United States v. Johansen , 360 F. App'x 763 ( 2009 )

FILED
NOT FOR PUBLICATION DEC 23 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 07-50094
Plaintiff - Appellee, D.C. No. CR-05-01002-JSL-01
v.
MEMORANDUM *
HENRIK JOHANSEN,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 07-50095
Plaintiff - Appellee, D.C. No. CR-05-01002-JSL-02
v.
STANDBY PARTS, INC.,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
J. Spencer Letts, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted December 11, 2009 **
Pasadena, California
Before: HALL and SILVERMAN, Circuit Judges, and CONLON, *** District
Judge.
Henrik Johansen (“Johansen”) and Standby Parts, Inc. (“Standby”) timely
appeal from a judgment of conviction, entered after a five-day jury trial, on one
count of conspiracy to commit fraud involving aircraft parts in violation of 18
U.S.C. § 38(a)(3) (“Count One”), and one count of falsifying or concealing a
material fact concerning an aircraft part in violation of 18 U.S.C. § 38(a)(1)(A)
(“Count Two”). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
I.
The large body of testimonial and documentary evidence presented at trial,
the procedural events of the case, and the applicable law are well known to the
parties. Thus, we will recite such information only as necessary to our disposition
of the claims of error raised in this appeal.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
-2-
II.
Johansen and Standby (collectively, “defendants”) first contend that there
was insufficient evidence to support their convictions. “There is sufficient
evidence to support a conviction if, ‘viewing the evidence in the light most
favorable to the government, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’ ” United States v.
Corona-Verbera, 509 F.3d 1105, 1117 (9th Cir. 2007) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). We must draw all reasonable inferences in
favor of the government, and resolve any conflicts in the evidence in favor of the
jury’s verdict. Id. Applying this standard of review, we reject defendants’ claims
of insufficiency of the evidence to support their convictions.
As to Count Two, the evidence presented at trial was plainly sufficient for a
rational jury to find that, as alleged in the indictment, the “as removed” bolts sold
to ASI were not “new,” that defendants knew they were not “new,” and that
defendants acted with the intent to defraud when they sold the bolts as “new.”
That evidence included the following: documents showing that Standby purchased
eight engine bolts in “as removed” condition; testimony and documents showing
that Johansen inspected the bolts upon receipt and found some of them to be in
“damaged” condition; testimony of an FAA Aviation Safety Inspector stating that
-3-
parts sold “as removed” are considered to be in “used” condition; testimony of
admitted co-conspirator Daniel Booker (“Booker”) that he was authorized by the
FAA to issue “airworthiness certificates” (Forms 8130-3) for aircraft parts, and
often did so for parts sold by defendants without ever inspecting the parts and/or
receiving relevant traceability documentation; further testimony from Booker
admitting that he provided a Form 8130-3 for the bolts sold to ASI, certifying them
as “new” without having been provided the documents showing Standby purchased
them “as removed”; admissions Johansen made to an FBI agent about how he was
able to obtain Forms 8130-3 from Booker certifying the parts as “new” without
Booker seeing the part, and his practice of and altering (or directing Standby
employees to alter) source documentation for parts purchased in “repairable” or “as
removed” condition, to redesignate them as “new”; testimony from the president
of ASI stating that defendants did not provide the source documentation showing
the bolts were purchased by Standby in “as removed” condition, but rather a copy
of the document that was modified by Johansen to state that they were “new”;
documents and further testimony by ASI’s president showing that he requested
“new” bolts for resale to a customer, with full traceability and Form 8130-3, and
that the customer had returned the bolts to ASI and demanded a refund because the
bolts were not “new.” This and other evidence in the record was sufficient to
-4-
support defendants’ convictions of falsifying or concealing a material fact
concerning an aircraft part. See 18 U.S.C. § 38(a)(1)(A)
As to the conspiracy charged in Count One, there was ample evidence of
interlocking events sufficient to demonstrate that defendants agreed with Booker to
carry out the charged objectives, and that they, Booker, or other co-conspirators
knowingly falsified material facts, made materially fraudulent representations, or
prepared materially false documents concerning aircraft parts sold to ASI and at
least one other customer, Midway Trading Company. See White v. United States,
394 F.2d 49, 53 (9th Cir. 1968). Moreover, the jury could reasonably infer that
both defendants and Booker—who admittedly supplied numerous false Forms
8130-3 for parts sold by defendants without seeing the parts or traceability
documentation required to issue valid certifications—knew the certifications
Booker issued for the bolts and other aircraft parts were false. The jury also could
reasonably infer defendants’ knowledge of the unlawful objectives of the
conspiracy from Booker’s testimony that Johansen threatened to report Booker to
the FAA if Booker did not continue providing defendants with fraudulent
certifications. This and other evidence presented at trial was adequate to show at
least tacit agreement between defendants and Booker to knowingly sell aircraft
parts using materially false documents and, thus, a conspiracy to commit fraud
-5-
involving aircraft parts in violation of 18 U.S.C. § 38(a)(3).
III.
