United States v. Richard Latka , 696 F. App'x 287 ( 2017 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 18 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 16-50044
Plaintiff-Appellee, D.C. No.
2:15-cr-00095-DSF-1
v.
RICHARD DOUGLAS LATKA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted August 7, 2017
Pasadena, California
Before: REINHARDT, KOZINSKI and CHRISTEN, Circuit Judges.
1. Latka’s indictment was sufficient because “it contain[ed] the elements
of the charged crime in adequate detail to inform [him] of the charge, and . . .
enable[d] him to plead double jeopardy.” See United States v. Morlan, 756 F.2d
1442, 1444 (9th Cir. 1985) (citation omitted).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
page 2
Further, the indictment wasn’t “constructive[ly amended, which] occurs
when the defendant is charged with one crime but, in effect, is tried for another
crime.” United States v. Mancuso, 718 F.3d 780, 792 (9th Cir. 2013) (citations
omitted); see also Stirone v. United States, 361 U.S. 212, 214–15 (1960) (holding
that an indictment for moving sand was impermissibly amended when the
conviction was for moving steel); United States v. Choy, 309 F.3d 602, 607–08
(9th Cir. 2002) (holding that an indictment for bribing a public official was
impermissibly amended when the conviction was for giving money to a private
individual).
“The continuous nature of [Latka’s offense] prevents the indictment from
being duplicitous.” Mancuso, 718 F.3d at 792 (citation omitted). The trial court’s
unanimity instruction also remedied any possible duplicity. See United States v.
Ramirez-Martinez, 273 F.3d 903, 915 (9th Cir. 2001), overruled on other grounds
by United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007).
2. The district court didn’t violate Latka’s right to confront Ellsworth
because the excluded evidence wasn’t relevant and the jury had “sufficient
information to assess [Ellsworth’s] . . . credibility[.]” United States v. Cazares,
788 F.3d 956, 983–84 (9th Cir. 2015).
page 3
3. A district court may, for good cause, remove “any jurors who are
unable to perform or who are disqualified from performing their duties.” Fed. R.
Crim. P. 24(c)(1); see Williams v. Cavazos, 646 F.3d 626, 652 (9th Cir. 2011),
rev’d on other grounds sub nom. Johnson v. Williams, 568 U.S. 289 (2013). The
district court didn’t abuse its discretion because it had good cause to remove Juror
9.
4. There being no individual errors, Latka’s cumulative error claim fails.
AFFIRMED