United States v. Conti, No. 14-30232 (9th Cir. 2015)
Annotate this CaseDefendant appealed his convictions and sentence for bankruptcy fraud, conspiracy to defraud the United States, scheme to commit wire fraud against the United States and the Blackfeet Indian Tribe, and conspiracy to submit false claims. Defendant's conviction on Count 1 rested on a charge for which the jury instructions did not match the indictment. At issue is whether an error in jury instructions here amounted to “plain error” under Fed. R. Crim. P. 52(b). The court overruled United States v. Caldwell to the extent that it held that the failure to instruct the jury on an essential element of the crime is per se prejudicial. The court held that Caldwell is inconsistent with the subsequent Supreme Court decision in Neder v. United States, which does not permit a jury instruction error to be considered a structural error. In this case, although defendant did not object to the invalid jury instructions at trial regarding Count 1, he has not intentionally relinquished or abandoned his ability to challenge them on appeal, and such error was plain or obvious because the jury instructions clearly do not match the indictment. However, the court concluded that the prosecution adequately proved the missing element of the crime, and that there is not a “reasonable probability” that the error in jury instructions affected the outcome. Accordingly, the court concluded that there was no plain error affecting defendant's substantial rights. The court affirmed the judgment.
Court Description: Criminal Law. The panel affirmed the district court in a case in which the defendant was convicted of, inter alia, conspiracy to defraud the United States in violation of 18 U.S.C. § 371. The defendant and his co-conspirators, through their affiliation with the federally funded Po’Ka Project, stole or helped steal millions of dollars in grant funding that otherwise could have gone to provide mental health and substance abuse treatment to Blackfeet Indian youth. The count at issue rested on § 371’s “defraud” clause, which includes the element of “deceitful or dishonest means,” but the district court instructed the jury only on § 371’s “offense” clause, which sets forth an alternate means of commission of the offense and does not include the element of deceitful or dishonest means. The panel observed that to the extent United States v. Caldwell, 989 F.2d 1056 (9th Cir. 1993), 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 (1999), which does not permit a jury instruction error to be considered a structural error. The panel concluded that Caldwell is therefore overruled, and need not be followed to the extent it held otherwise. UNITED STATES V. CONTI 3 The panel held that the district court’s instructions, which did not include the element of “deceitful or dishonest” conduct, were erroneous, but that there was no plain error affecting the defendant’s substantial rights under Fed. R. Crim. P. 52(b) because the government presented strong and convincing evidence of deceitful and dishonest means, and the defendant’s evidence is not sufficient to support a contrary finding. The panel resolved other issues in a jointly-filed memorandum disposition.
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