United States v. Melissa Morton ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 7 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50345
Plaintiff-Appellee, D.C. No.
2:15-cr-00611-SVW-2
v.
MELISSA MORTON, AKA Melissa Ann MEMORANDUM*
Morton, AKA Melissa Thomson Morton,
AKA Melissa Thomson, AKA Melissa Ann
Thomson,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted May 15, 2019
Pasadena, California
Before: NGUYEN and OWENS, Circuit Judges, and ANTOON,** District Judge.
A jury convicted Defendant-Appellant Melissa Morton and her husband1 of
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
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Morton and her husband were tried together, and both were convicted.
Mr. Morton also appealed, but his appeal is not before us.
multiple crimes related to a complex conspiracy to defraud the United States by
filing false tax returns. After Morton’s conviction, the district court sentenced her
to two concurrent 24-month terms of incarceration. Morton now challenges
several aspects of the district court proceedings. Because the parties are familiar
with the background facts of the case, we do not recount them here. We have
jurisdiction under 28 U.S.C. § 1291. After thorough review of the many issues
presented, we affirm.
1. Morton first challenges the district court’s order denying her motion
to suppress. She contends that the warrant to search her apartment was both
overbroad and insufficiently particularized. We conclude that the Fourth
Amendment did not require suppression.
Government agents submitted a warrant application to a United States
Magistrate Judge. The application included two attachments and an 87-page
affidavit. Attachment A described Morton’s apartment, the place to be searched.
Attachment B—attached to the warrant at all times—described 22 categories of
documents and evidence that the agents were authorized to search for and seize.
The affidavit, which an Internal Revenue Service investigator signed, detailed the
probable cause upon which the warrant application was based. The search warrant
application package that the magistrate judge reviewed contained the affidavit, but
the affidavit was not attached to the search warrant. The case agent overseeing the
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search left the affidavit in his locked vehicle across the street from Morton’s
apartment while agents executed the search. Morton raises overbreadth and
particularity challenges to the search warrant.2
a. Overbreadth
To avoid overbreadth, a warrant must give “legal, that is, not overbroad,
instructions,” United States v. SDI Future Health, Inc., 568 F.3d 684, 702 (9th Cir.
2009), meaning that “there must be probable cause to seize the particular things
named in the warrant,” id. (alterations omitted) (internal quotation marks and
citations omitted). Probable cause, in turn, means that there is “a fair probability
2
In their briefs, the parties argue at length about whether the warrant
“incorporated” the affidavit so as to cure any deficiencies in the warrant. But we
need not reach this issue. “The Fourth Amendment by its terms requires
particularity in the warrant, not in the supporting documents,” Groh v. Ramirez,
540 U.S. 551, 557 (2004) (citations omitted), and thus an affidavit may remedy an
insufficiently particular warrant only if the warrant “incorporated” the affidavit,
see United States v. Prop. Belonging to Talk of the Town Bookstore, Inc. (In re
Seizure of Property Belonging to Talk of the Town Bookstore, Inc.), 644 F.2d 1317,
1319 (9th Cir. 1981) (setting forth the two-pronged incorporation test). But
because an overbreadth evaluation is a type of probable cause inquiry, see United
States v. Weber, 923 F.2d 1338, 1342 (9th Cir. 1990), as amended on denial of
reh’g (Jan. 15, 1991) (referring to the overbreadth requirement as the “probable
cause rule”), we must always evaluate the affidavit—regardless of whether the
warrant at issue properly incorporated that affidavit—when determining whether a
warrant was overbroad. Cf. United States v. Grubbs, 547 U.S. 90, 98 (2006) (“The
Fourth Amendment does not require that the warrant set forth the magistrate’s
basis for finding probable cause . . . .”). Because we conclude that Attachment B
sufficiently particularized the warrant, we need not rely on the affidavit for our
particularity analysis. We therefore need not determine whether the warrant
properly incorporated the affidavit to resolve this case.
