United States v. John Doe , 705 F.3d 1134 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 11-10067
Plaintiff-Appellee,
D.C. No.
v. 1:08-cr-00254-
LJO-1
JOHN DOE ,
Defendant-Appellant. OPINION
On Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted
November 7, 2012—San Francisco, California
Filed January 31, 2013
Before: Ferdinand F. Fernandez and Marsha S. Berzon,
Circuit Judges, and William E. Smith, District Judge.*
Opinion by Judge William E. Smith
*
The Honorable W illiam E. Smith, District Judge for the U.S. District
Court for the District of Rhode Island, sitting by designation.
2 UNITED STATES V . DOE
SUMMARY**
Criminal Law
The panel affirmed the district court in part and reversed
in part, vacated convictions on drug charges, and remanded
for further proceedings in a case in which the defendant
alleged errors relating to the public authority defense, Sixth
Amendment violations, discovery violations, and procedural
errors at sentencing.
The panel that the district court was correct in applying
Dixon v. United States, 548 U.S. 1 (2006), to the defendant’s
public authority defense, and thus that the district court’s
determination that the defendant bore the burden of proof by
a preponderance of the evidence was proper. For that reason,
the panel held that the defendant was not denied his Sixth
Amendment right to the assistance of counsel when the
district court prohibited him from arguing a different burden
and standard of proof during closing arguments. The panel
held that the district court did err when it failed to instruct the
jury at all on the proper burden and standard of proof for the
public authority defense, but that the error was not plain.
The panel held that the district court abused its discretion
in denying two discovery requests as overbroad and
immaterial. Because the record is unclear as to what would
have been produced if those requests had been granted and
what effect the production would have had on the outcome of
the trial, the panel vacated the conviction and remanded for
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V . DOE 3
either an evidentiary hearing or in camera review to further
address the discovery and Brady issues.
The panel held that the sentencing hearing contained
numerous procedural violations: the district judge failed to
accurately state the Sentencing Guidelines range at the onset,
never gave the parties the opportunity to argue for a sentence
they believe is appropriate, and failed to adequately address
the defendant’s objections to the presentence report, as
required by Fed. R. Crim. P. 32(i)(3)(B). The panel held
that the cumulative effect of the violations amounted to plain
error, requiring that the sentence be vacated.
COUNSEL
Carolyn M. Wiggin, Assistant Federal Defender, Sacramento,
California, for Defendant-Appellant.
Kathleen A. Servatius, Assistant U.S. Attorney, Fresno,
California for Plaintiff-Appellee.
4 UNITED STATES V . DOE
OPINION
WILLIAM E. SMITH, District Judge:
Defendant-Appellant John Doe1 appeals his conviction,
following a jury trial, of conspiracy to distribute
methamphetamine, conspiracy to distribute cocaine,
possession of methamphetamine with the intent to distribute,
and possession of cocaine with the intent to distribute. On
appeal, Doe raises a host of alleged errors which fall into four
general categories: errors relating to Doe’s public authority
defense, Sixth Amendment violations, discovery violations,
and procedural errors at Doe’s sentencing.
Regarding the alleged public authority errors, we hold
that the district court was correct in ruling that Dixon v.
United States, 548 U.S. 1 (2006), applies to Doe’s public
authority defense. Thus, Doe had the burden of establishing
the defense by a preponderance of the evidence, and it was
not error for the district court to refuse to instruct the jury
otherwise. While we find that the district court gave an
incomplete and therefore erroneous jury instruction on public
authority when it neglected to instruct the jury that Doe bore
this burden, Doe never raised the issue before the district
court, and the error does not rise to the level of plain error.
Accordingly, we affirm the district court with respect to all
alleged errors regarding Doe’s assertion of the public
authority defense.
1
Throughout this prosecution, Defendant-Appellant has been concerned
for his safety, and as a result, the pseudonym John Doe has been
substituted for his name. To further protect his identity, the names of all
officers, informants, and co-conspirators have also been omitted to the
extent possible.
UNITED STATES V . DOE 5
Doe’s second claim, which alleges a Sixth Amendment
violation, essentially raises the same argument as the alleged
public authority defense errors, just dressed up in different
clothes. For the same reasons as with regard to the public
authority defense, we hold that the district court did not
deprive Doe of his Sixth Amendment right to counsel when
it prevented him from arguing an incorrect burden of proof to
the jury during his closing argument.
The third category of errors claims discovery and Brady
violations. We hold that the district court abused its
discretion in denying Discovery Requests Five and Six as
overbroad and immaterial; however, the record is unclear as
to what, if anything, would have been produced if those
requests had been granted and what effect, if any, the
production would have had on the outcome of Doe’s trial.
Accordingly, we must vacate Doe’s conviction and remand to
the district court for further proceedings (either an evidentiary
hearing or in camera review) to further address these
discovery and Brady issues.
The fourth and final category of errors allege procedural
violations at sentencing. We agree with Doe that his
sentencing hearing contained several procedural violations
which cast doubt on the reasonableness of his ultimate
sentence. Consequently, assuming the evidentiary hearings
discussed above result in the reinstatement of Doe’s
conviction, his sentence is vacated and he must be
resentenced.
6 UNITED STATES V . DOE
Background
A
In early 2008, Doe, a resident of Mexico, contacted the
Federal Bureau of Investigation (FBI) regarding information
on drug-related activity. He first met with an agent on April
15, 2008. At this meeting, Doe described a cell, as well as
individuals, who were involved in trafficking narcotics
between Mexico and the United States. He provided
telephone numbers and offered to give the agent the addresses
and license plate numbers of these individuals. In exchange,
Doe wanted the FBI to allow him and his family to immigrate
to the United States and either be given new identities or be
placed in witness protection. The agent explained that Doe
was “putting the cart before the horse,” and while such
requests were sometimes granted, this occurred only after
long and successful records of cooperation with the FBI that
resulted in prosecutions and convictions.
