*1 it' was too late to ly defaulted because America, UNITED STATES of the Arizona courts to raise the
return to Plaintiff-Appellee, adopted court claim. The district judge’s conclusion but also dis- magistrate v. merits, in the claim on the posed of alternative, Supreme that a the event RENZI, Richard G. Defendant- de- pending ultimately case then Court — Appellant. — U.S.-, Ryan, as Martinez v. cided (2012)— L.Ed.2d 272 132 S.Ct. America, United States of materially change the law. would Plaintiff-Appellee, did not contest the district Clark v. ruling procedural default in his court’s only Sandlin, review opening brief. “We issues James W. Defendant- argued specifically distinctly Appellant. which are in party’s opening brief.” Greenwood v. 13-10588, Nos. 13-10597. (9th Cir.1994). F.A.A., 28 F.3d Accordingly, we deem Clark’s claim of in United Appeals, States Court of appellate effective assistance of counsel Ninth Circuit. adequate he “d[id] abandoned because ly point in appeal.” raise this Smith v. Argued and Submitted June 2014. Idaho, n. 7 Cir. Filed Oct. 2014. 2004).10 IV. CONCLUSION to, contrary conclude that it was not of,
nor an unreasonable application Strick
land for the state court to determine that provide
Clark’s trial counsel did not inef by failing preserve
fective assistance
explicitly the issue of observation evidence by failing request a reevaluation of competency during trial.
Clark’s We also claim of appel
hold Clark’s ineffective procedurally
late counsel is defaulted. Ac
cordingly, the district court’s order is
AFFIRMED. that, if, if, under state tance at trial in the initial review collateral Martinez established 10. law, proceeding, “claims of ineffective assistance of trial there was no counsel or counsel proceeding counsel must be raised in an initial-review in that ineffective.” 132 proceeding, procedural collateral default S.Ct. It does not excuse Clark’s procedural will not bar a federal habeas court from hear- failure to brief the issue of default ing onappeal. a substantial of ineffective claim aSsis- *5 TALLMAN, C.
Before: RICHARD CALLAHAN, and M. CONSUELO IKUTA, Judges. S. Circuit SANDRA OPINION TALLMAN, Judge: Circuit Kelly B. (argued), Dan Himmelfarb law, but Congressmen may write the Minta, P. Kramer, Lilley, Joseph Stephen Ari- the law. Former they are not above D.C.; LLP, Washington, Mayer Brown Renzi learned Congressman zona Richard Niewoehner, & Johnson Steptoe Chris S. way when he was this lesson the hard LLP, D.C., for Defendant- Washington, by jury charges conspiracy, convicted Richard G. Renzi. Appellant fraud, extortion, money honest-services Sorrels, (argued), Udash- Gary Udashen in- laundering, making false statements to Dallas, TX, Anton, for Defendant- en & racketeering. regulators, surance Sandlin. Appellant James Now Renzi and codefendant James Sandlin O’Neil, Acting Assistant Attor- A. David sentences, as- appeal their convictions Harbach, II, General; Depu- ney David V. serting that the evidence was insufficient Section; Chief, David Integrity ty Public further ar- support the verdict. Renzi Bitkower, Attorney Deputy Assistant M. predicated gues that his convictions were *6 (ar- Oestreicher, General; E. Jr. Stephan constitutional on serial violations his Section, United gued), Attorney, Appellate Congres- rights, including violations his Justice, Criminal Department of States privilege. Speech sional or Debate Clause D.C.; Division, Leo- Washington, John S. affirm reject arguments their and both nardo, Attorney; Gary Res- United States convictions and sentences. taino, Attorney, States Assistant United Arizona, Plaintiff-Appellee District of for I America. United States brought States insurance (argued), Kircher General The United Kerry W. Pittard, Renzi, Counsel; charges against public corrup- fraud Deputy General William Sandlin, Tatelman, against Counsel; Mary charges B. Beth tion Renzi and Todd Roumel, Walker, racketeering charge against B. and a Renzi. Eleni M. and Isaac Renzi, Counsel, evidence showed that who Office of The Rosenberg, Assistant Counsel, operated agency, and an insurance House of owned General United States D.C., premi- clients’ insurance Washington, misappropriated for Representatives, congressional campaign, his Legal Advisory ums to fund Bipartisan Amicus Curiae regulators to insurance and clients Rep- House of and lied Group of the United States public corruption tracks.1 The to cover his resentatives. sufficiency support challenge of the evidence to their 1. Because Renzi and Sandlin taking and to the broker. After their commis- based on Renzi Sandlin’s charges were (either sion, the conspiracy pri- in a to extort broker North Island or involvement Jimcor) pre- land owned remitted the remainder of the purchase vate businesses Safeco, promise to mium to the insurer —either Unit- exchange for Renzi’s Sandlin exchange Liability, Royal Surplus. ed federal land States support favorable Finally, the evidence estab- legislation. 10, 2001, publicly On December Renzi used his insurance busi- lished that Renzi candidacy for a announced his seat pattern to conduct a enterprise as an ness of Representatives United States House activity by diverting racketeering serving Congressional Arizona’s First Dis- person- for his premiums insurance clients’ very day, began trict. The next use, land facilitating al an extortionate diverting cash from R & C to fund his transfer, laundering proceeds. and its congressional campaign. Between Decem- ber 2001 and March Renzi trans- A $400,000 ferred over from R & C to 2000s, early In the Renzi owned Congress” “Rick for account. To (R C),2 an Company Renzi & & operated campaign regulations, avoid disclosure agency specializing obtaining insurance money Renzi claimed the as a personal non-profit organiza- coverage insurance for campaign. loan to the Renzi But most of R & pregnancy tions and crisis centers.3 directly the diverted funds were traceable for group coverage insurance C obtained R & C had collect- premiums to insurance through brokers who worked on its clients ed from clients.4 of insurance carriers. R & C used behalf (1) North R primary April two brokers: North Island Island sent & C $236,655.90 Facilities, an to bind annual which secured insurance cover- invoice coverage for R & C’s clients. R & Company, age through Safeco Insurance Safeco Agency, already pre- which secured in- C had collected the insurance Jimcor it coverage through both United miums from its clients. But had tun- surance Liability" Company premiums congres- Insurance and neled those to Renzi’s States R Surplus Company. campaign. Lines sional Because & C no Royal Insurance R & C collected yearly longer money, its Renzi did not allow premiums had Gamble, Underwriter, and, R keeping percent- Aly clients after a small & C’s Senior later, pay remitted those North Island.5 Two months age profit, premiums convictions, company. provide any docu- the facts we recite are based on Renzi did not *7 By light support this contention. its the trial viewed in the mentation to verdict, the evidence from jury rejected support jury's his defense. verdict. most favorable 307, 319, Virginia, v. 443 U.S. See Jackson trial, nonpayment of 5.At Renzi attributed the (1979). L.Ed.2d 560 S.Ct. premiums coverage dispute to a with Safeco part deny a claim in Over Safeco’s decision to Patriot Insurance 2. R & C became known as pregnancy because the crisis centers offered Agency after 2002. religious counseling. religious coun- Because seling to the mission of the crisis was central pregnancy organizations 3. Crisis centers are centers, pregnancy to educate which was regarding that counsel women alternatives to abortion, about alternatives to women abortion. interpreted position Safeco’s claimed that he trial, deny coverage suggested money he a decision to for all claims 4. At that the congres- brought by pregnancy centers. Based R & C to fund his crisis withdrew from trial, jury repay- did not campaign simply R & C's on the outcome at sional was explanation. alternative prior loan Renzi had made to the believe Renzi's ment of C, response it and no from R & North Island planned R & C that warned
Safeco policies nonpayment. regulators R for in cancel & C’s notified state insurance Vir- passed response with no ginia nonpayment. Another month Florida of R & C’s and from R & C. receiving calls from these began Clients regulators. state insurance sending can- July began
In Safeco R clients. cellation notices to & C’s With November, early In R & C sent another hand, worried cancellation notices clients, signed letter to its Gamble on calling R & field- began clients C. Gamble R President An- behalf of & C’s Interim respond To to client con- ed these calls. again The letter "reas- drew Beardall.7 cerns, Gamble, a letter to Renzi dictated they “properly sured clients that were in- to clients later that month. which she sent lapses coverage.” sured” with “no that, “spiritual The letter stated These statements were also false—at that counseling longer no covered” under was coverage time clients had no insurance at “replaced” R & policy, Safeco’s C had Instead, August all. between and Novem- Compa- Safeco with “the Jimcor Insurance adjusted R ber & C all insurance ny.” promised The letter that clients internally, directly paying claims clients experience lapse coverage.” would “no any outstanding for claims. to each letter a new Attached was certifi- 5, 2002, On November Renzi was elected liability ostensibly cate of insurance Representa- to the States United House Company.” “Jimcor Insurance The certifi- later, A tives. few weeks Renzi received a number, limits, policy policy cate listed a $230,000 gift from his father. That same policy and effective dates. day, paid R & full C amount due to None of this true: was not Jimcor $236,655.90. North Island: receiving After company,6 an insurance new certif- payment, full Safeco decided to retroac- entirely icates were fabricated. Gamble tively all R policies. reinstate of & C’s request, testified that at Renzi’s she in- numbers, policy serted random cut and just begin- But R & C’s troubles were limits, pasted policy Safeco’s and chose ning. early In R & C received a August Safeco’s 2002 cancellation date as Virginia Corporate letter from the State policy. the effective date of the new fake Commission Bureau of Insurance. In the Then, direction, at Renzi’s Gamble sent out letter, the Bureau of Insurance asked R & phony least of these letters and explain why C to it had collected client certificates, only insurance but to clients premiums but failed to remit them to R who had called & C to voice concern. Island, why North it had issued certif- formally showing coverage
North Island continued to icates of insurance de- Jimcor, payment mand R premiums placed through from & C. had been which is In payments October with no in hand not an company. insurance March Agency demnify policy experienced 6. While Jimcor awas broker for some holders who policies, &of R C’s Jimcor was not a broker covered loss. (which particular policies these were bro- *8 Safeco). by Beardall, kered North Island on behalf of Renzi's law school friend and classmate, importantly, although Agency And Jimcor was took over as the Interim President broker, meaning a that it worked on behalf of occupied of R & C while Renzi was with his However, coverage clients to obtain insurance for them congressional campaign. Gamble companies, from insurance it not an in- was testified that Renzi remained in R & involved working day-to-day operations surer on behalf of an insurance even afLer he C's was company provide policies Congress. insurance or in- elected to zi by company. on behalf sold Sandlin his share of the responded Renzi letter in paid part letter attributed Sandlin with an of R & C. Renzi’s $800,000 ongoing coverage note, an payments promissory payable in annu- withheld Safeco, claimed that “a al dispute through September installments 2007 at “mistaken- of the office staff’ had percent member five interest.
