U.S. v. Fulbright, 94-30346

• Decision Date: 22 January 1997
• Docket Number: No. 94-30346,94-30346
• Parties: 97 Cal. Daily Op. Serv. 480, 97 Daily Journal D.A.R. 783 UNITED STATES of America, Plaintiff-Appellee, v. Ronald FULBRIGHT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 443

105 F.3d 443

97 Cal. Daily Op. Serv. 480, 97 Daily Journal

D.A.R. 783

UNITED STATES of America, Plaintiff-Appellee, v. Ronald FULBRIGHT, Defendant-Appellant.

No. 94-30346.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 17, 1995.

Opinion Filed Nov. 8, 1995.

Order Amending Opinion filed Dec. 29, 1995.

Opinion Withdrawn Jan. 22, 1997.

Decided Jan. 22, 1997.

Daniel Donovan, Assistant Federal Defender, Great Falls, MT, for defendant-appellant.

Robert J. Brooks, Assistant United States Attorney, Butte, MT, for plaintiff-appellee.

Appeal from the United States District Court for the District of Montana, Michael R. Hogan, District Judge, Presiding. D.C. No. CR-93-00026-MRH.

Before: FARRIS, NOONAN, and HAWKINS, Circuit Judges.

ORDER

The Opinion filed November 8, 1995 and amended December 29, 1995 is withdrawn.

OPINION

MICHAEL DALY HAWKINS, Circuit Judge:

This appeal deals with a dangerous intersection in a free society, one at which the expression of discontent or disagreement with the actions of government can collide with legitimate efforts to deal with actions intended to threaten or impede federal officials in the carrying out of their duties.

Defendant-appellant Ronald Fulbright ("Fulbright") is a Montana farmer who experienced some financial reverses. When his creditors sought foreclosure, he sought bankruptcy protection. When these efforts failed, Fulbright mailed a series of documents to United States Bankruptcy Judge John Peterson. Among the documents mailed by Fulbright was a "Notice and Demand for Declaration of Judge's Impartiality" and a "Citizens' Arrest Warrant for Citizens' Arrest." The notice "charged" Judge Peterson with numerous "crimes," including sedition, high treason, bank fraud, and armed robbery. The "warrant" purportedly authorized peace officers to somehow arrest Judge Peterson. Before Fulbright mailed either of these documents, Judge Peterson recused himself from further participation in Fulbright's bankruptcy matters. On April 16, 1993, shortly after the recusal, Fulbright mailed the "Notice" to Judge Peterson. Several weeks later, on June 2, 1993, Fulbright filed the "Warrant" in bankruptcy court. On May 10, 1993, after the "Notice" was mailed but before the "Warrant" was filed, Fulbright's bankruptcy case was dismissed.

Fulbright was indicted for conspiracy to impede or injure federal officers under 18 U.S.C. § 372 (Count I) and for obstruction of justice by intimidating or injuring federal officers (Count II), and aiding and abetting the obstruction of justice (Count III), in violation of 18 U.S.C. § 1503. At his jury trial, Fulbright took the stand in his own defense, admitted the mailings, but claimed that he had not intended to intimidate or harass Judge Peterson: "I was just trying to get a farm foreclosure action hopefully remedied." Fulbright was convicted and later sentenced to a 27-month prison term, and a 3-year period of supervised release.

Fulbright appeals, claiming a series of errors in the conduct of his trial and the calculation of his sentence. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part and remand.

I. JURY INSTRUCTIONS

A. The Jewell Instruction

In its jury instructions, the district court gave the "deliberate ignorance" instruction derived from United States v. Jewell, 532 F.2d 697, 700 (9th Cir.) (en banc), cert. denied, 426 U.S. 951, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976), known as the Jewell instruction. ¹ We review the propriety of the Jewell instruction de novo. United States v. Asuncion, 973 F.2d 769, 772 (9th Cir.1992). A Jewell instruction is appropriate if the evidence supports an inference that the defendant deliberately avoided obtaining knowledge that renders his conduct illegal. United States v. Alvarado, 838 F.2d 311, 314 (9th Cir.), cert. denied, 488 U.S. 838, 109 S.Ct. 103, 102 L.Ed.2d 78 (1988); see also United States v. Sanchez-Robles, 927 F.2d 1070, 1075 (9th Cir.1991).