Approximately one month after this initial meeting, the
two met again in a San Diego parking lot. At this meeting,
Doe repeated his request to come to the United States, but the
agent represented that Doe had not yet provided the
information requested in their initial meeting.2 Over the next
few months, Doe and the agent remained in contact, and the
agent began the process within the agency of qualifying Doe
as a potential confidential informant. At no point did the
2
Doe testified that he provided the agent with vehicle information,
license plate numbers, telephone numbers, and the name “Indio” - one of
the heads of a 500+ person narcotics cell. The agent testified that he had
no recollection of Doe providing this information.
UNITED STATES V . DOE 7
agent authorize Doe to engage in illegal activity either on his
own behalf or on the FBI’s behalf.
Meanwhile, a detective of the Fresno Police Department
was conducting a drug-trafficking investigation into an
individual known as “Colima.” As part of this investigation,
the detective and two informants were referred by Colima to
Doe. Doe told one of the informants that he would “be able
to get what you guys need.” On July 21, 2008, the detective
and the informants spoke on the telephone with Doe and
arranged a sale of twenty kilograms of cocaine; Doe advised
them not to use any names in future communications. The
next day, the detective met with Doe but no drug transactions
occurred. Later that afternoon, Doe called one of the
informants, telling him that he (Doe) could not get the
cocaine but he knew somebody in Dinuba (the “Dinuba
Contact”) who could get ten to twelve pounds of crystal
methamphetamine if the informant was interested. The
informant indicated his interest, so Doe placed the informant
in contact with the Dinuba Contact. Once the
methamphetamine deal was completed on July 25, 2008, the
Dinuba Contact was arrested and twelve pounds of
methamphetamine seized.
Three days later, on July 28, 2008, Doe again spoke with
one of the informants and told the informant that he could
now provide the cocaine in two ten-kilogram shipments. The
informant and the detective arranged for a car exchange with
Doe to complete the cocaine sale. When the prearranged
meeting time arrived, Doe, the detective, the informants, and
other associates of Doe were present. For reasons that are
unclear, the car exchange did not take place. Instead, one of
the informants and one of Doe’s associates traveled to an auto
body shop where the informant saw the cocaine. The two
8 UNITED STATES V . DOE
men then returned to the original meeting place, and Doe and
his associates were arrested. A subsequent search of the body
shop uncovered five kilograms of cocaine.
Immediately following his arrest, Doe told the detective
that he was an informant working with the FBI. The
detective asked if Doe was working with the FBI on this
specific case, and Doe said no. The detective nevertheless
followed up on Doe’s statement and contacted the FBI agent,
who told the detective that Doe was being developed as a
confidential informant but was not currently working for
them. The detective proceeded to complete the arrest and, on
August 7, 2008, the government filed the four-count
indictment against Doe.
B
In the lead-up to trial, Doe filed numerous discovery
requests and motions. The motion at issue in this appeal,
filed on March 20, 2009, asked the district court to order the
government to produce Rule 16 discovery and Brady v.
Maryland evidence. Specifically, Doe requested:
5. Any and all records or reports which
document any and all telephone numbers,
license plate numbers, or individuals,
provided or identified by [Doe] to FBI
[agents], as being associated, involved or
related to criminal activity; [“Request
Five”]
6. Any and all records, reports or calendars
which document the date of any meeting
or communication, or planned meeting or
UNITED STATES V . DOE 9
communication between [Doe] and FBI
[agents]; [“Request Six”]
Doe argued that Request Five was necessary to show that he
was predisposed to assist law enforcement and not to commit
the alleged acts; Request Six, meanwhile, was needed to
prepare and put forth an entrapment defense. The district
court denied these requests as overbroad, ruling that the
“Court cannot determine whether the requests do or do not
fall within the express words of Rule 16(a)(1)(E)(i).”
Prior to trial, Doe informed the court that he would be
presenting a public authority defense and requested the
following jury instruction:
If a defendant engages in conduct that
violates a criminal statute, in reliance on a
statement or act of a government official, with
the reasonable belief that the defendant is
acting as an authorized government agent to
assist in law enforcement activity, then the
defendant may not be convicted of violating
the criminal statute, because the requisite
intent is lacking. The government must prove
beyond a reasonable doubt that the defendant
did not have a reasonable belief that he was
acting as an authorized government agent to
assist in law enforcement activity at the time
of the offense charged in the indictment.
The government objected to this instruction, arguing that the
Supreme Court’s recent holding in Dixon v. United States
required Doe to prove his defense by a preponderance of the
evidence. The district court agreed, ruling that Dixon applied
10 UNITED STATES V . DOE
because the public authority defense would not negate any of
the elements of the charged crimes.
Trial began on October 26, 2009. The theme of Doe’s
defense was essentially “yes, I helped arrange these sales, but
I did so only to gain information to give to the FBI so my
family and I could move to America.” To support this
argument, Doe testified that on July 19, 2008, after the
informants approached him, he called the agent and told him
that they needed to meet as soon as possible because Doe had
information to relay. According to Doe, a meeting was
scheduled for either July 29 or July 30; he could not
remember exactly which date. The agent had no recollection
of this phone call, despite being presented with phone records
confirming an eighty-four second direct-connect call from
Doe to the agent on July 19, 2008. He also denied setting up
a meeting with Doe for either July 29 or 30. Following this
alleged phone conversation, Doe never contacted, or
attempted to contact, the agent again.
On October 29, 2012, at the close of evidence but prior to
closing arguments, the district judge gave the jury its final
instructions. The judge began by stating that the
“government has the burden of proving every element of the
charges beyond a reasonable doubt” and then proceeded to
define reasonable doubt. Regarding public authority, the
court adopted the government’s proposed instruction, telling
the jury that:
If a person engaged in conduct that
violated a criminal statute, in reliance on a
statement or act of a government official, with
a reasonable belief that the defendant is acting
as an authorized government agent to assist in
UNITED STATES V . DOE 11
law enforcement activity, then the defendant
may not be convicted of violating the criminal
statute.