ly generating when typed ‘Jimcor’” time, During this Sandlin also a owned The letter characterized certificates. (the tract”) parcel 640-acre “Sandlin in computer slip.” an “inadvertent mistake as Arizona, southeastern near the San Pedro early In R & received another spring, C River and within the watershed of the time, Depart- the Florida letter —this (“the Fort Army’s United States Huachuca why inquiring ment of as to Insurance — Fort”). leasing Sandlin had been the tract by collected R & C had not been premiums farmer, an using alfalfa who was an responded R a remitted to Safeco. & C (1,846 excessive amount of water acre feet Again, R & C signed by letter Beardall. year) in per region facing a that was on a “com- faulty blamed the certificates chronic water shortages. Water conserva- by of the office puter error a member high priority tion was a for Fort Huachuca the Safeco staff.” R & C stated important because the Fort conducted “in force for the policies insurance were training controversy facing and was local trial, any lapses.” At year whole without time, usage. over its water At the same that there was no “inad- Gamble testified being the Fort the Base reviewed slip.” confirmed computer vertent She Realignment and Closure Commission her to that Renzi himself had instructed (“BRACC”) and was under a federal court certificates, the false create the fake insert consumption. order to reduce its water information, the certifi- coverage and send complaining cates to clients. Copper Compa- In the Resolution (“RCC”) ny acquired land and mineral 2003, R surrendered its May In & C deposit located rights large copper penal- avert Virginia insurance license to Superior, plan- near Arizona. RCC was ties. R & C chose hot to renew its Florida ning copper, to extract the but first want- result, Depart- the Florida license. As adjacent par’ an ownership ed to secure no further action ment of Insurance took cel of land owned the United States against R & C. talking with began Forest Service. RCC B Congressman sponsor- James Kolbe about But ing exchange a federal land bill.9 public corruption The counts arose out Messner, Staff, told (cid:127)Kevin Renzi’s Chief friendship long-time of Renzi and Sandlin’s to intro- Renzi that he should be the one 2001 to relationship.8 and business From Messner believed exchange, duce RCC’s in a partners Renzi and Sandlin were exchange help gain could Foun- development company, real estate Inc., during upcoming Renzi’s political support Realty Development, tain based land ex- February campaign. reelection RCC Kingman, Arizona. year, but change proceeded no further that shortly Congress, after his election to Ren- public exchange 9. A federal land is real 8. Sandlin's wife was a close friend with Renzi property school, in which a owner estate transaction high and Sandlin worked on Ren- exchanges privately-owned land for federal campaign. election zi’s require exchanges con- public land. Such gressional approval. *9 un- again Hegner advised Renzi that RCC was agreed to touch base and Renzi RCC agreement to reach an with Sandlin the election. able after insisting upon unrea- because Sandlin day, terms. Later that Sandlin sonable Hegner stating, just a fax “I received reelected to Con- sent By the time Renzi was Congressman call from Renzi’s phone he had secured seat gress early I They impression Resources Commit- office. have the haven’t on the House Natural tee, cooperative concerning for land ex- this water is- responsible which was been approval.10 requiring legislative very coopera- I feel I have been changes sue. January meeting in private cooperate.” At a tive .... I still want to asked Renzi Hegner Bruno RCC executive continued, Negotiations albeit unsuc- purchas- consider which lands RCC should cessfully. Hegner told Renzi that When government ing exchange with continuing to have trouble with he was Renzi “noncha- parcel. the Forest Service Sandlin, responded key with the ulti- tract, lantfly]” mentioned the Sandlin but property, matum: “No Sandlin no bill.” relationship not disclose his he did Hegner immediately understood this to Sandlin, nor did he disclose the fact that sponsor mean that Renzi would not RCC’s $700,000 in principal owed him on Sandlin legislative swap proposal land unless RCC that, $800,000 Hegner note. testified property included the Sandlin in the land not have been inter- although RCC would asked, exchange. Hegner “What if I can’t property ested in the Sandlin absent Ren- get replied, this done?” Renzi “That negotiating suggestion, began zi’s RCC conversation,” topic would be a for another with Sandlin. shock, hung In up. Hegner mailed Hegner again Renzi and met Febru- memorializing himself sealed note ary that in this Hegner testified day, Hegner conversation. That same meeting, Renzi was insistent about the im- that learned Renzi and Sandlin had been portance acquiring the Sandlin RCC joint shareholders in an Arizona business. including it in the land ex- property and result, pursue As a RCC decided not to acquiring change. Renzi stressed the Sandlin tract. property would benefit national jSandlin May Renzi introduced a federal security, decreasing usage water featuring exchange land bill RCC did on the was critical to property Sandlin include the ac- property. Sandlin No sustainability. Fort Huachuca’s Tom tion was ever taken on the bill. Glass, an who attend- RCC consultant also meeting, ed the asked Renzi if he had a relationship Heg- business with Sandlin. visibly ag- ner testified that Renzi became In April Philip Aries of The Aries that, gravated although and insisted he Keene, Group approached Joanne Renzi’s had sold a piece property Sandlin Director, possibility District to discuss years
many ago, “there was no business sponsoring a federal land ex- relationship.” change put bill. Keene Aries contact Sandlin, Ultimately, spoke negotiations RCC’s with with and Aries Sandlin 14 for about phone April Sandlin were not fruitful. In March on the proposed Repre- approve the land ex- 10. Before the United States House of needed to change legislation, proposed with a recommendation sentatives could take a floor vote on legislation, passed the Natural Committee that the bill be into law. Resources *10 Vino, day, minutes. That same Sandlin ex- Renzi an Arizona wine company phone nine calls with Renzi. owned Renzi. Renzi changed deposited then check into a bank account of Patriot Insur- day, proposed to trade The next Aries public ance.11 Renzi’s 2005 financial dis- parcels in Renzi’s district petrified forest report closure statement did not Sandlin’s Florence, for federal land near Arizona. payment. interested in the forest Renzi did not seem early 2005, September that the parcels, emphasized but Sandlin sent a $800,000 letter to stating in Sandlin that the importance tract was of critical resolv- promissory note—for prior sale of ing Fort Huachuca’s water issues. Renzi joint Renzi’s stake in their term, business—was congressional told Aries that each he $532,708.33 payable” “due and for single a land prioritize exchange could recently Sandlin had Kingman sold some pass directly through the Natural Re- property.12 immediately Sandlin took out promised sources Committee. He Aries: a loan from two close friends. He then you piece your “If include the Sandlin in $533,000 wrote a check for to Patriot In- exchange, give you my pass.” I will free surance with the notation: pay- “insurance again, Once Renzi did not mention his ment.” deposited Again, the check. preexisting relationship with Sandlin. report Renzi did not payment this on his During negotiation period, Aries em- 2005 financial disclosure form. phasized to Keene that “going way he was Group Aries closed escrow request Congress- out on a limb at the Sandlin tract on October 2005. Aries Renzi,” “putting man and that he was [his] paid Sandlin million in principal, plus $1.5 complete Congressman faith in Renzi and $153,000 about in interest.13 A federal is [Keene] this the correct decision.” land exchange bill with Aries was never trial, At Aries testified that The Aries introduced. Group “had no interest” in owning the tract, bought
Sandlin
and would not have
In October
Aries received a mes-
promise.
the tract absent Renzi’s
But
sage from a Phoenix New
reporter
Times
weeks,
within a few
Aries and Sandlin had asking about
dealings
Aries’
with Renzi
agreed
reached a deal. Aries
purchase
and Sandlin. Sandlin instructed Aries to
480 acres of
property
Sandlin’s
back,
reporter
deny
$4.5 call the
that “Rick was
million. Aries sent a million
deposit
land,”
pushing
$1
the one
this
and instead
$500,000
two
May
installments on
3 and
state that it
Conservancy
was The Nature
May
May
2005. On
Sandlin immedi-
“pushing
land deal.”14 Sand-
ately
$200,000
wrote a
check
lin
payable
falsely
assured Aries that Renzi did not
11. R & C
Conservancy,
was known as Patriot Insurance
14. In March
The Nature
Agency at this time.
group
strong
an environmental
with a
interest
River,
preserving
the San Pedro
had ex
pressed
purchase
12.
