Opinion
No. 2:11-cr-00505 KJN
08-30-2012
UNITED STATES OF AMERICA, Plaintiff, v. DUSTIN BOLE, Defendant.
ORDER
On August 22, 2012, defendant Dustin E. Bole ("defendant") filed a Motion for Release Pending Appeal ("Motion"). (Motion, Dkt. No. 75.) The United States filed an opposition brief on August 27, 2012 ("Opposition"). (Opposition, Dkt. No. 80.)
The matter came on for hearing before the undersigned on August 29, 2012. (Minutes, Dkt. No. 82.) Attorney Ann McClintock appeared on behalf of defendant. Attorneys Nicholas Fogg and Christopher Hales appeared on behalf of the United States. For the reasons discussed during the hearing and within this order, defendant's motion is denied.
I. BACKGROUND
In March 2012, defendant was convicted of the crime of "Theft of Government Property" in violation of 18 U.S.C. § 641. (Verdict, Dkt. No. 58.) Defendant was sentenced to eight months in prison. (Dkt. No. 67.) Defendant has appealed the conviction to United States Senior District Judge Karlton. (Notice of Appeal, Dkt. No. 68.)
Defendant now argues that he should be released pending his appeal under Federal Rules of Criminal Procedure 47(c), 58(g)(3), and 18 U.S.C. § 3143(b).
18 U.S.C. § 3143(b) provides: Release or detention pending appeal by the defendant. (1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds--
The jury instruction that was given at the close of defendant's trial, and is at issue in defendant's appeal, reads:
The defendant is charged in Count One of the information with theft of government money in violation of Section 641 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following evidence elements beyond a reasonable doubt: First, the defendant knowingly stole money with the intention of depriving the owner of the use or benefit of the money; second, the money belonged to the United States or any department or agency thereof.(Trial Transcript dated March 14, 2012, Exh. B to Motion at 688.)
Defendant argues that it was plain error not to instruct the jury that theft of government property must be "willful" and it was also plain error not to define "stole" for the jury. (Motion at 8-11.) Defendant did not raise either objection during trial and did not propose either instruction during trial, so review is on the "plain error" standard. (Id.)
"Plain error is error that is clear under the law and that affects substantial rights. [The defendant] has the burden to establish that the error was prejudicial." U.S. v. Campbell, 42 F.3d 1199, 1204 (9th Cir. 1994). "If these elements are established, the court of appeals should correct a plain error affecting substantial rights if it 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' " Id. (citing cases). "In applying the plain error standard we consider all circumstances at trial including the strength of the evidence against the defendant." Id. (citing cases).
II. LEGAL STANDARD
The release or detention of a defendant pending his or her appeal is controlled by 18 U.S.C. § 3143(b) ("Section 3143(b)"). Relevant here, Section 3143(b) provides that a defendant shall be released pending appeal pursuant to 18 U.S.C. § 3142(b) or (c) if the court finds: (1) by clear and convincing evidence that the person is not likely to flee or pose a danger to the community; and (2) that the appeal is not for purposes of delay and (3) raises a substantial question of law or fact likely to result in reversal or a new trial. 18 U.S.C. § 3143(b).
III. DISCUSSION
A. Not Likely To Flee Or Pose A Danger To The Community
Defendant notes that "this court has already found that Bole is not a flight risk and that he does not pose a danger to the community." (Motion at 7 (citing Dkt. No. 55 at 3).) The undersigned finds defendant to be unlikely to flee or to pose a danger to the community.
B. Appeal Not For Purposes Of Delay
Defendant urges that the appeal was not filed for purposes of delay, noting that District Judge Karlton has set a briefing schedule on the appeal that has oral argument set for October 2, 2012, which is after the current self-surrender date. (Motion at 7.) Defendant intends to file his opening appellate brief on or before the deadline of September 10, 2012. (Id.) During the hearing, defendant's counsel also represented that defendant had not been informed about the motion at issue. The undersigned finds that the appeal was not for purposes of delay.