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that contraband or evidence of a crime will be found in a particular place, based on
the totality of circumstances.” United States v. Diaz, 491 F.3d 1074, 1078 (9th Cir.
2007) (internal quotation marks and citations omitted). When evaluating probable
cause, we must “ensure that the magistrate had a ‘substantial basis’ for finding
probable cause.” Weber, 923 F.2d at 1343 (quoting Illinois v. Gates, 462 U.S. 213,
238 (1983)).
Here, the affidavit provided probable cause for the seizure of 21 of the 22
categories of items listed in Attachment B. Specifically, government agents had
probable cause to seize the items listed in categories “a” through “t” and “v” of
Attachment B. These categories describe documents, records, and various
instrumentalities that Morton, her husband, or their related businesses likely used
to facilitate the fraudulent schemes described in the affidavit.
However, category “u,” which directed agents to seize the “[c]orrespondence
and notes, in both electronic (e-mail) and physical form by and between Sean
Morton, Melissa Morton, Heaven & Earth LLC, any dog walking business, and
any cat breeding business, and/or any third party” (emphasis added), authorized
the seizure of items beyond the scope of the probable cause upon which the
warrant was based. The magistrate judge did not have a substantial basis for
finding probable cause for such a seizure. Cf. SDI Future Health, 568 F.3d at 705
(“[T]his category practically begs the search team to find and to seize the contact
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information of every person who ever dealt with SDI. It would have been far more
sensible, as well as constitutional, to limit the search to information relating to
[individuals and businesses] . . . likely to turn up conspirators in the alleged fraud.”
(citation omitted)).
But the overbreadth of category “u” does not fell this warrant. As the
Government noted at oral argument, any seized correspondence encompassed by
category “u” and admitted at trial also falls within the descriptions of other
categories listed in Attachment B. Because the search and seizures were limited to
the proper scope of probable cause, the Fourth Amendment did not require
suppression. See United States v. Luk, 859 F.2d 667, 677–78 (9th Cir. 1988)
(applying the good-faith exception to an overbroad warrant where agents limited
their search and seizures to the scope of probable cause).
b. Particularity
Particularity, in the Fourth Amendment context, means that “the warrant
must make clear to the executing officer exactly what it is that he or she is
authorized to search for and seize.” SDI Future Health, 568 F.3d at 702 (internal
quotation marks and citation omitted). This “description must be specific enough
to enable the person conducting the search reasonably to identify the things
authorized to be seized.” Id. (internal quotation marks and citations omitted). The
level of detail required in a warrant, however, “is related to the particular
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circumstances and the nature of the evidence sought.” Id. (internal quotation
marks and citation omitted). We review the particularity of a warrant de novo. See
United States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986).
Here, as described in Attachment B, government agents sought 22 categories
of items. Although Attachment B listed many items, it described those items with
particularity—including descriptions of the documents, date ranges within which
the documents had to fall, and entities or individuals to which the documents had
to relate. Attachment B, which was attached to the search warrant, thus satisfies
the particularity requirement regardless of whether the affidavit was incorporated.
See SDI Future Health, 568 F.3d at 702 (“Because the warrant was not vague as to
what it directed law enforcement officers to search for and to seize, we are satisfied
that it did not lack particularity for Fourth Amendment purposes.”).
Based on the foregoing, we affirm the district court’s order denying
Morton’s motion to suppress.
2. Morton next challenges the district court’s denial of her motion for a
mistrial. We review the district court’s decision to deny a mistrial for abuse of
discretion. See United States v. Charmley, 764 F.2d 675, 677 (9th Cir. 1985).
Morton contends that inadmissible testimony by her husband—that Morton was
“in banking for many years”—undercut her defense that she had a good-faith belief
in the legality of the fraudulent schemes in which she and her husband were
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engaged. We are not persuaded.