Doe did not request that the district court instruct the jury that
Doe bore the burden of proof for the defense or that the
standard of proof was by a preponderance of the evidence.
Rather, before presenting his closing, Doe informed the court
that it was his intention to argue “that the government is
required to prove beyond a reasonable doubt that [Doe] was
not acting with the reasonable belief he was acting as an
authorized government agent.” The district court forbade this
line of argument, responding, “No, that’s not their
responsibility. . . . Their responsibility is only to prove the
case beyond a reasonable doubt as to the elements of the
crime.” Doe answered “okay.” The jury returned guilty
verdicts on all counts.
C
Almost one year later, on October 8, 2010, Doe moved
for a new trial, arguing newly discovered evidence and a
Brady violation. In the motion, Doe pointed out that he had
testified that he told the FBI agent about a drug trafficker
named “Indio.” Following Doe’s conviction, Doe reported,
“Indio” was arrested and accused of being a key member of
the Beltran Leyva cartel and trafficking methamphetamine
and other drugs between Mexico and the United States.
According to Doe, the investigation and arrest of “Indio”
should have been disclosed to him. The district court
disagreed and denied the motion on January 28, 2011, finding
that Doe never mentioned “Indio” in any request for
discovery and that, even if Doe’s requests had encompassed
information on “Indio,” the government’s position was that
12 UNITED STATES V . DOE
it did not have any information that Doe ever provided the
FBI with anything related to an “Indio.” The district court
therefore concluded that no evidence was “suppressed” and
no Brady violation occurred. It further held that “there is
nothing to suggest that this fact would have or could have
suggested to any trier of fact that it was reasonable for [Doe]
to somehow believe that it was all right [sic] to sell drugs
simply because an FBI agent told him that the defendant . . .
lacked specific information to be a valuable informant and
that a benefit would only be conferred upon him after a long
and productive relationship.”
D
In preparation for sentencing, a Presentence Investigation
Report (“PSR”) was prepared. The PSR grouped the four
convictions together, converted the methamphetamine and
cocaine weights to a marijuana equivalency weight, added the
weights together, and arrived at a total marijuana equivalence
weight of 106,040 kilograms. According to the United States
Sentencing Guidelines Manual (the “Guidelines”), Doe’s base
offense level was 38. The PSR recommended a two-level
increase under § 3B1.1(c) of the Guidelines because Doe
“made arrangements for the distribution of methamphetamine
. . .[,] utilized a co-conspirator in his distribution
activities. . . . [and] paid or gave this individual a small
portion of the profits for his efforts,” and was thus the
organizer of the criminal endeavor. The PSR also
recommended that Doe not receive a two-level reduction for
acceptance of responsibility under § 3E1.1(a) of the
Guidelines because he did not enter into a plea agreement.
Taking these adjustments into account, the PSR calculated
Doe’s total offense level to be 40. With a Category I
Criminal History and a total offense level of 40, Doe’s
UNITED STATES V . DOE 13
Guidelines range was between 292 and 365 months
imprisonment. The PSR recommended 292 months in prison,
sixty months of supervised release, and a $400 special
assessment.
Doe filed objections to the PSR, specifically finding fault
with the two-point organizer enhancement and the denial of
a two-point reduction for acceptance of responsibility. He
further argued that he was entitled to a four-point reduction
in the Base Offense Level for playing a mitigating role under
Guideline § 2D1.1(a)(5), a four-point reduction for being a
minimal participant under § 3B1.2(a), and a two-point
reduction for qualifying as a safety-valve candidate.
On January 28, 2011, the district court sentenced Doe.
The judge stated that “[t]he Court notes that the applicable
offense level is 38, Criminal History Category is I. Guideline
range is 292 to 365, with a Probation recommendation of 292
concurrently as to each of the four counts. The Court has
considered the 3553(a) factors.” Then, the judge questioned
the parties regarding the disparity between the PSR’s
recommendation and the eighty-four month sentence of Doe’s
co-defendant, the Dinuba Contact. The government
explained that the Dinuba Contact pleaded guilty, did not
recruit other individuals, and was not involved in the cocaine
transaction, and therefore received the acceptance of
responsibility and safety-valve reductions for which Doe did
not qualify. Doe disputed this characterization, arguing that
the Dinuba Contact, and not Doe, was the organizer. The
district court did not explicitly resolve this dispute. Instead,
the court changed topics and proceeded to question the parties
on Doe’s acceptance of responsibility objection, finding that
Doe was not entitled to the reduction. The judge then
adopted the PSR’s recommendation and sentenced Doe to
14 UNITED STATES V . DOE
concurrent terms of 292 months imprisonment on each count,
followed by a period of sixty months supervised release, and
a $400 special assessment.
Discussion
I. The Public Authority Defense
A district court’s allocation of the burden of proof is a
question of law reviewed de novo. United States v.
Hernandez-Franco, 189 F.3d 1151, 1157 (9th Cir. 1999)
(citing United States v. Meraz-Solomon, 3 F.3d 298, 299 (9th
Cir. 1993)). Whether a jury instruction misstates the law, an
element of the crime, or the burden of proof is similarly
subject to de novo review. United States v. McKittrick, 142
F.3d 1170, 1177 (9th Cir. 1998); United States v. Rubio-
Villareal, 927 F.2d 1495, 1500 (9th Cir. 1991). However,
when a defendant on appeal alleges an error with a jury
instruction but had neither requested the instruction be given
nor objected to its omission, the court reviews for plain error.
United States v. Bear, 439 F.3d 565, 568 (9th Cir. 2006).