The evidence established that Sandlin had
desire to
the Sandlin
However,
parcels Kingman,
property
usage.
sold
Arizona.
in order to retire its water
promissory
note between
Conservancy
ap
Renzi and Sand-
But after the
conducted an
land,
by any property
lin was not secured
praisal
and did
it was unable to strike a
Sandlin,
repayment
not authorize Renzi to demand full
sought
price "way
deal with
who
September
Later,
before the due date of
2007.
outside of the market values.”
Aries
sought
Conservancy's
testified that he
en
Shortly
closing,
purchase
after the
Aries received an
dorsement of his
of the Sandlin
profit
Conservancy
offer to resell the Sandlin tract
tract
since
was committed to
$700,000.
helping
acquire
rights.
more than
Huachuca
Fort
water
proceeds
closing”
exchange
promise
support
from the
with in
for his
]
“receive [
*11
legislation.
that “Rick
to
Group,
exchange
points
the Aries
and insisted
land
Renzi
in way, shape,
Group paid
was involved in that land
no
the fact that The Aries
Sandlin
price
property,
a fair market
for the
and
or fashion.”
proceeds
repay
Sandlin then used the
to
C
legitimate
According
on
debt.
Renzi,
extortion
and honest-services
investigation,
After an extensive
two
fraud convictions cannot be sustained be-
grand juries returned indictments
federal
parties
equal
cause
in an
val-
engaged
against
superseding
Renzi. The second
exchange.
disagree.
ue
against
indictment
Renzi and his codefen
22,
September
dants was returned on
2009.
in
We review the district court’s
2013, following 24-day jury
In
trial
June
of
terpretation
the statute de novo. Unit
witnesses,
45
was convicted
McFall,
951,
ed States v.
558 F.3d
956
17
public corruption,
of 32 counts of
insur
Cir.2009).
reviewing
sufficiency
In
of
fraud,
racketeering,
ance
and
and Sandlin
evidence,
“whether,
we consider
after
public
was convicted on 13 of 27 counts of
viewing
light
the evidence
most
corruption.15 Granting a substantial down
prosecution, any
favorable
rational
variance,
ward
the district court sentenced
trier of fact could have found the essential
imprisonment.16
Renzi to 36 months of
beyond
elements of the crime
a reasonable
The district court sentenced
to 18
Sandlin
Nevils,
doubt.”
v.
United States
598 F.3d
imprisonment.
juris
months of
We have
(9th Cir.2010)
(quoting
1163-64
Jack
appeals
diction over their
under 28 U.S.C.
307, 319,
Virginia,
son v.
443 U.S.
99 S.Ct.
§ 1291.
(1979)).
2781,
Renzi first extortion and extortion, honest-services fraud convictions. Renzi The Hobbs Act criminalizes contends that the evidence is insufficient to part obtaining defined relevant as “the govern- another, consent, sustain his convictions property of with his prove ment failed to that he or ... right.” Sandlin under color of official 18 1951(b)(2). “something § solicited or received of value” U.S.C. The Act de- Hobbs codefendants, Specifically, Renzi and Sandlin were con 16. Renzi's Beardall 15. conspiracy (R victed on one count of accountant), to commit Dwayne Lequire & C’s were (18 honest-services wire fraud and extortion jury acquitted also indicted. A Beardall of 371), § U.S.C. six counts of honest-services conspiracy and three counts of insurance (18 1346), § wire fraud U.S.C. two separate jury Lequire fraud. A convicted of counts of extortion under color of official conspiracy eight counts of insurance (18 1951), right § U.S.C. one count of con appeal, Lequire's fraud. On we reversed con- (18 spiracy money laundering to commit judgment acquittal victions and entered a 1956(h)), concealing § U.S.C. one count of concluding Lequire after had not violated (18 1956(a)(1)(B)(i)), illegal proceeds § U.S.C. 1033(b). § 18 U.S.C. See United States v. transacting criminally and two counts of (9th Cir.2012) Lequire, 672 F.3d 731 (18 1957). jury § derived funds U.S.C. (concluding that one cannot "embezzle” conspir also convicted Renzi on one count of another). funds that are not held “in trust” for acy to make a false statement to insurance response Lequire, the district court dis- (18 371), regulators § U.S.C. two counts of charges missed insurance-embezzlement making regu false statements to insurance against Renzi. (18 1033(a)(1)), § lators U.S.C. and one count (18 1962(c)). racketeering § U.S.C. gument premised on a “something of value” is fundamental mis “property” fines transferred, exercised, First, or sold. understanding of the Hobbs Act. “it can be Women, Inc., Org. necessary prove is not that the extor v. Nat’l Scheidler 393, 405, himself, directly indirectly, 123 S.Ct. tioner 537 U.S. re McFall, (2003); 558 F.3d at fruits of L.Ed.2d ceived the his extortion or today, and still At common law benefit therefrom.” States v. Pa United (9th Cir.2001) (in val example “something naro, prototypical omitted). v. money. See Sekhar Unit ue” has been quotation ternal marks The ex *12 — States, -, 133 S.Ct. ed U.S. complete proceeds tortion was once the (2013) (“Extortion L.Ed.2d 794 McFall, reached See 558 F.3d at Sandlin. value, of obtaining the of items require[s] (recognizing that the official public cash, (citing from the victim.” typically himself or a third in party acting concert cases)). public the official must obtain the property deprived). of which the victim is trial
The evidence at established Second, prior the existence of a debt Ar Aries testified that The following: the between Renzi and Sandlin is immaterial owning in the Group “had no interest” ies. that, together, to the fact Renzi and Sand it because property, purchased but Sandlin money lin property i.e., obtained pass” through a “free the promised —from — they that Group The Aries were not other if the Sand Natural Resources Committee to through wise entitled receive Renzi’s lin included in Aries’ land property was if position. official Even Renzi was owed Immediately after Aries sent exchange. Sandlin, way in money from he was no wrote deposit, a million Sandlin
Sandlin $1
money
Vino, entitled to obtain that
from The
$200,000
to Renzi
Renzi a
check
Group using
Aries
the threat of withhold
a Patriot Insur
deposited
which Renzi
into
ing
public
action on a
bill. Under Renzi’s
required pub
ance bank account. Renzi’s
statute, an official
reading
narrow
of the
reported
never
this
lic financial disclosures
from Hobbs
always
could
insulate himself
is sufficient for a
payment. This evidence
liability by directing the extortion vic
Act
juror to find that Renzi received
rational
party
to
third
who
payments
tim’s
money
Group, through
from The Aries
money.
official
Such an inter
owed the
Sandlin, knowing
payment
plain language pretation defies the
exchange
improper
in
for Renzi’s
made
comport
and fails to
with the stat
statute
leg
promise
pass
exchange
to
federal land
purpose:
guard against
ute’s
misuse
Group’s
favor. See
islation
The Aries
Evans,
gain.
for
States,
255, 268,
public
personal
of
office
Evans v. United
U.S.
260-61, 112
(1992). 504 U.S. at
S.Ct. 1881.
1881,
States v. 807 F.2d Ninth pattern jury Circuit’s Cir.1986). bribery instruction for “recommend[s]” The evidence was sufficient for a “specifically the district court describe jury thing just reasonable to find that Renzi received of value as it is described in 19 a “thing money—in exchange indictment avoid a variance.” 9th value”— joins briefing 17. Sandlin in Renzi’s 19. A this variance occurs when the evidence of- proves materially point. fered at trial facts different For the same reason we find Renzi's alleged those the indictment. See arguments unavailing, we affirm Sandlin's Stoll, United States v. Von convictions on this basis. (9th Cir.1984). requires A variance reversal only prejudices if it substantial defendant's 18. We also affirm Sandlin’s convictions as an Adamson, rights. See United States v. aider and abettor on this count. (9th Cir.2002). F.3d 8.12, (2010). Jury Cir.Crim. Instr. error, Cmt. let plain error, alone in the uncon- However, just .recommendation is jury tested instructions.20 that —a recommendation. Neither pattern jury nor instruction control- Ill ling precedent requires the district court argues the district court value, to identify thing especially erred allowing testimony from his for-
where variance from the indictment is not
Director,
mer District
Keene,
Joanne
at issue.
Speech
violation of his
or Debate Clause
Renzi notes that fatal variance could be privilege. He also asserts that the district
issue,
at
pointing to
Choy,
United States v.
court prevented Renzi from presenting a
(9th Cir.2002).