The district court sustained Morton’s objection to her husband’s testimony
on relevance grounds. We need not resolve whether the testimony was admissible
because even if it were not, the district court’s curative action—sustaining an
objection, striking the testimony, and instructing the jury that stricken testimony
should not be considered—dissipated any effect the testimony may have had on the
trial. See United States v. Lemus, 847 F.3d 1016, 1025 (9th Cir. 2016) (“When the
court strikes testimony and gives . . . an instruction [to disregard it], there is a
strong presumption that the jury has followed the court’s instruction.” (alterations
in original) (internal quotation marks omitted)).
Accordingly, the district court did not abuse its discretion in denying
Morton’s motion for a mistrial.
3. Finally, Morton challenges several of the jury instructions given by
the district court. However, Morton waived some of these challenges, and she
failed to preserve others.
Preliminarily, we note that at trial Morton waived two of her challenges to
the jury instructions. On appeal Morton challenges the jury instructions relating to
the charges of presenting a false, fictitious, or fraudulent claim against the United
States in violation of 18 U.S.C. § 287 and conspiring to defraud the United States
in violation of 18 U.S.C. § 371. But Morton and the Government jointly proposed
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the instructions relating to those two offenses, and Morton’s challenge to these
instructions is based on case law that existed well before she was indicted. We
have previously found waiver in nearly identical circumstances. See United States
v. Cain, 130 F.3d 381, 383–84 (9th Cir. 1997) (concluding that the defendant
waived his right to challenge a jury instruction because defense counsel jointly
proposed the instruction and the case law on which the defendant relied was
published at the time of the trial). In accordance with Cain, we conclude that
Morton waived her challenge to the jury instructions relating to the false claims
and conspiracy charges—18 U.S.C. §§ 287, 371.
Morton also challenges the district court’s jury instructions on the charges of
passing and causing others to pass false or fictitious financial instruments in
violation of 18 U.S.C. § 514(a). Because Morton did not object to these
instructions at trial, we review the instructions for plain error. See United States v.
Conti, 804 F.3d 977, 981 (9th Cir. 2015). The Government charged Morton with
passing the instruments herself and causing others to do so, and the jury convicted
her of all charges. The district court provided a general instruction covering all
charges under § 514(a), and also provided specific instructions on the individual
counts of (1) passing false or fictitious financial instruments, and (2) causing others
to pass false or fictitious financial instruments.
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First, Morton challenges the instruction relating to the charge of passing a
false or fictitious financial instrument herself. However, that instruction accurately
stated the law. We thus find no error in that instruction.
Second, Morton alleges that the district court erred in instructing the jury on
the charges of causing others to pass false or fictitious financial instruments. The
district court included the intent element when it instructed the jury on the charge
of Morton passing the false or fictitious financial instrument herself, but it did not
reiterate the intent element when instructing the jury on the charges of causing
others to pass false or fictitious financial instruments. Morton contends that the
district court’s failure to reiterate the intent element when instructing the jury on
the charges of causing others to pass false or fictitious financial instruments could
have allowed the jury to convict her of violating § 514(a) without finding that she
had the requisite intent. We are not persuaded.
While it was perhaps not best practice, we are not convinced that the district
court’s failure to repeat the intent element allowed the jury to convict Morton
without finding that she had the requisite intent. The district court did not
completely omit the intent element of § 514(a), and it also read the jury the
statutory language of § 514(a), which included the intent element, during its
general instruction on all the § 514(a) charges. Even if the causing-others
instruction was erroneous, any error was harmless and did not affect Morton’s
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substantial rights, as required to reverse for plain error. See Conti, 804 F.3d at 981
(“[A]n omission of an element from a jury instruction that is harmless, under the
standard set forth in Neder [v. United States, 527 U.S. 1 (1999)], does not affect a
defendant’s substantial rights for purposes of plain error review.”). We thus
conclude that the district court did not plainly err in instructing the jury on the
charges of causing others to pass false or fictious financial instruments.
AFFIRMED.
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