A
A criminal defendant is entitled to jury instructions
related to a defense theory so long as there is “any foundation
in the evidence.” United States v. Burt, 410 F.3d 1100, 1103
(9th Cir. 2005). This entitlement is not unlimited, however,
and any given instruction must be supported by law. See,
e.g., United States v. Johnson, 459 F.3d 990, 992 (9th Cir.
2006). Doe’s proposed jury instruction - that the government
bore the burden of disproving public authority beyond a
reasonable doubt - was not supported by law, and thus it was
not error for the district court to refuse the instruction.
UNITED STATES V . DOE 15
This court has held that “[i]f a defense negates an element
of the crime, rather than mitigates culpability once guilt is
proven, it is unconstitutional to put the burden of proof on the
defendant.” Walker v. Endell, 850 F.2d 470, 472 (9th Cir.
1987); see also Patterson v. New York, 432 U.S. 197, 210
(1977). Not every affirmative defense, however, negates an
element of the crime. See Patterson, 432 U.S. at 210 (“Proof
of the nonexistence of all affirmative defenses has never been
constitutionally required . . . .”). In Dixon v. United States,
548 U.S. 1 (2006), the Supreme Court addressed head-on the
intersection of affirmative defenses and the allocation of the
burden of proof.
In Dixon, the defendant was indicted for receiving a
firearm while under indictment and for making false
statements in connection with the acquisition of a firearm; at
trial, she put forth a duress defense. 548 U.S. at 3, 4. The
district court instructed the jury that Dixon had “‘the burden
of proof to establish the defense of duress by a preponderance
of the evidence.’” Id. at 5 (quoting the record appendix).
Dixon was found guilty on all counts and appealed, arguing
that the jury was incorrectly instructed on the burden of
proof. Id. at 4, 5. Specifically, Dixon argued that the
government was required to disprove her duress defense
beyond a reasonable doubt because the duress exerted on
Dixon prevented her from freely choosing to commit the acts
in question, and thus she lacked the necessary mens rea. Id.
at 4, 6. Because this would negate an element of the crime,
she reasoned, the burden rested on the government to
disprove the defense. Id. at 6. The Supreme Court disagreed.
Id. at 8.
The Court explained that Congress has moved away from
the general/specific intent dichotomy in favor of a more
16 UNITED STATES V . DOE
defined hierarchy of culpability. Id. at 7. When a crime
requires that a defendant act “knowingly,” all that the
government must prove is “‘knowledge of the facts that
constitute the offense.’” Id. at 5 (quoting Bryan v. United
States, 524 U.S. 184, 193 (1998)). Thus, regardless of
whether Dixon’s will was overborne by duress, she still knew
she was making false statements and receiving a firearm
while under indictment. Id. at 6. Proof of this was sufficient
to support the conviction because while Dixon’s defense
may excuse conduct that would otherwise by
punishable, [] the existence of duress
normally does not controvert any of the
elements of the offense itself. . . . Like the
defense of necessity, the defense of duress
does not negate a defendant’s criminal state of
mind when the applicable offense requires a
defendant to have acted knowingly or
willfully; instead, it allows the defendant to
“avoid liability . . . because coercive
conditions or necessity negates a conclusion
of guilt even though the necessary mens rea
was present.”
Id. at 6-7 (quoting United States v. Bailey, 444 U.S. 394, 402
(1980)).
The Supreme Court emphasized that affirmative defenses
have always been treated this way. It explained that “at
common law, the burden of proving ‘affirmative defenses -
indeed, “all . . . circumstances of justification, excuse or
alleviation” - rested on the defendant.’” Id. at 8 (quoting
Patterson, 432 U.S. at 202 (quoting 4 W. Blackstone,
Commentaries *201)). In the absence of Congressional
UNITED STATES V . DOE 17
action to the contrary, therefore, “it is up to the federal courts
to effectuate the affirmative defense of duress as Congress
‘may have contemplated’ it in an offense-specific context.”
Id. at 17 (internal citation omitted). The Court concluded that
“as will usually be the case, given the long-established
common-law rule . . . Congress intended the petitioner to bear
the burden of proving the defense of duress by a
preponderance of the evidence.” Id.
B
The question of whether Dixon applies to affirmative
defenses other than duress is a matter of first impression in
the Ninth Circuit. The Seventh Circuit, in a case very similar
to this one, has found that Dixon applied to the public
authority defense. See United States v. Jumah, 493 F.3d 868
(7th Cir. 2007). In Jumah, the defendant was charged with
“knowing possession of a listed chemical, knowing, or having
reasonable cause to believe, that the chemical would be used
to manufacture a controlled substance . . . .” Id. at 870.
Applying Dixon, the Jumah court explained that
The public authority defense is an
affirmative defense of excuse derived from
the common law. It is grounded in the
principle that prosecuting an individual who
acts in reliance upon official statements that
one’s conduct is lawful offends due process.
Like the statute involved in Dixon [sic], the
required mental state for an offense under 21
U.S.C. § 841(c)(2) is that the defendant act
“knowingly.” Generally, the prosecution
meets its burden with respect to this mental
state when it proves beyond a reasonable
18 UNITED STATES V . DOE
doubt that the defendant had knowledge of the
facts constituting the offense. As noted
above, common law affirmative defenses of
excuse do not controvert this mental state.
Thus, the public authority defense, as an
affirmative defense of excuse, does not
controvert an essential element of the offense
with which Mr. Jumah was charged and does
not, of its own force, place the burden on the
Government to disprove the defense beyond a
reasonable doubt in order to prove his guilt.
At common law, the burden of proof for
all affirmative defenses of justification and
excuse rests on the defendant. Because the
public authority defense is an affirmative
defense based on excuse, we must conclude
that Congress intended the burden to rest on
the defendant to prove the defense by a
preponderance of the evidence.
Id. at 874-75 (internal citations and footnote omitted). The
Sixth Circuit has also commented that a “defendant bears the
burden of proving the affirmative public authority defense.”