746
such,
Congressman. As
of a
questioning
told her
that Renzi
testimony
Keene’s
govern-
when
put
wanted to
the Clause is violated
“he
in fall 2005 that
exchange
legislative
Aries’ land
act information
... Mr.
ment reveals
on
brakes
Cunningham
Duke
subject a Mem-
Congressman
jury because this “would
because”
a
corruption.22
public
indicted for
place
had been
a
other
being ‘questioned’
ber
testimony inquired
this
claims that
Renzi
the Senate.” United
than the House or
of the
in violation
acts
legislative
477, 490,
his
Helstoski,
into
442
99
v.
U.S.
States
result,
and,
aas
Clause
or Debate
Speech
(1979).
12
61
S.Ct.
L.Ed.2d
trial.
entitled to new
he is
holding, our sis-
In line with Helstoski’s
Keene’s testi-
determining whether
In
that “a mem-
recognized
circuits have
ter
legisla-
protected
Renzi’s
mony concerned
when he or she
‘questioned’
ber is not
acts,
the contours of
revisit
we must
tive
legis-
of
to offer rebuttal evidence
chooses
I,
In Renzi
or Debate Clause.
Speech
McDade,
v.
28
lative acts.”
States
United
negotiations
Renzi’s
we concluded
(3d Cir.1994);
also
294-95
see
F.3d
pro-
not constitute
private parties did
with
F.2d
942
Myers,
v.
635
United States
v.
acts.” United States
“legislative
tected
Cir.1980).
(2d
makes
rationale
sense:
The
I],
F.3d
[Renzi
protec-
claim the
Congressman
cannot
Cir.2011).
promises
clear that
We made
himself
privilege
when he
in-
tions
legislation
future
or actions associated
However,
violative evidence.
troduces the
(“Com-
Id.
Clause.
not covered
are
recognized that this is a double-
McDade
[by
protected
are
‘legislative acts’
pleted
Although
Congressman
edged sword.
future acts are
Clause];
of
promises
legisla-
own
may introduce
his
evidence
whether,
not.”). Here,
when
we consider
acts,
subjects
thereby
himself
tive
“he
evidence
himself introduced
points.
those
cross-examination”
through the cross-ex-
acts
legislative
own
McDade,
295; see also United
28 F.3d at
witnesses,
government
amination
Rostenkowski,
F.3d
v.
States
entitled to rebut that
government was then
(D.C.Cir.1995).
evidence.
McDade,
Congress
a member
pro
Debate Clause
Speech
*15
his indictment on
sought dismissal of
the
that,
or Debate in
any Speech
“for
vides
“force
grounds that the indictment would
House,
Congress]
of
either
member
[a
legislative
evidence of
him to introduce
other
questioned
not
shall
be
charges against
the
acts in order to refute
Constitution,
I, §
cl.
Art.
Place.” U.S.
McDade,
at 294. The
added).
him.”
court
plain
its
from
(emphasis
Evident
to McDade’s con-
sympathetic
improper
on the
language,
the focus is
Yes,
good
A:
Ido.
something
be
for our
that would
Q:
congressional
that conversation.
district.
Tell us about
during that
A: It was a
time
conversation
exchange
follows:
22. The full
was as
believe,
Cunningham, I
was indicted
Mr.
Q:
Keene,
you
who Duke
know
Ms.
do
sitting
corruption
public
as a
member
for
Cunningham is?
Rénzi,
Congress,
I am not
Mr.
sure
and
A: Yes.
me,
was,
patched
he was
where he
but
Q:
Cunningham?
Duke
Who is
phone.
he said at
And
we talked on the
Cunningham was a
A: Mr. Duke
former
put
time that wanted
brakes
he
Congress.
member of
Aries’
exchange, on Mr.
land
this land
Q:
on
you
with
Do
a conversation
Mr.
recall
happening
exchange
what was
Mr. Cun-
in the fall of 2005 where
with Duke.
ningham's name was mentioned?
times,
recog-
cerns. There are
the court
limited rebuttal evidence at issue here dis-
nized,
Congress may
that a member of
tinct
find
from a waiver of
Speech
or De-
advantageous
privilege
it
to introduce evidence of bate
based on a willingness to
instance,
legislative
testify
his own
acts. For
a grand jury.
before
charged
accepting
member who “is
with
Helstoski,
a Congressman charged
exchange
supporting
bribe in
for
certain
conspiracy
legislative
volunteered
act
legislation” may
tactically
“find it
benefi-
evidence to
grand jury
in response to
cial to introduce evidence of his or her
prosecutor’s
questioning
multiple
assertedly legitimate reasons” for ulti-
480-82,
occasions.
Id. at
held even “can be *16 only explicit found after unequivocal renunciation of [Speech the or Debate We first challenged address the Helstoski, protection.” 442 piece testimony Clause] U.S. of concerning sup Renzi’s 490-91, at 99 port S.Ct. 2432. We understand for Group’s legislation. The Aries On Helstoski’s Aries, admonition. But we find the cross-examination of Renzi elicited light holding, 23. In of our it is irrelevant that tion of rebuttal evidence more than a legislative testimony Renzi elicited act from congressman leg- who testifies about his own other testifying witnesses rather than himself islative acts is shielded from cross-examina- at legislative trial. Renzi’s decision to elicit McDade, regarding tion those acts. See 28 testimony party act from a third does not F.3d at 294. government’s shield him from the introduc- who it was Renzi himself Importantly, for Aries’ support” his that had “cooled he to what injected summer of his trial whether and in the into legislation exchange land exchange that Aries’ Aries complained supported the 2006, RCC extent he after moving Now, more to be seeks the Renzi exchange Congress. “seemed within testimo In Keene’s theirs.” quickly Speech than or Debate protections elicited government day, the ny the next was not Clause, claiming government the why Ren as to explanation an alternative testimony and offer Aries’ allowed rebut Keene and had cooled. When zi’s ardor Renzi possible another reason jury the Congressman that aware Renzi became exchange— for the land support cooled his for being prosecuted was Cunningham had indicted Cunningham Duke been that told Keene corruption, Renzi public Taking next. our did not want to be Renzi on” the Aries put the brakes “he wanted McDade, that we conclude guidance from that he had learned exchange because to the limited re- opened the door Renzi for being was indicted Cunningham Duke testimony adduced from Keene buttal testimony directly This corruption. public cross-examining Aries on the same by trial testimony act elic legislative the rebutted prosecution prop- the response, In issue. regarding Renzi’s Renzi himself by ited rebuttal to the one mate- erly confined its support. his backing for off of true reasons that the real reason point rial at issue: of that Renzi’s introduction conclude We ex- support his for the land Renzi cooled gov the the door for opened this evidence com- not because RCC had change was evidence on introduce rebuttal ernment to had Cunningham because plained, but point.24 this light of corruption. for been indicted must, that as we recognize, was foregoing, we conclude Renzi must be or Debate Speech “the Clause “questioned” his impermissibly not about purpose of broadly to effectuate its read Clause. acts in violation of the legislative Legis independence protecting Brewster, United States v.
lative Branch.”
92 S.Ct.
408 U.S.
piece
challenged
second
(1972).
has
But the Clause
L.Ed.2d 507
handling of
testimony
Renzi’s
concerned
statutes we
more than the
“[N]o
its limits.
after Renzi
exchange
land
the RCC
Members
purpose
its
to make
apply, was
purchase
Hegner would
learned that
super-citizens, immune
Congress
During cross-exam-
property.
the Sandlin
responsibility.” Id.
criminal
exchange,”
Copper
opened
for
ed in the Resolution
had not
the door
if Renzi
Even
challenged testimony, we
conclude
of Renzi
would
which was based on her observation
challenges
bill,
he
is
piece
protected
of evidence
that neither
introduced the RCC
before he
statement
protected by the Clause. Keene's
Again,
fading enthusi-
Renzi’s
the Clause.
put
on” the
"wanted to
brakes
Renzi
RCC bill
promise to introduce
asm for
his
exchange
he had learned that
Aries
legislative
protected
act.
in the
is not a
future
Cunningham
being
indicted
Duke
argues
United
that under
Id.
While
corruption was made
public
before
Brewster,
92 S.Ct.
408 U.S.
States v.
promise
good
to introduce
made
(1972), deciding wheth-
33 L.Ed.2d
exchange
tracts
bill that included
federal land
"clearly
part
legislation
is
support
er to
Therefore,
Group.
