Unpublished Disposition, 899 F.2d 1225 (9th Cir. 1986)

MEMORANDUM^**

Chester Brown was convicted by a jury for conspiracy to obstruct justice and suborn perjury, as well as for obstruction of justice. He contends that the evidence was insufficient to support his convictions and that the district court erred in rejecting his proposed jury instructions related to the word "corruptly."

Brown, a lawyer, represented one of several defendants charged with various offenses in connection with a conspiracy to obstruct justice. On April 11, 1986, he ran a meeting that was taped surreptitiously by a co-operating witness. According to Brown, he attended this meeting, along with his client, and simply offered advice to several other people who had been subpoenaed to appear before the grand jury investigating his client's business activities. Brown argues that the record as a whole and the transcript in particular provide insufficient evidence to support his convictions.

Evidence is sufficient to support a conviction if a court finds, after reviewing the evidence in the light most favorable to the government, that any rational jury could have found the defendant guilty beyond a reasonable doubt of the elements of the offense. Jackson v. Virginia, 443 U.S. 307, 319 (1979). In reviewing the evidence, the court must draw all reasonable inferences from the evidence in favor of the government. United States v. Arriaga-Segura, 743 F.2d 1434, 1435 (9th Cir. 1984).

Here, the transcript of the April meeting is replete with instances from which a rational jury could have concluded that Brown was a member of the conspiracy (Count I) and that he endeavored to influence, obstruct and impede the due administration of justice in connection with a pending grand jury proceeding (Count III). Brown's efforts to quote selectively from the transcript to show that his motive was not improper are to no avail. The transcript reveals instances where he told the witnesses to tell the truth, but then told them what the truth would be; where he said one thing to them, but then denied having said it; where he acted as if he wanted to allay the witnesses' fears, but really fostered them so that they would invoke the Fifth Amendment. In sum, there was sufficient evidence for a rational jury to conclude that Brown had a corrupt purpose: to thwart the administration of justice in order to protect his client from being implicated in the grand jury's investigation.

Brown also contends that the district court should have included, as part of its jury instructions, his request to include two additional meanings of the word "corruptly" to explain its usage in the statute. First, Brown wanted the judge to instruct the jury that "corruptly" also meant "for an evil or wicked purpose." Second, Brown contended that the judge should have instructed the jury that if a lawyer advises a potential witness to invoke the Fifth Amendment and if he gives such advice not only to assist his client but also to help the non-client, then he cannot be said to have acted "corruptly."

We hold that the district court did not abuse its discretion in rejecting Brown's requests. The district court gave a correct definition of "corruptly,"¹  see United States v. Laurins, 857 F.2d 529, 536-37 (9th Cir. 1988) ("defendant must have acted 'corruptly,' i.e., that the act must be done with the purpose of obstructing justice"), cert. denied, 109 S. Ct. 3215 (1989), and need not have added Brown's phrase of "evil and wicked purpose." Similarly, the district court did not abuse its discretion in declining to instruct the jury on dual purposes, a request for which Brown offered no persuasive authority. Even if Brown had both good and bad purposes for inducing witnesses to invoke the Fifth Amendment, his theory " [t]hat this lawfulness wipes out the criminality of the inducer, acting with corrupt motive, [is one with which] we cannot agree." Cole v. United States, 329 F.2d 437, 440 (9th Cir.), cert. denied, 377 U.S. 954 (1964).

Brown also contends that the district court committed plain error by failing to mention the criminal intent required to prove the obstruction of justice offense in its instruction to the jury on the conspiracy charge. To support his contention, Brown relies upon Danielson v. United States, 321 F.2d 441, 445 (9th Cir. 1963), in which this court said in dicta that "it is well settled that at least that degree of criminal intent necessary under the substantive offense must be proved to sustain a conviction of conspiracy to commit that offense."

We reject Brown's argument and his reliance upon Danielson to support it. In Danielson, this court was concerned about a legally erroneous statement of the intent requirement which the court delivered to the jury as part of its instructions on the related conspiracy charge. The jury could have convicted the defendant of conspiracy to commit the underlying offense by finding a lower level of intent than that which was required under the law. Here, where the district court properly instructed the jury on the intent required to convict Brown of the underlying offense, it was not required to reiterate the intent requirement when instructing the jury on the conspiracy charge.

The district court also imposed a special assessment on defendant Brown. Special assessments have been declared unconstitutional in our circuit. United States v. Munoz-Florez, 863 F.2d 654 (9th Cir. 1988). This portion of defendant's sentence is vacated.

In all other respects, the judgment of conviction is AFFIRMED.