United States v. Theunick, 651 F.3d 578, 590 (6th Cir. 2011).
We agree with the conclusions reached by the Sixth and
Seventh Circuits. The indictment charged Doe with two
counts of “knowingly and intentionally conspir[ing] and
agree[ing] with other persons” to distribute Schedule II
controlled substances and two counts of “knowingly and
intentionally possess[ing] with intent to distribute, and
aid[ing] and abet[ting] the possession with intent to
distribute” Schedule II controlled substances. Like Dixon,
UNITED STATES V . DOE 19
each offense accused Doe of “knowingly and intentionally”
performing the acts charged, and thus all that the government
needed to prove beyond a reasonable doubt was that Doe had
knowledge of the facts constituting the charges. See Dixon,
548 U.S. at 5; Bryan, 524 U.S. at 192, 193. These facts
include possessing the contraband and arranging with other
drug dealers to sell it to others. See 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), 846; 18 U.S.C. § 2.
Doe’s defense does not negate his knowledge of any of
these facts. Doe did not argue that he did not know he
possessed the five kilograms of cocaine or the five kilograms
of methamphetamine; nor did he argue that he did not intend
to distribute those drugs to local drug dealers. He also never
denied conspiring or agreeing with his co-defendant drug
dealers to possess and distribute the contraband in the United
States. To the contrary, though he disagreed over some of the
details, Doe conceded all of these facts, acknowledging that
he knew he was conducting these illegal acts, and readily
admitted that he did so intentionally. Doe’s defense was not
lack of knowledge that these transactions were occurring or
lack of intent for the deals to go through. Rather, Doe’s
defense was that he believed he was working for the FBI and
was conducting these admittedly illegal actions to obtain
information which he could then parlay into safe passage into
the United States for himself and his family. The problem
with Doe’s argument is that even if the jury had accepted his
public authority defense, no element of any of the charges
would have been negated. Instead, Doe’s defense would have
simply “excuse[d] conduct that would otherwise be
punishable.” Dixon, 548 U.S. at 6. Thus, like Dixon’s duress
defense, Doe’s common-law affirmative defense of public
authority must be proven by a preponderance of the evidence.
See id. at 17; Patterson, 432 U.S. at 200-01. The district
20 UNITED STATES V . DOE
court was therefore correct in applying Dixon to Doe’s public
authority defense and requiring Doe, and not the government,
to bear the burden of proof.
Doe relies on a number of pre-Dixon decisions of this
court for the proposition that the public authority defense
“negates criminal intent” for offenses requiring that the
defendant act “knowingly,” and is therefore an element which
must be disproved by the government beyond a reasonable
doubt. See, e.g., United States v. Davis, 76 F.3d 311, 314 (9th
Cir. 1996); United States v. Mason, 902 F.2d 1434, 1439-40
(9th Cir. 1990). In this line of cases, we held that if a jury
found that a defendant violated criminal law “while acting as
an agent for the law enforcement authority, or even if he had
a mistaken, but reasonable, belief that he was so acting, then
the jury would have to exonerate him.” Mason, 902 F.2d at
1439-40. The reasoning underlying those holdings was that,
if the defendant acted with public authority, then “the jury
could not have found the necessary intent to convict of the
crime.” Id. at 1440 (construing United States v. Ramirez, 710
F.2d 535, 543-44 (9th Cir. 1983)).
However, these cases were all decided before Dixon.
Dixon’s reasoning - that Congress has moved away from the
specific/general intent dichotomy and that crimes requiring
that a defendant act “knowingly” simply require the
government to prove knowledge of the facts constituting the
offense - changed the legal landscape in this area as applied
to crimes with a “knowingly” mens rea. To the extent that
our prior decisions contradict Dixon, their holdings are
irreconcilable with Dixon and are no longer good law. See
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en
banc) (explaining that a circuit panel can overrule prior
decisions when “the relevant court of last resort [has]
UNITED STATES V . DOE 21
undercut the theory or reasoning underlying the prior circuit
precedent in such a way that the cases are clearly
irreconcilable”). Although Dixon involved duress, not public
authority, its logic equally applies to both. See id. (“We hold
that the issues decided by the higher court need not be
identical in order to be controlling.”).
This is not to suggest that there is a per se rule that the
public authority defense must always be proven by the
defendant by a preponderance of the evidence. To the
contrary, the burden of proof for the public authority defense
depends on both the statute at issue and the facts of the
specific case. Dixon held only that
when a statute is silent on the question of
affirmative defenses and when the affirmative
defense does not negate an essential element
of the offense, we must presume that the
common law rule that places the burden of
persuasion on the defendant reflects the intent
of Congress.
Jumah, 493 F.3d at 873 (citations omitted). Accordingly,
when confronted with an affirmative defense, the court must
always look closely to the statutory language of the specific
offense charged and determine
(1) whether the public authority defense
negates an element of the charged offense that
the Government must prove beyond a
reasonable doubt and (2) whether Congress
22 UNITED STATES V . DOE
intended to alter the common law rules
governing the public authority defense [in the
statute at issue].
Id.
Here, however, Doe was charged with federal possession
and conspiracy offenses for which Congress has adopted a
“knowingly” mens rea requirement, as it did in Dixon. See
21 U.S.C. § 841(a)(1) (“knowingly or intentionally”); United
States v. Reed, 575 F.3d 900, 923 (9th Cir. 2009) (explaining
that to prove drug conspiracy, the government must prove
“the intent to commit the underlying offense” (internal
quotation marks omitted)). The statutes do not contain any
indication of Congressional intent to alter the common law
public authority defense as to these offenses. Given that
Congressional silence, under Dixon, “we must presume that
the common law rule that places the burden of persuasion on
the defendant reflects the intent of Congress.” Jumah, 493
F.3d at 873.