Aries
owned
suggests that
legislative process,” Brewster
only
"promise to
testimony concerned
Renzi’s
against
legislator’s decision to vote
a.bill
*17
future,”
is not a
perform act in the
which
an
may
protect-
introduced
be
it
been
has
after
489,
Helstoski,
749 ination of Hegner, Renzi that elicited he acts. Renzi now argues that the district had “signed sponsor on to bill” court [RCC] inconsistently applied the Speech or though even the bill no longer included the Debate Clause allowing testify Keene to property. Sandlin Renzi further extensively elicited about her work in Renzi’s of- did, testimony fact, he that introduce fice but prohibiting Messner testify- 2005, May the bill in late although ing the bill about his interactions with Renzi while did not move forward. Renzi’s purpose Messner was serving as Kolbe’s Chief of introducing legislative this act testimony Staff. Renzi argues that the district was to show that he support to continued court’s failure to balance Kolbe’s or Speecji exchange RCC even Hegner after re- Debate privilege against right Renzi’s purchase fused to the Sandlin property. present a defense violated Renzi’s Fifth and Sixth rights. Amendment later, days Two Keene testified. When asked whether she recalled conversa- general As a principle, under tions with Renzi around April 2005 con- the Fifth Amendments, and Sixth a crimi cerning his views about the RCC land nal guaranteed defendant is “a meaningful exchange, Keene stated Renzi that “did opportunity present a complete de not seem very excited and interested in fense.” Stever, United States v. Resolution Copper exchange.” Cir.2010) (internal 755 quotation testimony Keene’s directly responsive was omitted). However, marks while Renzi to Hegner’s testimony that spear- may waive his Speech own or privi Debate headed the introduction of the RCC bill. lege, he cannot waive the privilege of an Because Renzi himself legisla- this elicited other Congressman. See U.S. Football tive act testimony through cross-examina- League v. Nat’l Football League, 842 F.2d tion of Hegner, we conclude that the gov- (2d Cir.1988) (“[T]he 1374-75 testi ernment permitted provide rebuttal monial privilege of Congress members evidence on this narrow point: whether enjoy under Speech or Debate Clause Renzi truly supported RCC’s bill within Constitution, I, 6,§ art. cannot be Congress quid without the pro quo involv- member[.]”). waived another This is so ing acquisition of the property. Sandlin because, “[i]f the Clause applies, applies it Because Renzi was not impermissibly absolutely,” and there is no “balancing of questioned in Clause, violation of the we I, (cit interests.” F.3d find no Speech or Debate Clause viola- ing Fund, Eastland v. U.S. Servicemen’s tion.25 509-10, U.S. 95 S.Ct. L.Ed.2d 324 (recognizing the “abso B lute speech nature of the protec or debate Kevin Messner was Renzi’s Chief of tion”)). We right conclude Renzi’s May Staff from 2003 to November present a defense cannot override the before serving then Congressman Kol Speech or privilege Debate of another be’s Chief of Staff. Congressman Because Congressman. Kolbe invoked legislative privilege, the district court precluded ques Renzi from Messner’s proposed testimony tioning about legislative Messner Kolbe’s concerned conversations between Kolbe argues 25. Sandlin also that the district court’s decide whether Sandlin is entitled to seek improper refuge admission Speech evidence violation privi- under Renzi’s Debate or Speech of Renzi's privilege Debate lege. some- Since Renzi is not entitled to relief implicates Clause, how his convictions. We need not under the neither is Sandlin. *18 According' to strategic value. edge of its Aries regarding proposed the and have Renzi, evidence would the excluded while place took conversations These bill. including the on that his insistence shown office. working Kolbe’s Messner was exchange was in the land property Sandlin directly implicated testimony this Because the Fort protect desire to motivated activities, the district legislative Kolbe’s important its activities. and Messner’s to allow correctly refused court per- court was testimony. The district Informa Under the Classified privilege against Kolbe’s weigh mitted (CIPA), govern Act tion Procedures a defense. right present Renzi’s the court to conduct “may request ment con hearing to make all determinations testimony Moreover, additional relevance, use, admissibility or cerning including Sandlin’s about benefits other information that would of classified have exchange would in a land property trial.” 18 during the wise be made limited rel- and of largely cumulative been 6(a). 3, § The district court U.S.C.App. weeks, Renzi elicited For evance. material in camera the classified reviewed defense witnesses and government request. hearing on the defense and held a in na- a vital role played Huachuca Fort rules “alter the substantive CIPA does not usage the Fort’s water security, that tional evidence, for rele including the test concern, retiring water and was a thus, the district permits it also vance: tract would aid the on Sandlin’s usage cumulative, irrelevant, to exclude court to those stipulated parties Fort. evidence.” United corroborative classified request, the court even At Renzi’s facts.26 Passaro, 207, 220 v. States from Mess- 2005 email April admitted an Cir.2009). disclo If the court authorizes Keene, expressed in which Messner ner to information, gov sure of the classified the land Aries bill because support for the to substitute for such may move ernment Any Fort. greatly help the exchange would admitting “a evidence statement classified would testimony points on these additional facts,” long so as the statement relevant cumulative. largely have been with substan provide “will the defendant properly court that the district We hold ability to make his de tially the same Congressman Kolbe’s to balance declined 6(c)(1). 3, § U.S.CApp. We fense.” 18 Renzi’s privilege against Speech or Debate of clas the district court’s exclusion review a defense.27 right present of discretion. information for abuse sified Miller, F.2d v. United States ,C (9th Cir.1989). he was unable to carefully also maintains reviewed the have defense because this case
present complete classified materials filed with not abuse certain classified the district court did court excluded conclude district Al by excluding them. personal con- its discretion regarding Renzi’s materials may have some though these materials his knowl- to Fort Huachuca and nection watershed,” (4) usage trial, "Retiring water government stipulated that: 26. At pub- property was essential to was thus in "Fort Huachuca’s mission the Sandlin States,” (2) security national of the United Fort Huachuca.” and of value to lic interest indictment, Fort all times relevant to the "At to reduce water us- Huachuca was mandated joins Renzi also 27. To the extent that Sandlin Basin,” (3) "The age Upper San Pedro in the issue, challenge as reject we Sandlin's on this large agricul- Property was the last Sandlin well. around the Fort’s tural water user in the area
751 relevance, they limited are cumulative of its direct examinations of Philip Aries and actually the evidence Renzi at presented Joanne Keene violation of Napue v. Indeed, trial. See Fed.R.Evid. 403. the Illinois, 264, 360 U.S. 79 S.Ct. 3 evidence at provided introduced trial a de- (1959). L.Ed.2d 1217 On direct examina- tailed narrative of how Renzi to learn came tion, Aries testified that he did not know of the Fort’s activities and impor- their about the Sandlin property prior to meet- tance to security. national The defense ing with Renzi on April 2005. On successfully introduced evidence including: cross-examination, the defense confronted (1) the information contained a detailed Aries with phone records, Sandlin’s which presentation PowerPoint regarding the revealed that Aries and Sandlin spo- had Fort’s activities that had been shown to day ken the before for 28 minutes. Aries Renzi at a February briefing in acknowledged that he had “made a mis- (2) Washington, D.C., Matt Walsh’s testi- take day.” one A days later, few Keene mony regarding Renzi’s multi-day visit to testified that Renzi “brought up” the Sand- (3) 2004,28 the Fort in January a copy lin tract to Aries at April the 15 meeting itinerary Renzi’s from that visit. The and that “there was a discussion about also parties entered the stipula- detailed getting [Sandlin’s] contact information” for tion regarding training the programs and Aries. again, Once the defense confronted activities place that take at the Fort. The Keene with phone Sandlin’s records. evidence cumulatively provided Renzi with response, Keene conceded lack her of cer- “substantially the same ability make his tainty, and acknowledged that she was defense” as he would have if had the court “not sure how the contact information was had allowed the introduction of the classi- exchanged.” fied information itself. 18 U.S.C.App. 6(c)(1); § United States Sedaghaty, v. cf. A defendant’s process due (9th Cir.2013) 728 F.3d (noting rights are violated when a conviction is discovery substitution “need not pre- be of obtained through the knowing use of false cise, concrete, equivalence,” long as it so testimony. To establish a Napue violation, placed defendant “as nearly possible, (1) a defendant must show: that the testi position he would be in if the classified (2) mony false, was actually that gov (in- information ... were available him” ernment knew or should have known that omitted)). quotation ternal marks false, it was that the testimony was
Accordingly, we conclude the district material, meaning there is a “reasonable court did not its abuse discretion in exclud- likelihood false testimony could ing the actual classified information. Ren- have affected the judgment of jury.” zi ample introduced similar sup- evidence Houston, United States v. porting theory case, the district (9th Cir.2011). The district court court handled the issue appropriately in found that were, worst, Aries and Keene at statute, conformance with the and there honestly mistaken and did perjure was no constitutional violation. themselves.