C. Raises A Substantial Question Of Law Or Fact Likely To Result In Reversal
1. Legal Standard Regarding A "Substantial Question"
In U.S. v. Handy, the Ninth Circuit Court of Appeals clarified that, "properly interpreted, 'substantial' defines the level of merit required in the question presented and 'likely to result in reversal or an order for a new trial' defines the type of question that must be presented." U.S. v. Handy, 761 F.2d 1279, 1280-81 (9th Cir. 1985); accord U.S. v. Garcia, 340 F.3d 1013, 1021 (9th Cir. 2003) ("The defendant, in other words, need not, under Handy, present an appeal that will likely be successful, only a non-frivolous issue that, if decided in the defendant's favor, would likely result in reversal or could satisfy one of the other conditions.")
The phrase does not mean that defendant can demonstrate that he will "probably prevail on appeal." Handy, 761 F.2d at 1280-81. "Congress did not intend to limit bail pending appeal to cases in which the defendant can demonstrate at the outset of appellate proceedings that the appeal will probably result in reversal or an order for a new trial. The legislative history states that the purpose of the statute is to require 'an affirmative finding that the chance for reversal is substantial.'" Id. at 1280-81. A showing that the chance of reversal is substantial is, of course, very different from a showing that reversal is more likely than not." Id. "Finally, requiring the defendant to demonstrate to the district court that its ruling is likely to result in reversal is tantamount to requiring the district court to certify that it believes its ruling to be erroneous. Such an interpretation of the Act would make a mockery of the requirement of Fed. R. App. P. 9(b) that the application for bail be made in the first instance in the district court." Id.
"Historically the phrase 'substantial question' has referred to questions that are 'fairly debatable.' Included within this definition have been questions that are novel and not readily answerable." Id. "The question may be 'substantial' even though the judge or justice hearing the application for bail would affirm on the merits of the appeal. The question may be new and novel. It may present unique facts not plainly covered by the controlling precedents. It may involve important questions concerning the scope and meaning of decisions of the Supreme Court. The application of well-settled principles to the facts of the instant case may raise issues that are fairly debatable." Id.
Thus, in the Ninth Circuit, a "substantial question" is one that is "fairly debatable," [citations] or "fairly doubtful," [citation]. Id. at 1283 (citations omitted). "In short, a 'substantial question' is one of more substance than would be necessary to a finding that it was not frivolous." Id. (citing cases).
2. Analysis
Defendant urges that, under the United States Supreme Court case of Morissette, it was error not to instruct the jury that theft of government property must be "willful," and it was also error not to define "stole" for the jury. (Motion at 8-11 (citing Morissette v. United States, 342 U.S. 246 (1952)).)
Neither argument is well-taken, as neither argument appears to present issues that are "fairly debatable" under Handy. See Handy, 761 F.2d at 1280-83. As described below, the absence of the term "willful" notwithstanding, the instruction given to the jury (Model Instruction 8.39) required the jury to find that the defendant acted wrongfully and included the requisite mens rea requirement under Morissette.
a. "Willful"
First, Morissette does not stand for the proposition that the term "willful" belongs in an instruction as to theft of government property. Morissette v. United States, 342 U.S. 246 (1952). Instead, Morissette stands for the proposition that a Section 641 violation requires a mens rea element; in other words, that the defendant knew he was doing something wrongful. Id. at 275-76. Under Morissette, as long as an instruction conveys the concept that the defendant must have known he was doing something wrongful, Morissette's mens rea component is satisfied.
The instructions given in the instant case sufficiently conveyed the requisite mens rea element. The instruction required the jury to find that the defendant "knowingly stole" the property of another "with the intention of depriving the owner" of the use of the property. (Model Instruction 8.39.) In other words, here the jury did not have to find that the defendant merely intended to take possession of another's property, which was the instruction erroneously given in Morissette. (See Morissette, 342 U.S. at 275-76 (finding that the district court erred in framing the instruction to express the question, "Did he intend to take the property?")). Here, the jury was instructed that the defendant had to have acted "with the intention of depriving the owner of" its property when the defendant "knowingly stole" the property.