During its cross-examination of Fulbright, the government focused on Fulbright's legal research experience and use of Black's Law Dictionary to find legal definitions. This evidence, the government argues, demonstrates that Fulbright was aware of a high probability that his conduct was illegal. Even if knowledge of illegality had been an element of the crime, however, this evidence would have been insufficient to give rise to an inference of deliberate ignorance. To justify a Jewell instruction in such circumstances, the government must show more than a few forays into a law library by a layman. Deliberate ignorance (sometimes referred to as willful blindness) may be found only "where it can almost be said that the defendant actually knew." Jewell, 532 F.2d at 704 (quoting G. Williams, Criminal Law: The General Part, § 57 at 159 (2d ed.1961)). Since the evidence showed, at most, reckless avoidance of knowledge by Fulbright, the district court's Jewell instruction would have been improper even if Fulbright's knowledge of the illegality of his conduct had been relevant. See Alvarado, 838 F.2d at 314; United States v. Pacific Hide & Fur Depot, Inc., 768 F.2d 1096, 1098 (9th Cir.1985).

The error, however, was harmless. In the context of this case, the Jewell instruction essentially allowed the jury to conclude that Fulbright was not ignorant of the law. Since ignorance of the law is not a defense, Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 242-43, 2 L.Ed.2d 228 (1957), there was no harm in instructing the jury that Fulbright knew or recklessly avoided knowing the law.

B. The Pinkerton Instruction

The district court also made a mistake in its instruction regarding the so-called Pinkerton rule, concerning vicarious liability among co-conspirators. ² After explaining that each member of a conspiracy can be punished for the crimes of the other members committed during and in furtherance of the conspiracy, the court stated: "Therefore, you may find the defendant guilty of conspiracy as charged in count I of the superseding indictment if the government has proved each of the following elements beyond a reasonable doubt...." The underscored language should instead have been, "obstruction of justice as charged in counts II and III." Both parties acknowledge that an error was made, but they disagree about the consequences of that mistake.

1. Is "plain error" the appropriate standard of review?

During the discussion regarding the instructions, Fulbright's counsel clearly objected to the error, and both the court and the prosecutor agreed that the language should be changed. For some reason, however, the court did not correct the error before charging the jury. Since the court had previously agreed to correct the instruction, it was incumbent on the defense to call the error to the court's attention. Had Fulbright's counsel alerted the district court of its oversight, it is apparent the court would have corrected its mistake. Because Fulbright failed to raise a contemporaneous objection we review the instruction for plain error. United States v. Fagan, 996 F.2d 1009, 1016 (9th Cir.1993); see Fed.R.Crim.P. 52(b).

2. Is the instruction plainly erroneous?

Fulbright argues that the court's error allowed him to be convicted of conspiracy if the jury determined that he or one of his co-defendants committed the underlying offense of obstruction of justice. According to Fulbright, this error permitted the jury to convict him without considering the elements of conspiracy, mandating a new trial. Fulbright is incorrect. The instruction was intended to inform the jury that Fulbright could be convicted of obstructing justice if his co-conspirators committed that crime in furtherance of the conspiracy. Instead, the judge told the jury that Fulbright could be convicted of conspiracy as charged in Count I if one of his co-defendants committed the crime of obstruction of justice (the crime underlying the conspiracy). However, in the erroneous instruction, the district court went on to state that the government must prove, beyond a reasonable doubt, that Fulbright "was a member of the same conspiracy at the time one of the offenses charged in count II or count III was committed." In essence, then, the district court instructed the jury that Fulbright could be convicted of conspiracy if he was guilty of conspiracy. This logic, while circular, is not plainly erroneous and does not omit an element of the offense. To determine whether Fulbright was "a member of the ... conspiracy" as required by the erroneous instruction, the jury had to look to the elements of conspiracy set forth in the correct conspiracy instruction. Though somewhat confusing, the incorrect Pinkerton instruction was not plainly erroneous.

II. SUFFICIENCY OF THE EVIDENCE

Fulbright argues that there was insufficient evidence to sustain his convictions. There is sufficient evidence to support a conviction if, reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Lennick, 18 F.3d 814, 819 (9th Cir.), cert. denied, 513 U.S. 856, 115 S.Ct. 162, 130 L.Ed.2d 100 (1994).

A. Count I--Conspiracy

Fulbright correctly notes that the government did not present direct evidence of a conspiratorial agreement between himself and his co-defendants. However, the existence of an agreement may be inferred from circumstantial evidence. United States v. Krasovich, 819 F.2d 253, 255 (9th Cir.1987). See also United States v. Castro, 972 F.2d 1107, 1110 (9th Cir.1992) ("The government does not have to present direct evidence. Circumstantial evidence and the inferences drawn from that evidence will sustain a conspiracy conviction."), cert. denied, 507 U.S. 944, 113 S.Ct. 1350, 122 L.Ed.2d 731 (1993); United States v. Calabrese, 825 F.2d 1342,...