IV We consider Renzi’s Napue claim Renzi contends that government novo, de but we review factual determina knowingly elicited false téstimony during underlying tions ruling clear error. government's 28. Over the objection, Walsh Bay Guantanamo and observe in the field even testified that Renzi was invited to visit interrogators trained Fort Huachuca. Inzunza, testimony was inaccurate. their 638 Aries knew See, v. States e.g., United Moreover, Cir.2011). existence of although the 1006, 1020 F.3d possibility records allow for phone failed that Renzi has conclude *20 knew, have or. should prosecutors the Napue of prong third prove to testify might known, and Aries that Keene that likelihood” a “reasonable there is not prose that the no evidence falsely, there is affected statements Keene’s Aries’ or they would. This actually knew cutors Houston, F.3d 648 See jury’s judgment. pres that from distinguishes the situation effectively First, counsel defense at 814. Brown, 980- v. Hayes ent Aries and Keene credibility of attacked Cir.2005) (en banc), where the 81 (finding no rea Id. on cross-examination. deliberately withheld relevant prosecutor testimony af false that sonable likelihood According from his witness. information counsel where jury “[d]efense fected first that Renzi has met the ly, we doubt credibil witness’s] effectively attacked [the not test but do Napue of the prongs two not Second, or Sandlin whether ity”). has not met the the issue as he decide April 14 15 was April or to Aries on spoke prong of the test. third to compared when marginal relevance of (a through pass” “free promises Renzi’s V Committee) at the Resources the Natural Renzi is enti- address whether We next dispute at meeting. primary April judgment acquittal or new tled to a pushed Renzi Sand whether trial was Renzi insurance fraud counts. trial on the Aries, jury why. The on but lin’s tract and conspiring to violate was convicted Renzi, not that reasonably conclude could 1033(a)(1) lying § to violating 18 U.S.C. meeting, tract at the Aries, pushed insurance Virginia regulators. Florida and about the though Aries had heard even prohibits person “engaged The statute Because day prior. tract from Sandlin “knowing- of insurance” the business “material,” we were not the statements deceive, mak[ing] any ly, intent to with the violation occ Napue that no conclude “in material statement” connection false urred.29 any reports financial or with documents regulatory offi- presented any to insurance Renzi question also whether 1033(a)(1)(A). § test. cial.” 18 U.S.C. prongs Napue two met the first presented the evidence honestly mistaken contends or Mere inconsistencies insur- support trial insufficient to do not sat generally recollections witness govern- convictions because ance fraud requirement. See Unit isfy the falsehood that R & C was 667, 678, prove 105 ment failed Bagley, 473 U.S. ed v. States (1985). or in the business of insurance” “engaged L.Ed.2d 481 S.Ct. Virginia and that the letters sent Keene or two provided no evidence that has (A) Likewise, any reports with financial arguments reject connection 29. we Sandlin’s any presented documents insurance on basis. or this agent agency an or regulatory official or or 1033(a)(1) entirety, § 18 U.S.C. its or appointed such official examiner reads: per- the affairs of such agency to examine in- engaged in the business of Whoever is son, (B) influencing purpose of for the and interstate whose activities affect surance agency or official or of such actions knowingly, the intent commerce examiner, agent shall appointed or such an deceive, any state- makes false material (2). paragraph provided in punished as be materially willfully report or or ment land, security— property or overvalues regulators qualify as, Florida insurance is, as “fi- officer, acts or director, an agent, or nancial” documents. argues Renzi also employee business.” Id. 1033(f)(2). that he is § entitled to a new trial because the district court jury misinstructed the The statute is not a model of clarity. meaning of the term “financial reports Nonetheless, we read the statute to re or For the documents.” reasons that fol- quire that, to “engaged be in the business low, we Renzi the deny .relief he seeks. insurance,” R & C must either:
We review the sufficiency of the evi- write risks, insurance or reinsure and meet whether, dence de novo to determine view- the definition of an “insurer” under ing the in the light evidence most favor- 1033(f)(2); (2) § conduct necessary acts *21 able to prosecution, any the rational trier incidental to writing or reinsuring; or of fact could have found the essential ele- conduct activity, as long person as the ments of crime beyond is, reasonable as, acts or is authorized to act on behalf doubt. United States v. Chung, of, 659 F.3d officer, director, an agent, employee or (9th Cir.2011) Jackson, 823 (citing 443 of an insurer. See United Segal, States v. 2781). U.S. at 99 S.Ct. (7th (conclud 495 Cir.2007) F.3d 836 ing defendant, that independent an insur
A broker, ance “engaged was in the business For over of years, ten insurance served as that term broadly is de as C, the owner operator and R fined in the of & an statute to include ‘all acts agency insurance necessary that or marketed and sold incidental to such writing or policies, ”); insurance approved applicants reinsuring’ Inc., for Beamer v. NETCO insurance, (S.D.Ohio 411 insurance, F.Supp.2d 2005) issued certificates of premiums and collected (recognizing on behalf of insur that of “business insur Now, ance carriers. ance” contends that includes “all acts necessary or inci insurance fraud dental to writing conviction such under or re [insuring]”). 1033(a)(1) § cannot stand because R & C We conclude that intro- evidence was “engaged in the business of insur duced at trial sufficient was for a rational ance” as required the statute. We juror to find that R & C “engaged conclude otherwise. A juror rational could the business of insurance” Aly C, have found that R & an agen insurance Gamble, Underwriter, R & C’s Senior tes- cy, was engaged of business insur tified that R & C was to act on authorized ance. of Royal Surplus behalf insurer Lines In-
The statute defines the term “business Company. surance explained Gamble that of insurance” broadly to mean the writing Royal Surplus policy had one R & for C’s of insurance or reinsuring of “by clients, risks an numerous an “aggregate” or “mas- insurer, including all acts necessary or in policy. ter” She testified R that & C cidental to writing such or reinsuring and inquire would to whether its new clients persons as, are, activities of who or qualified act were coverage pol- under officers, directors, agents, employees so, or icy. If R & C would accept funds their insurers or are persons who other author and issue a binding certificate of insurance ized to act on behalf of persons[.]” such immediately. almost After R & C took 1033(f)(1). § 18 U.S.C. An “insurer” is steps, these the new “actually clients had “any entity the activity business of which insurance” and were “bound.” A binder is the writing of insurance or the reinsur gives “an temporary coverage insured risks, ing of person and includes any who while the application for an poli- insurance Indeed, risk. take on policies formal or while being processed is cy insurers, insurers, agents covers statute being prepared.” is policy Law Black's insur- ed.2009). Thus, agents of those who act as Gam and even DiCtionaey 1033(f)(1). § More- Royal 18 U.S.C. testimony established ers. See ble’s contrary is over, insurance definition provide to was bound such narrow Surplus Viewing this which was purpose, client. for the new to the statute’s broad coverage defraud, most favorable crime light in the it a Federal testimony to “make Nevils, at 1163- company.” loot, an insurance plunder prosecution, (State- R & E209-04, conclude juror could E210 Cong. a reasonable Rec. See Royal Surplus on behalf of Rep. Dingell). acted C ment of clients, insuring new binding it agency and If like insurance it looks an in the engaged R & C was therefore probably it’s agency, insurance acts like an Accordingly, insurance.” “business A of insurance. in the business engaged of insurance” giving “business even & found that R juror could have rational have possible, we definition narrow most fraudulent C, so as to issue which went far under the realm R & C falls no doubt that unwitting dupe clients policies insurance the statute. *22 insured, fully was they were believing into that R & C Alternatively, we conclude insurance” as in the “business of engaged to necessary or incidental acts conducted 1033(f)(1). § broadly is defined the term reinsuring of writing of insurance (1) marketed, developed, R & C: risks. B (2) policies, is- Safeco insurance and sold receiving inquiries from Vir After (3) clients, to of insurance certificates sued R regulators, Florida insurance ginia and (4) col- applications, underwrote insurance letters, which in two stated responded & C from clients premiums insurance lected fake “Jimeor” certificates were that Safeco, on to passed premiums those and computer error of an the result accidental claims to Safeco. reported pending and staff, that the office by a member of the inci- “necessary or these actions are All of due premiums to nonpayment R & C writing insurance. dental” to the Safeco, and dispute with that coverage fake far to issue insurance went so as even coverage lapses dur clients suffered no clients, Renzi as listed which certificates contends these ing this time. Renzi Company’s “authorized Insurance Jimeor “financial ... qualify as letters do during period And representative.” meaning of 18 within the documents” by any not covered when clients were time 1033(a)(1)(A). disagree. § We U.S.C. directly after R policy, paid & C clients outstanding any purportedly adjusting phrase not define the The statute does claims. documents,”31 and case law ... “financial only sparse guidance how provides interpret us to Renzi asks
While considering After phrase. this narrowly, interpret we “business of insurance” term terms, we language of the con- contrary plain interpretation is that such an find in- ... document” that a itself, clude “financial which is consider- the definition “manage- relating to the documents issue cludes just than insurers who ably broader WL 02-crl Segal, v. No. United States ambiguous as to whether The statute is 13, 2004) (N.D.Ill. *4 Dec. n. 10 "reports” and both term "financial” modifies ("We 'financial’ deciding the term modi also find that without "documents.” assume documents.”). reports fies both and terms. See "financial” both modifies money.” parently ment of are not collecting adequate infor- Blaox’s Law DICTIONARY ed.2009). mation, This covers more than investigating wrongdoing, or tak- just a balance sheet or an income state- ing legal action against the perpetrators of any ment. It includes document that re- insolvency.”). insurance company. lates to the financial health of a We conclude that the evidence was suffi- The letters R & sent to C insurance cient for a juror reasonable to find that the regulators qualify as “financial ... docu- letters R & C sent to Virginia and Florida they ments” because relate to the “man- regulators insurance were “financial ... agement money” Rand & C’s financial documents.” health. The letters an attempt were