In the instant case, the Section 641 instruction used was identical to the Ninth Circuit Model Instruction (Model Instruction 8.39). Model Instruction 8.39 does not use the term "willfully."
b. "Stole"
Second, Morissette does not state that it is error not to define the term "stole" for the jury. Instead, Morissette holds that Section 641 instructions must express a mens rea element, that is, that the defendant actually knew he was doing something unlawful rather than merely intending to take given property. Morissette, 342 U.S. at 275-76.
Again, the instruction in this case included a mens rea requirement: that the defendant "knowingly stole" the property of another "with the intention of depriving the owner" of the use of the property. Accordingly, the jury did not have to find that the defendant merely took possession of another's property, as with the erroneous instruction in Morissette. Id.
Regarding defendant's argument that the term "steal" should have been defined for the jury, the Ninth Circuit Model instructions do not include a definition of that term. The given instruction conveys the concept by elaborating that the stealing includes "taking the property of another," thereby essentially defining the term "steal." Further, a common sense reading of the word "steal" conveys the concept of a wrongful act. Moreover, while defendant cites the instructions the undersigned gave in the Colwell case and argues that the instructions to the jury defined "steal" in that case, the undersigned gave the jury that definition because defendant Colwell requested a definition of "stole." (U.S. v. Colwell, 2:10-cr-00256, Dkt. No.33 at 6 (Defendant's Second Amended Proposed Jury Instructions, requesting defendant's definition of "stole" as "the term 'stole' means acquired dishonestly.") Unlike the defendant in Colwell, who requested her own definition of the word "stole," defendant Bole did not request that the jury be instructed as to that word. Further, as discussed during the hearing, the facts of the Colwell case differed from the facts of the instant case. The fact that a defendant in one particular case under Section 641 requested and received a definition of "stole" does not make it error not to define that word for the jury in every Section 641 case.
In Colwell, after arguments by the parties, and because of the unique facts in that case, the court crafted its own definition of "stole" by lifting it directly from Morissette, and defendant's proffered instruction (i.e., that "stole" means "acquired dishonestly" was not ultimately used. (Compare Colwell's proffered "stole" instruction, Dkt. No. 33 at 6 with instruction ultimately used, Dkt. No. 60 at transcript page 368.)
3. In Campbell, The Ninth Circuit Held That The Model Instruction For Violations of 18 U.S.C. § 641 Sufficiently Includes A Mens Rea Element
In Campbell, the defendant was convicted of two crimes: theft of government property under Section 641, and depredation of government property. U.S. v. Campbell, 42 F.3d 1199, 1204 -1205 (9th Cir. 1994). The court in Campbell addressed the Ninth Circuit Model instruction "[o]n the elements of 18 U.S.C. § 641," which read:
The government must prove each of the following elements beyond a reasonable doubt; First, the defendants stole property of value with the intention of depriving the owner of the use or benefit of the property; and Second, the property belonged to the United States. If you decide that a defendant is guilty, you must then decide whether the government has proved beyond a reasonable doubt that the value of the property was more than $100.Id. at 1204-05. The defendant in Campbell argued that this instruction lacked a requirement of criminal intent, but the court held simply that, "[i]n the absence of objection, it was not plain error for the district court to use these instructions." Id. at 1205. In sum, the court in Campbell upheld the challenged Section 641 instruction even though it lacked the term "willfully."