Defendants next contend that they were prejudiced by the misconduct of
government witnesses who met a juror in the bar of a hotel where they were all
being housed during trial, attempted to engage her in conversation, offered to buy
her drinks, and made a disparaging comment about the defendants. Relying on
Mattox v. United States, 146 U.S. 140, 150 (1892), Remmer v. United States, 347
U.S. 227, 229-30 (1954), and more recent Ninth Circuit jury tampering cases, see
e.g., United States v. Dutkel, 192 F.3d 893, 894-95 (9th Cir. 1999), defendants
argue that the encounter in the hotel bar was presumptively prejudicial, and that the
government failed to make a sufficiently strong showing to rebut the presumption.
Defendants further contend that by refusing to declare a mistrial based on this
incident, the district court abused its discretion and violated their Sixth
Amendment rights to a fair trial by an impartial jury. We disagree.
Assuming without deciding that the Mattox-Remmer presumption was
triggered in this case, the issue is whether the prosecution has shown there was no
reasonable possibility that the unauthorized communication between the
government witnesses and the juror influenced the verdict. See Caliendo v.
Warden, Cal. Men’s Colony, 365 F.3d 691, 696 (9th Cir. 2004) (citing Dutkel, 192
-6-
F.3d at 899). We believe the prosecution met its burden in the circumstances of
this case. The juror’s encounter with the government witnesses occurred on the
night of the third day of trial, and was promptly reported to the trial judge the
following morning, before the jury reconvened for the fourth day of trial. After
being questioned by the district court and counsel, the juror was immediately
removed for cause and replaced by an alternate. The juror said she had formed
negative impressions about both the government witnesses and the defendants, and
that she did not believe she could be fair and impartial, but that she had not
discussed the incident or shared her impressions with any of the other jurors.
There was, moreover, no indication that other jurors had been exposed to similar
misconduct by the government witnesses, and the prosecutor took prompt curative
action to prevent further misconduct by admonishing his witnesses not to have any
contact with jurors. In these circumstances, we believe there was no reasonable
possibility that the unauthorized communication between the government
witnesses and the juror influenced the verdict. Accordingly, we reject defendants’
claim that the district court’s failure to order a mistrial based on this juror incident
deprived them of their rights to a fair trial before an impartial jury.
IV.
Finally, defendants contend that the district court committed plain error by
-7-
failing properly to question a juror about her prior relationship with the defendants,
and thereby deprived them of their right to a fair trial before an impartial jury. We
reject this claim of error.
The district court’s voir dire must be reasonably sufficient to test the jurors
for bias and partiality. United States v. Payne, 944 F.2d 1458, 1474 (9th Cir.
1991). That standard was satisfied here. The district court’s voir dire was
sufficient to establish that the prospective juror had heard of the defendants and
knew they had been clients of her employer in connection with a real estate
transaction, but that she did not recall any specific dealings with them. Based on
the juror’s responses, there was no indication of bias, and thus no reason for further
inquiry at that point. The questioning was also sufficient to alert defendants to any
need to ask additional questions, yet defendants failed to request supplemental voir
dire and did not question her themselves—even though they were in a unique
position to know the facts concerning any relationship between themselves and the
juror or her employer. Nor did defendants object to the juror being seated.
Defendants suggest, however, that the juror’s potential “bias” was not
revealed until after the jury had completed its deliberations, when the foreperson
sent a note to the trial judge, asking that the jurors not be polled individually about
their verdict because “one of the jurors knows the defendants.” Upon receiving
-8-
this note from the jury, the district court interviewed the juror about her relationship
to defendants. The court then gave defendants an opportunity to ask additional
questions, and they did so until they had no further questions. Defendants claim the
court’s inquiry was inadequate, but do not identify any additional issue the court
should have addressed.
Defendants’ contention that additional inquiry would have revealed grounds
to challenge the juror for cause is likewise baseless. Although the juror’s responses
to the court’s and the parties’ questions were reported as “inaudible,” the record
shows that, after interviewing the juror, the defendants did not seek to remove her,
and did not claim she had given false or deceptive answers during voir dire or that
she could not be impartial due to her prior contact with defendants. It is also
apparent from the exchange between the district court and counsel regarding the
juror’s responses that she had only limited professional contact with defendants, did
not know defendants personally, did not communicate with her employer about
defendants during the course of the trial, believed she was fair and impartial, and if
she had any bias at all, it was in favor of defendants. In addition, the record
indicates that the only communication the juror had with her fellow jurors about her
contacts with defendants before they reached their unanimous verdict was what she
said in open court during voir dire.
-9-
In sum, we find no error—plain or otherwise—in the district court’s handling
of voir dire. Nor does the record reveal any bias or partiality on the part of the juror
in question. Accordingly, we reject defendants’ claim that the district court’s denial
of their motion for mistrial based on this incident deprived them of their right to a
fair trial before an impartial jury.
V.
For all the foregoing reasons, the judgment of conviction as to each
defendant, including the sentence imposed, is AFFIRMED.
-10-