conceal Renzi’s failure to forward insur- C ance premiums to the insurance carriers argues that, objec over his they had been diverted to his con- tion, the district court misinstructed the gressional campaign. The letters were jury by stating that “[t]he terms ‘financial designed also to conceal that Renzi’s in- reports’ or ‘financial documents’ include sureds had no legitimate insurance cover- concerning documents manage age portion for a year after Safeco money ment of potential or the financial issued cancellation notices. These letters health viability of a business or that concealed R & financial problems C’s relate to the position financial of a busin sought to mislead regulators insurance ess.”32 Renzi contends that this “un to whether Renzi should maintain li- bounded” jury definition left the free to censed agent insurance status. conclude that virtually any document satis Moreover, false statements within the that, fied therefore, this element and he is *23 letters (namely, that delay “[t]here was a entitled to a new trial. payment dispute,” due to [a] but “[a]ll District courts have wide dis while, the clients had insurance that in crafting cretion jury instructions. Unit them”) was active and available to had Humphries, ed States v. 728 F.3d important implications. financial Had the (9th Cir.2013). 1032 We review de novo letters composed truthfully, been they jury whether a correctly instruction states would have revealed that Renzi had redi- the law. Berry, United States v. 683 F.3d rected premiums clients’ insurance into his 1015, 1020 Cir.2012). Renzi is entitled congressional campaign, and that clients’ to a new trial if actually the instruction insurance coverage with Safeco had lapsed given misleading was or inadequate to for a few months based on nonpayment. guide the jury’s deliberation. United This attempt to conceal R & C’s financial Garcia-Rivera, States v. 353 F.3d directly issues related to R & “man- C’s (9th Cir.2003). agement money.” of Our decision com- ports purpose 1033(a), § with the of which The district court’s definition of “finan- punish knowing was to falsehoods that ob- cial documents” was a correct statement of struct the investigations regu- of insurance do, fact, the law. Financial documents lators. Cong. See 139 Rec. E209-04 “include” the documents by mentioned (Statement (“States Rep. of Dingell) ap- court. Humphries, 1032. The 2009) ("When 32. The district court’s instruction on the defi- false statements in a document nition reports of "financial potential or documents" are so connected to the financial guided business, reading was viability its of United they surely States v. health and aof Goff, (M.D.Ala. F.Supp.2d 1033(a)[.]”). scope § fall within the of C, $400,000 of R & some of over from explicitly to required was court not district premi- insurance came from client or which included were documents state which to fund ums, personal accounts to Renzi’s Be- scope. the statute’s from excluded campaign. congressional ... documents” term “financial cause the statute, the district in the is undefined evidence was that Renzi contends rely plain on the permitted was court gov- him because insufficient to convict along support- with' language of terms not, not, prove that and could ernment did did Thus, court the district ing case law. “in funds held “misappropriated” that jury instructing not err relies United trust” another. Renzi reports or docu- “financial definition that we held Lequire, v. where States concerning included “documents ments” accountant, was R Dwayne Lequire, & C’s money potential or the management under 18 of “embezzlement” guilty not viability of a business financial health and 1033(b)(1) Patriot Insur- § U.S.C. position financial or that relate “in trust” for the not hold funds ance did business.” insurer, subject to debt- instead but was at 728- relationship. 672 F.3d
or-creditor VI Renzi contends Referencing Lequire, “in funds trust” that R & C did not hold Next, challenges his conviction Island; instead, the funds be- for North racketeering ac- pattern engaging in C, a debtor- subject R longed to & 1962(c) § 18 U.S.C. tivity in violation of argues relationship. Renzi also creditor (“RICO”). predicated on This count was misappro- that “makes clear” Lequire (1) racketeering: acts of alleged three embezzlement, requires priation, like of Insurance Racketeering Act One: “Use “in funds be held trust.” to Fund First Held in Trust Premiums (2) Lequire. holding of Racketeer- Renzi overstates the Campaign;” Congressional dealt with em Lequire specifically Deprive the While Two: “Scheme ing Act 1033(b)(1), § it did not Services, under to bezzlement of Honest United States here, And Ren misappropriation. discuss Constituents;” and Racketeer- Extort misappropriation charged zi was with “Misappropriations ing Act Three: charged or embezzlement. He Company.” Mountain Insurance Spirit *24 Neither mail nor mail and wire fraud. Racketeering Renzi of jury acquitted any express relation requires wire fraud Three, that Renzi committed Act but found trust, the fiduciary or between ship, either in alleged acts many predicate 18 U.S.C. victim and the defendant. See Acts and Two. Racketeering One Instead, §§ the fraud statutes 1343. charged Renzi Racketeering One Act money of a scheme obtain require proof and artifice to executing a “scheme representations. Id. by means of false of interstate through the use defraud” ju a rational dispute not Renzi does § wires, in violation of 18 U.S.C. the evidence adduced ror could have found (wire fraud), the use of inter- through elements. at trial satisfied those of 18 U.S.C. mailings, in state violation held that fraud). repeatedly (mail have describing In the “We § 1341 beyond elements language that describes scheme, that Renzi the indictment stated surplus- statute is required is premium what under insurance “misappropriat[ed] at trial.” See proved not age and need be by & and di- [R C] in trust funds held Burns, 1207, 1216 n. 6 F.3d verged] Bargas v. his own benefit.” those funds Cir.1999). (9th Here, conclude that the we transfer on Renzi’s charge This was based (the phrases “misappro- payment” $200,000 indictment’s use of the “value of the was “in amount priation” surplusage. trust” were of the debt to Renzi that Sandlin (the off), paid rather than only describing Those terms were used zero net value to Renzi). defraud, review a scheme to and were We district court’s the overall meth calculating od of loss under description Sentencing not in the mentioned Guidelines de novo. United predicate govern- acts. Because the States v. Del Toro-Barboza, 1136, 1153-54 673 F.3d required not to show that R & ment was C Cir.2012). We review the district court’s “in “misappropriated” funds held trust” determination of the amount of loss for prove mail or wire another order clear error. Id. fraud, in- language this additional surplusage dictment was and could be dis- Renzi and Sandlin argument base their regarded. Id. on the Application 201.1(b), § Notes to which state that value of “[t]he ‘the benefit also conclude that the district received or to be received’ means the net in constructively court did not amend the 2C1.1, § value of such benefit.” U:S.S.G. by “in omitting dictment trust” lan added). app. (emphasis They n.3 rely also guage jury from the instructions. Because on United States v. Eagle, White where we “in language surplusage, trust” found that the -district court erred in language jury removal of this from the equating the value of a loan modification to instructions was not error. See United payment a cash of the same size. 721 F.3d Garcia-Paz, States v. 1215- (9th Cir.2013). 1108, 1121 In Eagle, White (9th Cir.2002). we concluded that the district court should have considered the “value of the benefit” VII defendant, just received extortion, bribery, and honest- face amount of the transaction. Id. at cases, § services fraud 2C1.1 of the United Sentencing States Guidelines instructs a Renzi and arguments ignore Sandlin’s sentencing court to enhance defendant’s plain language both the of the Guideline offense level “greatest” based itself and the district colloquy. court’s payment, the value of the “[1] [2] the The Guideline instructs the district court benefit received or to be received in return The district court found the ten-level en for the the offense[.]” U.S.S.G. hancement ed to the obtained or to be cial, ceived on the counts of conviction that Renzi re official or is, in exchange [4] payment, the value of the sale of the others the loss to the “applicable acting [3] for the influence exert property.” obtained under with a $200,000 value of government § 2C1.1(b)(2). prong public payment anything public from payment.” According one; offi prong tion methods. And ing prong ue of the *25 Three does not aid the court in interpret- “prong to consider the es “the benefit Renzi was stated that it was two of the Guideline. White proper interpretation one,” payment one, $200,000. Application received,” “the value of the since the Note “greatest” from Aries to Sandlin to basing here, to the which the district court its conclusion on of four calcula- of the jury, only appears $200,000 discuss- the val- phrase Eagle Note in compel contrary does not decision be- Renzi and challenge Sandlin exclusively prong cause it focuses two. the district court’s un calculation of value 201.1(b)(2). § They der argue contend that the Renzi that the “value and Sandlin by concluding district court erred that the payment” prong of the must also be under- 758 Sandlin. juror have voted to convict would principle the net value incorporate to
stood
was not
government
it
treating
importantly,
for
Most
is no basis
“[t]here
since
an
existence of
ex
interpretation
required
prove
to
“any other
differently” and
Ian
prove conspiracy.
results.” But
to
plicit agreement
anomalous
produce
would
States,
scope:
is clear
its
420 U.S.
Note
nelli v. United
Application
(1975).
In
terms,
only to the “benefit
applies
it
43 L.Ed.2d
S.Ct.
its
Thus,
stead,
agreement
we hold that
to
prong.
the existence of an
received”
imposing a ten-
not err in
inferred
court did
an unlawful act can “be
district
commit
201.1(b)(2)
§
to
under
level enhancement
facts and circumstances
from the
Renzi and Sandlin.
n.
both
case.” Id. at 777
S.Ct.