In defendant's Reply brief and during the hearing, defendant argued that Campbell is distinguishable from the instant case. (Reply, Dkt. No. 81 at 2-3.) Defendant attempts to distinguish Campbell because "the Campbell issue challenges the failure to define 'willfulness.' This is not Bole's issue on appeal." (Reply at 2.) Contrary to defendant's reading of Campbell, that case is analogous. The Court of Appeals upheld the Section 641 instruction even though it did not include the term "willfully" — the very term defendant Bole argues should have been included in his Section 641 instruction. See Campbell, 42 F.3d at 1204-05. Defendant also erroneously suggests that, in Campbell, the jury instruction as to Section 641 used the term "willfully." (Reply at 2.) Defendant is mistaken. As described herein, there were two different crimes charged in Campbell and thus, two different jury instructions. Campbell, 42 F.3d at 1204-05. The jury instruction on Section 641 did not include the term "willfully;" it was a jury instruction on depredation of government property that included the term. Id. Defendant has not compellingly shown Campbell to be distinguishable.
In the instant case, the instructions on Section 641 were identical to those upheld in Campbell, except that they went a step even further as to mens rea and included the term "knowingly." Accordingly, it cannot be said that defendant's argument on appeal presents a "fairly debatable" question of law that meets the Handy standard.
4. In Derington, The Ninth Circuit Clarified That The Terms "Stole" And "With The Intention of Depriving The Owner"Are Sufficient To Instruct The Jury Regarding Mens Rea Under Morissette
The Ninth Circuit Court of Appeals has held that instructing a jury that the "defendant 'stole property' and did so 'with the intention of depriving the owner of the use or benefit of the property' is sufficient to put at issue whether or not a defendant had mens rea under Morissette." U.S. v. Derington, 229 F.3d 1243, 1248-49 (9th Cir. 2000).
Similar to the facts of Campbell, in Derington the defendant was convicted of two crimes: theft of government property under Section 641, and depredation of government property. Defendant Derington appealed his conviction on the latter offense, arguing that the jury instructions did not require the jury to find that the defendant acted with mens rea. The jury had been instructed that a conviction required the defendant "willfully" engaged in depredation; the defendant argued that the instruction should have included the word "knowingly."
The Ninth Circuit Court of Appeals first found that the defendant was correct: the crime of depredation requires a "knowing" level of mens rea, not simply willfulness. Derington, 229 F.3d at 1248-49. However, the Court of Appeals found the error on the depredation instruction to be harmless for two reasons. First, the instructions for both offenses (theft and depredation), when taken together, required the jury to find the requisite mens rea. Second, by convicting the defendant of the Section 641 offense, the jury necessarily found that the defendant possessed the requisite mens rea. Id. Both reasons hinged on the Section 641 instructions, which the Court of Appeals found to have properly put in issue the necessary level of mens rea.
In Derington, the instructions on count one (i.e., Section 641) were:
In order for the defendant to be found guilty of [violating § 641], the Government must prove each of the following elements beyond a reasonable doubt: First, the defendant stole property of value with the intention of depriving the owner of the use or benefit of the property; andId. at 1248-49. The court in Derington found that "[t]he instructions explicitly direct the jury that it must find that Derington 'stole property' and did so 'with the intention of depriving the owner of the use or benefit of the property.' The instructions were sufficient to put at issue whether or not Derington had mens rea." Id.
Second, the property belonged to the United States. If you decide that the defendant is guilty, you must then decide whether the Government has proved beyond a reasonable doubt that the value of the property was more than $100.
Thus, the court in Derington recognized that under Morissette, Section 641 requires a mens rea element; namely, that the defendant knew he "doing something unlawful." Id. at 1247-48. The Court of Appeals held that instructing the jury that the "defendant 'stole property' and did so 'with the intention of depriving the owner of the use or benefit of the property' was sufficient to put at issue whether or not the defendant had mens rea under Morissette." Id. at 1248-49.
