United States v. Fries, No. 13-10116 (9th Cir. 2015)
Annotate this CaseAfter a jury trial, Defendant was convicted and sentenced for using a chemical weapon, in violation of 18 U.S.C. 229(a), and making false statements to the FBI. Defendant’s convictions arose from his detonation of chlorine bombs, which required the evacuation of an entire neighborhood. A panel of the Ninth Circuit affirmed, holding (1) prosecution pursuant to section 229 is within the federal government’s prosecutorial authority, and Defendant’s conviction is entirely distinguishable from prosecution of the purely local crime at issue in Bond v. United States; (2) the district court properly rejected Defendant’s requested jury instruction that section 229(c) requires the government to prove that Defendant’s criminal act was against property owned, leased, or used by the United States; (3) the district court did not err in denying Defendant’s motion to suppress evidence seized pursuant to a search warrant; (4) the district court correctly held that statements of Defendant’s co-participant were admissible pursuant to Fe. R. Evid. 801(d)(2)(E) as co-conspirator statements; (5) the district court did not err in rejecting Defendant’s proffered missing evidence instruction; and (6) the district court did not err in applying a two-level obstruction of justice enhancement pursuant to the Sentencing Guidelines.
Court Description: Criminal Law. The panel affirmed the defendant’s convictions and sentence for using a chemical weapon in violation of 18 U.S.C. § 229(a) and making false statements to the FBI in violation of 18 U.S.C. § 1001. The panel held that the prosecution pursuant to § 229, which was enacted as part of the Chemical Weapons Convention Implementation Act of 1998, was within the federal government’s prosecutorial authority, and that Congress has the constitutional authority to proscribe the conduct in which the defendant engaged. The panel wrote that unlike the defendant in Bond v. United States, 134 S. Ct. 2014), the defendant did not engage in purely local criminal activity resulting in minor injury to a single individual; rather, his detonation of chlorine bombs requiring the evacuation of an entire neighborhood had “the potential to cause severe harm to many people.” Interpreting the plain language of the statute, the panel held that the district court properly rejected the defendant’s requested jury instruction that § 229(c) required the government to prove that defendant’s criminal act was against property owned, leased, or used by the United States. The panel explained that the requested instruction was legally untenable because § 229(c) states the jurisdictional elements in the disjunctive. UNITED STATES V. FRIES 3 The panel held that the district court properly denied the defendant’s motion to suppress evidence seized pursuant to a search warrant. The panel wrote that the information supporting probable cause to search was not stale because it was based on the defendant’s continuing pattern of criminal conduct, and that the warrant application sufficiently limited the agents’ discretion in conducting their search of the defendant’s residence, computers, and business records. The panel held that the district court correctly held that the statements of the defendant’s co-participant were admissible pursuant to Fed. R. Evid. 801(d)(2)(E) as co- conspirator statements even though the indictment did not allege a conspiracy count. The panel held that the district court also acted within its discretion in rejecting the defendant’s proffered missing evidence instruction as lacking the requisite legal and factual support. The panel rejected the defendant’s contention that application of a two-level obstruction of justice enhancement pursuant to U.S.S.G. § 3C1.1 constituted impermissible double-counting, where the chemical-weapons count and the false-statement count were properly grouped pursuant to U.S.S.G. § 3D1.2, the enhancement was applied to the defendant’s conviction for use of chemical weapons, and the defendant’s conviction for making a false statement did not fully encompass his obstructive conduct. 4 UNITED STATES V. FRIES
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