United States v. William Neidinger ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 14 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10118
Plaintiff-Appellee, D.C. No.
3:20-cr-00009-HDM-CLB-1
v.
WILLIAM PHILLIP NEIDINGER, AKA MEMORANDUM*
William Joseph Beck III,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Argued and Submitted July 18, 2023
San Francisco, California
Before: WARDLAW and M. SMITH, Circuit Judges, and RAYES,** District
Judge.
William Phillip Neidinger appeals his conviction of making a false statement
on a passport application and sentence of eight months’ imprisonment and three
years’ supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Douglas L. Rayes, United States District Judge for the
District of Arizona, sitting by designation.
affirm. Because the parties are familiar with the facts and relevant standards of
review, we do not recount them here, except as necessary to provide context to our
ruling.
1. Neidinger argues that he did not knowingly and intelligently waive his
right to counsel because he reserved “rights” under Haines v. Kerner, 404 U.S. 519(1972) in response to the district court’s questions about his understanding that he
would receive no special treatment if he represented himself. Neidinger’s reference
to Haines was both relevant and applicable to the criminal context. See Haines,
404 U.S. at 520–21 (holding self-represented litigants to “less stringent” pleading
standards); United States v. Qazi, 975 F.3d 989, 993 (9th Cir. 2020) (applying
Haines in criminal case). Even “indulging ‘every reasonable presumption against
waiver,’” United States v. Erskine, 355 F.3d 1161, 1167 (9th Cir. 2004) (quoting
United States v. Arlt, 41 F.3d 516, 520 (9th Cir. 1994)), a relevant and appropriate
reference to caselaw does not reflect a misunderstanding of “the dangers and
disadvantages of self-representation,” United States v. Balough, 820 F.2d 1485,
1487 (9th Cir. 1987).
2. The district court did not err when it rejected Neidinger’s proposed
mens rea instruction and gave another that allowed Neidinger to present his own
defense. Neidinger’s defense was that, based on an excerpt from the Freedom
Outlaw’s Handbook: 179 Things to Do ‘til the Revolution (the “Handbook”), he
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believed he assumed the identity of William Beck and used Beck’s information on
the passport application, believing it to be his own.
The jury instruction given at trial allowed Neidinger to present his defense
that he was Beck—and indeed his standby counsel did so in closing. We find no
reversible error. See United States v. Whittemore, 776 F.3d 1074, 1078 (9th Cir.
2015) (finding no reversible error in rejecting a defendant’s proposed instruction
when the given instruction “adequately encompass[ed]” the defendant’s theory).
3. The district court did not err by excluding a blog post and comments
containing other statements made by Beck, admitting the Handbook excerpt off the
record, and excluding Beck as a witness. None of these decisions prevented
Neidinger from presenting his complete defense because Neidinger read the
Handbook excerpt into the record, displayed the admitted excerpt to the jury,
testified generally about the blog post and comments, and explained that they made
him believe the Handbook reliable. Moreover, Beck’s anticipated testimony was
irrelevant because Neidinger did not encounter Beck until after he claimed to have
formed the belief that he had taken on Beck’s identity. Cf. DePetris v. Kuykendall,
239 F.3d 1057, 1062–63 (9th Cir. 2001) (finding error where a journal
corroborative of a defendant’s state of mind was entirely excluded and no
witness—including defendant—was permitted to testify about it even generally).
4. Nor did the district court abuse its discretion by not giving a specific
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unanimity instruction. A specific unanimity instruction is necessary only when
“there is a genuine possibility of jury confusion or that a conviction may occur as
the result of different jurors concluding that the defendant committed different
acts.” United States v. Chen Chiang Liu, 631 F.3d 993, 1000 (9th Cir. 2011). The
jury note did not reflect confusion about whether Neidinger committed different
acts. And a jury need not be unanimous as to which statement was false to convict
for making a false statement on a passport application. See United States v.
McCormick, 72 F.3d 1404, 1409 (9th Cir. 1995).
5. Finally, Neidinger’s challenges to his sentence and release conditions
are unavailing. The district court did not err by basing the sentence on Neidinger’s
decision to proceed to trial in violation of Neidinger’s due process rights. Rather,
the district court explained that a term of imprisonment in the upper quartile of the
Guidelines range was justified in light of Neidinger’s criminal history and history
of noncompliance, his denial of responsibility, and his “ludicrous” theory of
defense, which the district court found utterly “incredible.”
Amid the full explanation, the district court made the offhand comment that
“[i]t’s been a difficult case. I—we went through two trials. There was the first jury
[that] couldn’t convict and didn’t convict on the evidence presented.” Yet the
district court stated twice that Neidinger’s decision to go to trial and testify had
nothing to do with the sentence determination. The district court simply “note[d]
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the fact that [Neidinger] went to trial,” which is not reversible error where, as here,
“the court base[d] its final decision on the facts of the case and the record as a
whole.” United States v. Rojas-Pedroza, 716 F.3d 1253, 1270 (9th Cir. 2013).
Nor was the sentence length substantively unreasonable. As explained
above, the district court did not consider Neidinger’s decision to go to trial when
calculating the sentence. And the district court explained that the upper-quartile
sentence was necessary to deter Neidinger and others from making false statements
on passport applications and to protect the public from Neidinger’s misdeeds,
concerns reasonably based in Neidinger’s non-trivial criminal history and history
of noncompliance. The sentence was substantively reasonable.
Lastly, the district court did not plainly err in imposing standard release
condition twelve, which requires him to notify anyone identified by his probation
officer of the risk he might pose to them. We have held this type of risk-
notification condition is not unconstitutionally vague. See United States v. Gibson,
998 F.3d 415, 423 (9th Cir. 2021).
AFFIRMED.
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