not do so dishonestly. Id. The Ninth Circuit reversed the conviction, holding that failure to instruct the jury on an essential element of a crime is constitutional error because it permits a conviction without finding the defendant guilty of that element. Id. And because the Sixth Amendment requires the jury to find all elements of the crime, the court in Caldwell concluded that the error in the instructions was not harmless. Id. at 1061.
To the extent Caldwell held that the failure to instruct the jury on an essential element of the crime is per se prejudicial, it is inconsistent with the subsequent Supreme Court decision in Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), which does not permit a jury instruction error to be considered a structural error. Therefore, Caldwell is overruled, and we need not follow it, to the extent it held otherwise. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003).2
We follow the Supreme Court‘s guidance in Neder. There, the Supreme Court held that a similar error in jury instructions, failure to submit the element of materiality to the jury in a fraud prosecution, does not amount to a “structural” error warranting automatic reversal, but instead is subject to harmless error analysis.3 An error is harmless if it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Neder rejected the defendant‘s argument that “a finding of harmless error may be made only upon a determination that the jury rested its verdict on evidence that its instructions allowed it to consider,” and because the jury
Because Conti did not object to the missing element in the jury instruction, we review his claim not just for harmless error, but for plain error.
We apply these standards to determine whether the conviction on Count 1 is a plain error. First, there is an error because although Conti did not object to the invalid jury instructions at trial, he has not intentionally relinquished or abandoned his ability to challenge them on appeal. See Olano, 507 U.S. at 733-34, 113 S.Ct. 1770. Second, the error was plain or obvious because the jury instructions clearly do not match the indictment.
We next address whether the error affected “substantial rights.” We have held that an omission of an element from a jury instruction that is harmless, under the standard set forth in Neder, does not affect a defendant‘s substantial rights for purposes of plain error review. United States v. Tuyet Thi-Bach Nguyen, 565 F.3d 668, 677 (9th Cir.2009). We must “conduct a thorough examination” of all the evidence in the record and ask whether the omitted element was supported by sufficient evidence. Neder, 527 U.S. at 17, 119 S.Ct. 1827. Cases that have upheld convictions rendered on incomplete or erroneous jury instructions have relied on “strong and convincing evidence” that the prosecution has adequately proved the missing element of the crime. United States v. Perez, 116 F.3d 840, 848 (9th Cir.1997); see also United States v. Smith, 282 F.3d 758 (9th Cir.2002) (holding that the omission of an element from jury in
A review of the trial record of evidence regarding the omitted element (that Conti acted with “deceitful or dishonest means” in participating in the scheme to steal millions of grant dollars from the United States) shows that the government presented substantial evidence on this element during the course of the trial. Among other evidence, the government introduced emails showing that other participants in the scheme considered Conti to be someone who would “come up with” in-kind services to meet grant requirements, and could help explain invoices for in-kind services that supposed contributors did not remember contributing. Other emails sent by Conti indicated that he fabricated invoices for in-kind audit documentation, including changing the dates of work done and “adding a few things” to give the documentation “some diversity.” Further, emails showed that Conti suggested ways to retroactively meet the in-kind contribution requirements of a prior year and fabricated the documentation and dollar amounts of the services “contributed.” In one email, Conti asked a supposed contributor of in-kind services to verify the contribution by signing an invoice Conti had prepared, or alternatively to “delete this message” if she was not comfortable with the idea. A witness testified that the invoice sent to the supposed contributor was for fraudulently inflated amounts. Finally, the government adduced testimony that Conti knew the invoices he helped prepare were “false and fraudulent.”
On the other hand, the record shows that Conti contested the omitted element, arguing that the government‘s case rested on circumstantial evidence. Conti‘s counsel asserted at trial that “you can‘t accidentally commit fraud . . . you have to know what you‘re doing. You have to have intent to defraud. That‘s one of the elements. The government‘s own witness agreed that [Conti], in that respect, did not intend to defraud.” Conti‘s counsel also claimed that Conti could not be part of a conspiracy to defraud if his misrepresentations were intended to give money back to the community, and “he doesn‘t know the objective of doing it falsely.”
In support of this defense, Conti elicited testimony that he had not been involved in creating the fabricated invoices. Conti also adduced testimony that he had actually performed the work reflected in his own invoices. Finally, one witness conceded on cross-examination that he did not know whether Conti was aware of certain fraudulent activities.
After carefully considering the extensive trial record, we conclude that on balance, the government presented “strong and convincing evidence” of deceitful and dishonest means, Perez, 116 F.3d at 848, and Conti‘s evidence is not “sufficient to support a contrary finding,” Neder, 527 U.S. at 19, 119 S.Ct. 1827. We hold that the prosecution adequately proved the missing element of the crime, see Perez, 116 F.3d at 848, and that there is not a “reasonable probability” that the error in jury instructions affected the outcome. See Marcus, 560 U.S. at 262, 130 S.Ct. 2159. We con
AFFIRMED.
Jovan‘z SMITH, Petitioner-Appellant, v. Ken CLARK, Warden, Respondent-Appellee.
No. 14-15162.
United States Court of Appeals, Ninth Circuit.
Oct. 22, 2015.
Before: CONSUELO M. CALLAHAN, MILAN D. SMITH, JR., and PAUL J. WATFORD, Circuit Judges.
ORDER
A sua sponte call for a vote on rehearing this case en banc was made by an active judge of this court. The call failed to receive a majority of the votes of the non-recused active judges.
W. FLETCHER, Circuit Judge, dissenting from the denial of rehearing en banc:
In this case, a 16-year-old high school student named Jovan‘z Smith was taken to a police station and subjected to four hours of interrogation in a small, windowless room. Smith was not read his Miranda rights. Four hours later, still without his Miranda warnings, he confessed. The only question before this court is whether Smith was “in custody” under Miranda when he confessed.
The California Court of Appeal concluded that Smith was not “in custody.” It relied exclusively on the “fact” that, in the words of the court, he “was told three times that he was not under arrest and was free to go.” See People v. Smith, No. A125912, 2010 WL 4233298, at *3 (Cal.Ct. App. Oct. 27, 2010) (unpublished). In an unpublished disposition, a three-judge panel of this court denied his petition for a writ of habeas corpus, concluding that the Court of Appeal‘s opinion, while suspect, was neither “contrary to,” nor involved “an unreasonable application of, clearly established Federal law.”
I disagree. Smith was clearly “in custody” under Miranda. The California Court of Appeal‘s conclusion to the contrary rested on a misreading of California v. Beheler