Nor, in Doe’s case, did his proposed version of the public
authority defense negate any other element of the offenses for
which he was charged. For example, one element of drug
conspiracy is conspiratorial agreement, i.e, “an agreement to
accomplish an illegal objective.” Reed, 575 F.3d at 923.
There may be some circumstances under which a version of
the public authority defense might negate that element of
conspiracy - for instance, if a defendant’s defense was that he
was setting up a sting and never intended the drug transaction
to be consummated. Here, however, Doe’s defense was not
that he did not intend for the drug transactions to go through,
but rather that he did intend them to go through so that he
could provide information about them to the FBI.
UNITED STATES V . DOE 23
C
Doe makes the alternative argument that, even assuming
Dixon does apply and Doe did bear the burden of proof by a
preponderance of evidence, the district court committed
reversible error by not instructing the jury on the burden of
proof for the public authority defense. This issue is not
preserved, however, as Doe neither objected to the district
court’s failure to instruct the jury on the burden of proof nor
did he request the jury be so instructed.3 As a result, we
review for plain error. United States v. Kessi, 868 F.2d 1097,
1102 (9th Cir. 1989).
Plain error occurs when there is (1) an error; (2) that is
plain; (3) that affects substantial rights; and, if (1)-(3) are
met, (4) seriously affects the fairness, integrity, or public
reputation of the proceeding. Bear, 439 F.3d at 568 (citing
Johnson v. United States, 520 U.S. 461, 466-67 (1997)). An
error affects a defendant’s substantial rights when it “affect[s]
the outcome of the proceedings.” Id. at 569 (quoting United
States v. Fuchs, 218 F.3d 957, 962 (9th Cir. 2000)).
As discussed above, the district court properly concluded
that Dixon applies to Doe’s public authority defense, and thus
Doe bore the burden of proof by a preponderance of the
evidence. The court’s failure to inform the jury of this
allocation was undoubtedly an error - one that we believe was
3
Doe did object to the district court’s decision not to instruct that the
government bore the burden beyond a reasonable doubt, but that is a
different objection and is not enough to preserve the current issue. See
United States v. Kessi, 868 F.2d 1097, 1102 (9th Cir. 1989) (objecting to
an instruction generally and to a different part of that instruction
specifically does not satisfy preservation of an objection to another part of
that instruction).
24 UNITED STATES V . DOE
obvious, and thus “plain.” See United States v. Olano, 507
U.S. 725, 732 (1993). However, there is nothing in the record
to suggest that the outcome would have been any different
had the jury been properly instructed. The government
presented a very strong case against Doe, while Doe
presented an extremely weak defense. Even if one were to
assume the jury believed everything he said, Doe’s reliance
on public authority was shaky at best, because he never
suggested that he was specifically authorized or directed to
carry out these particular crimes, or, indeed, any crimes at all.
Moreover, it is entirely likely that the trial judge’s error
actually helped Doe. The only reference to the burden of
proof in the jury instructions was at the very beginning of the
instructions, where the district court stated, “The defendant is
presumed to be innocent and does not have to testify or
present any evidence to prove innocence. The government
has the burden of proving every element of the charges
beyond a reasonable doubt.” When the judge instructed on
public authority, all he said was that “[i]f a person engaged in
conduct that violated a criminal statute, in reliance on a
statement or act of a government official, with a reasonable
belief that the defendant is acting as an authorized
government agent to assist in law enforcement activity, then
the defendant may not be convicted of violating the criminal
statute.” Nothing in this latter instruction spoke of the
standard or the burden of proof. Taking the instructions as a
whole, and presuming, as we must, that the jurors followed
the instructions as given, see United States v. Heredia, 483
F.3d 913, 923 (9th Cir. 2007), it is reasonable to conclude
that the jury (incorrectly) perceived that the government
retained the burden of disproving Doe’s public authority
defense beyond a reasonable doubt. Thus, if anything, this
error resulted in Doe receiving the instruction he fought for
UNITED STATES V . DOE 25
in an indirect manner.4 See Jumah, 493 F.3d at 878
(explaining that where the court failed to inform the jury that
the defendant bore the burden of proof for the public
authority defense, “a jury faithfully following the
instructions, as given by the district court, would have
understood, in all likelihood, that the Government had the
burden of disproving the [public authority] affirmative
defense . . . . In short, Mr. Jumah received, in all likelihood,
an unwarranted benefit from the court’s instructions.”).
Considering the weakness of Doe’s affirmative defense,
the strength of the government’s case, and the potential
benefit Doe received from the error, we cannot say that this
error was prejudicial and affected the jury’s verdict. Because
Doe’s substantial rights were not affected, we do not reach
the fourth prong of the plain error analysis. Thus, the district
court’s error in failing to instruct the jury on the burden of
proof for the public authority defense was not plain error, and
reversal is not warranted.
II. The Sixth Amendment Claim
We review whether a defendant was denied his or her
Sixth Amendment right to the assistance of counsel de novo.
United States v. Moore, 159 F.3d 1154, 1158 (9th Cir. 1998).
However, we must give “great latitude” and “broad
discretion” to the presiding judge when reviewing the lower
court’s decision to limit and control closing summations.
Herring v. New York, 422 U.S. 853, 862 (1975).
4
It is entirely possible that Doe recognized this, and thus his failure to
request the instruction was a tactical decision. W e have no explanation,
however, for why the government did not request the instruction be given.
26 UNITED STATES V . DOE
A
Doe alleges that the district court deprived him of his
Sixth Amendment right to counsel by preventing him from
arguing during closing argument that the government had the
burden of disproving his public authority defense beyond a
reasonable doubt. We disagree.