The court in Derington held:
"The instructions explicitly direct the jury that it must find that Derington 'stole property' and did so 'with the intention of depriving the owner of the use or benefit of the property.' The instructions were sufficient to put at issue whether or not Derington had mens rea. Having found Derington guilty of count one, the jury necessarily found that he knew he was acting unlawfully not only in stealing the property but in committing depredations upon it. We reach this conclusion only after considering Morissette v. United States, 342 U.S. 246, 72 S. Ct. 240, 96 L.Ed. 288 (1952). Morissette requires that a violator of § 641 be shown to have mens rea; that is, that the violator knows that he is doing something unlawful. The instructions held to be defective in that case required the jury only to answer the question, Did the defendant intend to take the property? Id. at 27576, 72 S. Ct. 240. Here the jury, convicting Derington of count one, found that he stole, that is knowingly appropriated, property of an owner who was other than himself. Any deficiency in the instruction on count two [depredation] that resulted from a lack of mens rea instruction was, therefore, harmless." Derington, 229 F.3d at 124849.
In sum, the court in Derington held that an instruction as to Section 641 that includes the terms "stole property" with the "intention of depriving the owner of the use or benefit of the property" is sufficient to convey the mens rea requirement to the jury in accordance with Morissette. Id. Indeed, while the term "willfully" was insufficient to convey the mens rea required by Morissette, the terms "stole" and "intention of depriving the owner" were sufficient to remedy that error. Id.
In the instant case, defendant argues that the court erred in not including the term "willfully" in the Section 641 instruction in light of Morissette's pronouncement that "[t]o steal means to take away from one in lawful possession without right with the intention to keep wrongfully." Morissette, 342 U.S. at 271. However, the court in Derington clarified that the term "willfully" is actually insufficient to convey the requisite mens rea element under Morissette. The court in Derington held that instructing a jury that the defendant having "stole" the "property of another with the intention of depriving the owner" is sufficient under Morissette. Derington, 229 F.3d at 1248-49. Accordingly, consistent with Derington, the Section 641 instruction in the instant case was not erroneous— the instruction used the exact terms the court in Derington deemed sufficient to instruct on mens rea under Morissette. Indeed, the instruction went the additional step of including the term "knowingly," which further clarified the need for a guilty mind in order to convict under Section 641.
IV. CONCLUSION
Given the foregoing, defendant has not met his burden of showing that a failure to instruct the jury regarding the terms "willfully" and "stole" present a "fairly debatable" issue of law. These issues are not "fairly debatable" under Handy given that: (1) Morissette does not expressly compel the use of the term "willfully" in a Section 641 instruction and does not expressly require defining the word "stole" for the jury; (2) the instruction in this case expressed the need to find mens rea given use of the terms "stole," "property of another with the intent to deprive," and "knowingly"; (3) the instruction used was the unaltered Ninth Circuit Model Instruction, which did not include the word "wilfully" and did not define "stole"; (4) Campbell and Derington, which are both binding Ninth Circuit Court of Appeal authorities, expressly clarify that a Section 641 instruction with the terms "stole" and "with the intention of depriving the owner of the use and benefit of the property" is sufficient to express the mens rea requirement espoused in Morissette, and the instruction in the instant case included both of these elements and the additional requirement that defendant needed to act "knowingly," further highlighting the mens rea needed for the crime. Accordingly, because it cannot be said that defendant's argument presents a "fairly debatable" legal issue, defendant's Motion is denied.
In light of the foregoing, IT IS HEREBY ORDERED that:
Defendant's Motion For Release Pending Appeal (Dkt. No. 75) is denied.
________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
(A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c) of this title; and
(B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in
(i) reversal,
(ii) an order for a new trial,
(iii) a sentence that does not include a term of imprisonment, or
(iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.
If the judicial officer makes such findings, such judicial officer shall order the release of the person in accordance with section 3142(b) or (c) of this title, except that in the circumstance described in subparagraph (B)(iv) of this paragraph, the judicial officer shall order the detention terminated at the expiration of the likely reduced sentence. (2) The judicial officer shall order that a person who has been found guilty of an offense in a case described in subparagraph (A), (B), or (C) of subsection (f)(1) of section 3142 and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained. 18 U.S.C. § 3143(b) (emphasis added).