Here,
with
jury
presented
while the
VIII
volunteered informa-
evidence that Sandlin
codefendant,
Sandlin, Renzi’s
James
Renzi, the
relationship
with
tion about
sufficiency of the evidence
challenges the
(1)
that:
Sandlin never
jury also heard
to
conspiracy
support
his convictions
that he owed Renzi
told RCC or Aries
extortion,
fraud,
Act
Hobbs
engage wire
$700,000
personal
on a
note
plus interest
monetary
transactions
engaging
and
repay
his debt to
planned
or that he
Primarily,
criminally derived funds.
with
(2)
proceeds;
with some of the
Renzi
no evidence that he
that there is
he asserts
$200,000
with a
check
repaid
Sandlin
prior
Renzi to conceal their
agreed with
Vino,
though
payable to Renzi
even
made
relationship. Sandlin contends
business
personally;
to Renzi
payable
the debt was
an
shows
he was
that the evidence
(3)
immediately
paid
upon
Sandlin
engaging in financial
innocent businessman
Aries;
money from
receiving the earnest
whether,
review de novo
transactions. We
(4)
seven times on
spoke
Sandlin
to Renzi
light
in the
most
viewing the evidence
(5) Sandlin
day
payment;
of the first
prosecution, any rational
favorable to the
to Renzi with a
repayment
made a second
of fact could have found the essential
trier
$533,000
payable to Patriot
check made
beyond
of the crime
reasonable
elements
with the notation “insurance
Insurance
Nevils,
1163-64;
598 F.3d at
Jack
doubt.
though
pay-
even
the debt was
payment,”
son,
Based on our own de novo criminal.intent. *26 money received that the he jury, it is lin’s defense of the evidence before the view of a Group was the result from The Aries impossible that no reasonable to conclude 759 property innocent sale. legitimate, We While a broker is involved the insur industry, ance conclude that the evidence was sufficient its business does gener ally meet the definition of “business of support Sandlin’s convictions. 1033(f). purposes § insurance” for of general, legal “the distinction an between IX ‘agent’ a ‘broker’ is that an ‘agent’ and. citizenry The Constitution and our en- transacts insurance as the agent of Congressmen power. trust with immense insurer and a ‘broker’ transacts insurance Congressman Former Renzi abused the agent as the the insured with regard to of Nation, so, doing trust of this and for he particular insurance transaction.” 2 Jef by jury peers. was convicted of Af- frey E. Thomas Appleman New on Insur ter careful consideration of the evidence ance Library § Law Edition 1502[1][a] legal affirm arguments, and we the convic- (LexisNexis 2009) (emphasis in original); tions and sentences of both Renzi and his (9th ed.2009) Black’s Law Dictionary 220 partner, Mend and business Sandlin. (“insurance broker” defined as “a person who, for compensation, brings about or
AFFIRMED.
negotiates contracts of insurance
an
as
else,
agent for someone
but not as an
IKUTA,
Judge, specially
Circuit
officer,
employee,
salaried
or
licensed
concurring:
agent of an
company.”).
insurance
“If it
agency
looks like an insurance
sure,
To be
a broker could also
an
be
agency,” Maj.
acts like an insurance
atOp.
agent for an
company.
insurance
Whether
754, might
it
be a brokerage company
an entity is a broker or an
agent
insurance
whose
by
activities are not covered
18
(or both) depends on
particular
“the
facts
§ 1033.
U.S.C.
of the case.” Curran v. Indus. Comm’n of
narrowly.
Section 1033 is drafted
It Ariz.,
434,
523,
Ariz.
156
752 P.2d
526
by
criminalizes conduct
persons who are
(Ariz.Ct.App.1988);
Sparks
see also
v. Re
“engaged in the business of insurance.”
Co.,
public
529,
Nat.
Ins.
132 Ariz.
647
Life
1033(a)(1).
§
18 U.S.C.
The definition of
(1982).
P.2d
1140
Courts apply
is,
face,
“business
insurance”
on its
lim- agency principles of the applicable state to
ited to activities
insurers. The statute
determine whether a broker is also serving
defines the term to mean either “the writ-
agent
as an
an
company.
insurance
See
insurance,”
ing of
reinsuring
or “the
Segal,
United
v.
States
495 F.3d
risks,”
cases, “by
an
both
insurer.” 18 (7th Cir.2007) (rejecting defendants’ claim
1033(f)(1).
§
U.S.C.
It defines “insurer”
they
were brokers and therefore not
“any entity
activity
mean
the business
“engaged in the business of insurance”
writing
of which is the
of insurance or the
1033(b),
§
under
in light of
law that
Illinois
1033(f)(2).
§
reinsuring of risks.” Id.
agent
broker could become an
“business of insurance” includes activities
circumstances)
insured under some factual
by employees
insurer,
agents
of an
(citing Capitol Indem. Corp. v. Stewart
well as activities “incidental to” writing
Intermediaries,
Inc.,
Ill.App.3d
Smith
insurance or reinsuring
may
risks that
be
171 Ill.Dec.
593 N.E.2d undertaken
an
insurer.
Id.
(1992));
Lequire,
see also United States v.
1033(f)(1).
§
Nothing
(9th Cir.2012)
in the
sug-
statute
(looking
gests that someone who is not an insurer Arizona law to determine that an insur
act
authorized to
on an insurer’s behalf
property
ance broker did not hold
in trust
1033).
inis
the “business of
purposes
§
insurance.”
for an insurer
*27
policy
§
here,
under- 1033.
money
liable
see
applicable
law
Arizona
the
Under
“financial docu-
likely
is
a
agent of holder’s letter
id.,
become the
a broker does
receiving an
and
opinion,
insurer
our
“the
ment” under
simply because
an insurer
in-
to” the
policy
business
is “incidental
receiving insurance
insurance
contemplates
Curran,
insuring
P.2d at 527.
of
company’s
surance
business
from brokers.”
an insurance
reinsuring.
become
a broker
and
Nor does
applica-
merely solicits
if the broker
agent
intend-
Congress
There is no indication
“from the
and secures
for the insurer
tions
broadly.
read this
ed the statute
be
which was is-
agent
policy
the
insurer’s
the “includ-
reading
natural
of
The most
Id.
sued.”
1033(f)(1) (em-
§ language
all acts”
ing
not deter-
majority here does
But the
added)
other acts
is that it refers to
phasis
writing
R
is
insurance
whether & C
mine
include activ-
“by
This could
an insurer.”1
risks,
R & is
or whether
C
reinsuring
or
part
as
of an
typically undertaken
ities
under
Royal Surplus
or
agent of Safeco
an
business,
drafting
as
finan-
insurer’s
such
Instead,
agency
of Arizona
law.
principles
communicating
regu-
with
reports
cial
or
expansive
an
read-
majority relies on
the
lators,
such acts are “incidental
impose
§
could
criminal
1033 that
ing of
of
company’s business
to” the insurance
also on
just on an insurer but
liability not
contrast,
By
reinsuring.
and
insuring
insur-
interacts with
any
party
third
who
to cov-
Congress wanted the statute
when
majority focuses on
the
Specifically,
ers.
brokers, it said so
parties
third
such as
er
in-
“business of
language' defining the
directly.
In another subsection
reinsuring
or
risks
writing
surance”
1033(b)(1),
statute,
§
Con-
same
18 U.S.C.
necessary or
“including all acts
an insurer
imposed liability on third
gress expressly
reinsuring.”
writing or
incidental to such
are not insurers.
that sec-
parties who
1033(f)(1).
to the
According
§
18 U.S.C.
tion,
a
provides
person
the statute
action
a
this means that
majority,
of
“engaged in the business
who is either
“necessary or incidental
party that is
third
(other than as an
or “involved
insurance”
part
is
of
to” an insurer’s business
beneficiary
policy
under a
insured or
Maj.
at 754.
Op.
of insurance.”
“business
insurance)
relating to the
in a transaction
help
is to
Because a broker’s business
a business” can
conduct of affairs of such
insurance,
ac-
and such
customers obtain
category
This latter
would
be held liable.
insurance,
writing
are incidental to
tivities
brokers,
expressly
and
excludes
include
majority’s interpretation appears
policy holder.
subject
se
brokerage
per
businesses
make
majority’s
Although
disagree
I
with
regardless
§
liability under
statute,
I
overly
reading of
acting
is
as an
broad
particular
.broker
whether
A
can be-
Indeed,
majori-
agree
the result.
broker
agent of an insurer.
agent
“upon
based
come an insurance
may
policy
make even a
ty’s interpretation
the case” if the insur-
falsely particular facts of
regulator
holder who writes
au-
apparent
“create actual or
stealing
er’s actions
company
an
accuses
insurance
as,
persons who act
or
the activities of
full definition states:
1. The
are, officers, directors,
employees
agents,
or
"business of
insurance”
the term
persons au-
means'—(cid:127)
who are other
of insurers or
insurance,
(A) writing
or
persons.
of such
to act on behalf
thorized
risks,
(B)
reinsuring of
1033(f)(1).
§
18 U.S.C.
insurer,
necessary
including all acts
by an
reinsuring
writing
to such
or incidental
*28
thority for a
government,
broker to act on its behalf.”
juror
reasonable
could con-
Curran,
Here,
bind issue a contract of
insurance, and a person who pow- has the
er “to obligate the insurer upon any risk” Curran, agent
is an of the insurer.
P.2d at 526. Accordingly, viewing the evi- light
dence most favorable to the majority’s 2. The claim that R & C “even went & “producer” C was the which is consistent so far as to issue fake insurance certificates to broker, Curran, being see at P.2d clients, which listed Renzi as Jimcor Insur- 524, 527, signed and Renzi the certificate as ” Company’s representative,’ ance 'authorized C, representative (not the authorized of R & Maj. Op. erroneously confuses a bro- Jimcor) certifying only that if Jimcor canceled ker’s work with an insurer’s work. The fake policy, R & C would not be liable. Liability Certificate of Insurance shows that R