The Sixth Amendment guarantees that “[i]n all criminal
prosecutions, the accused shall . . . have the Assistance of
Counsel for his defence.” U.S. Const. amend. VI. As part of
this essential Constitutional right, “there can be no
restrictions upon the function of counsel in defending a
criminal prosecution in accord with the traditions of the
adversary factfinding process that has been constitutionalized
in the Sixth and Fourteenth Amendments.” Herring, 422
U.S. at 857. Chief among these traditions is the ability of
defense counsel “to make a closing summation to the jury.”
Id. at 858, 862. Importantly, this right is not unlimited, and
a court may limit closing arguments to ensure that they “do[]
not stray unduly from the mark, or otherwise impede the fair
and orderly conduct of the trial.” Id. at 862; see also Conde
v. Henry, 198 F.3d 734, 739 (9th Cir. 2000).
Doe’s argument is a derivative of his argument regarding
the allocation of the burden of proof for the public authority
defense discussed above. The district court did not forbid
Doe from making a closing argument or from presenting his
public authority theory; it merely prevented him from arguing
incorrect statements of law, something that is well within the
court’s discretion. See Herring, 422 U.S. at 860 (“The
Constitutional right of a defendant to be heard through
counsel necessarily includes his right to have his counsel
make a proper argument on the evidence and the applicable
UNITED STATES V . DOE 27
law in his favor . . . .” (quoting Yopps v. State, 178 A.2d 879,
881 (Md. 1962)) (emphasis added)). Indeed, any other ruling
would have allowed Doe to circumvent the district court’s
ruling on the applicability of Dixon to the public authority
defense. The district court, therefore, did not err in
prohibiting Doe from arguing that the government needed to
disprove public authority beyond a reasonable doubt.
III. The Discovery & Brady Claims
The scope of discovery is within the district court’s
discretion, so we review discovery rulings for an abuse of
discretion. United States v. Clegg, 740 F.2d 16, 18 (9th Cir.
1984). To find an abuse of discretion, we must “have a
definite and firm conviction that the district court committed
a clear error of judgment.” United States v. Chon, 210 F.3d
990, 994 (9th Cir. 2000). The alleged violations of Brady v.
Maryland, 373 U.S. 83 (1963), however, are reviewed de
novo. United States v. Stever, 603 F.3d 747, 752 (9th Cir.
2010).
A
Rule 16 of the Federal Rules of Criminal Procedure grants
defendants a broad right to discovery, providing that “[u]pon
a defendant’s request, the government must permit the
defendant to inspect and to copy or photograph . . .
documents . . . within the government’s possession, custody,
or control . . . [that are] material to preparing the
defense . . . .” Fed. R. Crim. P. 16(a)(1)(E)(i). To receive
discovery under this Rule, the defendant “‘must make a
threshold showing of materiality, which requires a
presentation of facts which would tend to show that the
Government is in possession of information helpful to the
28 UNITED STATES V . DOE
defense.’” Stever, 603 F.3d at 752 (quoting United States v.
Santiago, 46 F.3d 885, 894 (9th Cir. 1995)); United States v.
Little, 753 F.2d 1420, 1445 (9th Cir. 1985). Assuming a
discovery violation occurred, reversal is only appropriate if
the defendant shows “a likelihood ‘that the verdict would
have been different had the government complied with the
discovery rules.’” Chon, 210 F.3d at 994-95 (quoting United
States v. de Cruz, 82 F.3d 856, 866 (9th Cir. 1996)).
Here, Doe argues the district court abused its discretion in
denying two of Doe’s discovery requests - Request Five and
Request Six. In Request Five, Doe sought “[a]ny and all
records or reports which document any and all telephone
numbers, license plate numbers, or individuals, provided or
identified by [Doe] to FBI [agents], as being associated,
involved or related to criminal activity.” According to Doe,
this information was important and necessary “evidence that
[Doe] provided the FBI information regarding criminal
activity and is not predisposed to commit the acts alleged, but
rather, he was predisposed to assist law enforcement.” In
Request Six, Doe requested “[a]ny and all records, reports or
calendars which document the date of any meeting or
communication, or planned meeting or communication,
between [Doe] and FBI [agents].” Doe contended that this
information was “material to preparing, and necessary to put
forth, an entrapment defense.” The district court denied both
requests because “they are overbroad. The Court [could not]
determine whether the requests do or do not fall within the
express words of Rule 16(a)(1)(E)(i).”
It is unclear to us how the district court came to this
conclusion. The requests are not overbroad at all, but rather
well tailored, explaining the specific information Doe was
requesting and the types of documents that would likely
UNITED STATES V . DOE 29
contain the information he sought. Considering the FBI
agents only met and/or spoke with Doe on a handful of
occasions, the time frame of the requests is similarly well-
known. Unless Doe had knowledge of specific FBI
documents he could point to by name and date of creation, a
scenario we highly doubt existed, Doe’s requests could not
have been any more pointed. Thus, the district court’s
determination that these requests were overbroad was a clear
error of judgment.
Moreover, Doe consistently argued throughout the
prosecution that he believed his actions were sanctioned by
the FBI. The documents he requested - any records or reports
containing information Doe relayed to the FBI regarding
illegal activity and any FBI calendars or other documents
showing planned meetings with Doe - would undoubtedly
have been helpful to his defense. The documents, if they
existed, could have been used by Doe to help establish his
state of mind. They could have been used by the jury in their
determination of whether the public authority defense was
established, or whether Doe’s belief that he was working with
the FBI was reasonable. They most certainly could have been
used to impeach the FBI agent at trial. And, at the very least,
they could have helped to establish Doe’s credibility. The list
of potential uses of these documents goes on and on. For the
district court to say that it could not determine whether the
requests fell under Rule 16(a)(1)(E)(i) is to say that it is
unclear if the documents were “material to preparing the
defense.” This conclusion, however, is not correct, especially
considering that “[e]vidence is relevant if it has ‘any tendency
to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.’” Stever, 603 F.3d at
753 (quoting Fed. R. Evid. 401).
30 UNITED STATES V . DOE
The government makes two arguments which warrant a
response. First, it contends that Doe had the opportunity to
follow-up on these requests but did not. Specifically,
following the court’s denial of Doe’s motion, Doe told the
court he would file a new motion seeking “more specific
information” but never did, despite filing additional unrelated
discovery requests. Also, Doe never inquired into the
existence of this information when examining the FBI agent
at trial. While the government is correct that Doe could have,
and perhaps should have, done these things, the failure to do
so is irrelevant to the issue before us: whether the district
court abused its discretion in denying Request Five and
Request Six.
Second, the government argues that Request Six sought
information to prepare an entrapment defense, a defense
which is very different from the public authority defense Doe
put forth at trial. Considering Doe abandoned this defense,
the government avers, the judge could not have abused his
discretion in finding the request did not satisfy Rule 16.
Again, the government misses the point. At the time of the
request, Doe was preparing an entrapment defense. The
question is whether the information would have helped Doe
in this endeavor, not whether the information would
ultimately prove an entrapment defense. Even if the
documents caused Doe to completely abandon the entrapment
defense and take an entirely different path, the documents
would still have been “material to preparing the defense”
under Rule 16(a)(1)(E)(i).
The district court’s decision to deny Requests Five and
Six was a clear error of judgment, and thus an abuse of
discretion. See Stever, 603 F.3d at 752; Chon, 210 F.3d at
994.
UNITED STATES V . DOE 31
B
Even though the district court abused its discretion, Doe’s
conviction will not be reversed unless he can show that he
would have been acquitted had the judge granted the requests
and the materials been disclosed. Chon, 210 F.3d at 994-95.
This is impossible for Doe to do, since the documents have
yet to be turned over, if they even exist at all.5 Thus, we must
vacate Doe’s conviction and remand to the district court for
further proceedings on “whether the Government’s
documents in fact contain, or would have led to, information
that might have altered the verdict.” See Stever, 603 F.3d at
754-55 (citing United States v. Alvarez, 358 F.3d 1194, 1209
(9th Cir. 2004)). If the district court determines that the
documents sought in Requests Five and Six exist and contain
“probative, relevant, and material information” that “probably
would have changed the outcome” of the trial, the district
court must grant Doe a new trial. See Alvarez, 358 F.3d at
1209 (citing Pennsylvania v. Ritchie, 480 U.S. 39, 58 (1987);
United States v. Strifler, 851 F.2d 1197, 1202 (9th Cir.
1988)). On the other hand, if the district court determines
that the documents do not exist, or that, even if they do exist,
the failure to disclose them was harmless, the district court
shall reinstate Doe’s conviction. See id.
5
At the hearing on Doe’s motion for a new trial, the district court stated
that there was no violation because the “government’s position then, and
continues to be, [was] that they had no information at all that [Doe] did
provide information about anyone named Indio.” This position is relevant,
but not determinative, with respect to Request Five because the request
sought all information Doe provided to the FBI, which necessarily
includes, but is not limited to, the “Indio” information. However, with
respect to Doe’s Brady claim related to “Indio,” we agree with the district
court and find no violation.
32 UNITED STATES V . DOE
C
Doe also argues that the government failed to discharge
its obligations under Brady v. Maryland, 373 U.S. 83 (1963),
and its progeny, which recognize the constitutional duty of
the government to disclose exculpatory evidence to a
defendant if it is “material” to guilt or punishment. Id. at 87-
88; see also Paradis v. Arave, 240 F.3d 1169, 1176 (9th Cir.
2001). To establish a Brady violation, three elements must be
satisfied: (1) the evidence must be favorable to the accused;
(2) the evidence must have been suppressed by the State,
either willfully or inadvertently; and (3) there must be
prejudice as a result of the suppression. United States v.
Kohring, 637 F.3d 895, 901 (9th Cir. 2011).
Suppressed evidence is considered prejudicial (or
material) if “‘there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different.’” Paradis, 240 F.3d
at 1176 (quoting United States v. Bagley, 473 U.S. 667, 682
(1985)). A “reasonable probability” exists when confidence
in the outcome is undermined. Id. Material evidence
includes exculpatory evidence and impeachment evidence.
Kohring, 637 F.3d at 903; Paradis, 240 F.3d at 1179.
Here, Doe’s Brady allegations are based on the same
materials as his discovery complaints. As with those
violations, it is impossible for us to evaluate Doe’s claim
because we do not know what the documents say, if they exist
at all. As a result, we will adopt a similar approach and
remand to the district court for further proceedings “to
determine whether the government ha[s] discharged its
obligation to provide the defense with material exculpatory
evidence, including impeachment evidence, within its
UNITED STATES V . DOE 33
possession.” Alvarez, 358 F.3d at 1209 (citing United States
v. Bernal-Obeso, 989 F.2d 331, 335-36 (9th Cir. 1993)).
While this directive seems repetitive of the evidentiary
hearing described above, there is one important difference:
the standard of review if the documents exist. To grant Doe
a new trial on the discovery violations, the district court must
find a “likelihood ‘that the verdict would have been
different’” had the documents been disclosed. See Chon, 210
F.3d at 994-95 (quoting de Cruz, 82 F.3d at 866). To grant
Doe a new trial on a Brady violation, however, the district
court must merely determine that the documents, if favorable
to Doe, undermine its confidence in the outcome and that
there is a “reasonable probability” of a different result. See
Bagley, 473 U.S. at 682; Paradis, 240 F.3d at 1176. This is
a much relaxed standard, and thus it is possible that Doe
could be granted a new trial on Brady but not discovery
grounds. See Stever, 603 F.3d at 755 n.2.
IV. The Sentence6
Sentencing decisions and procedures are normally
reviewed for an abuse of discretion. United States v. Carty,
520 F.3d 984, 993 (9th Cir. 2008). However, when the
defendant does not object to the sentencing procedures at the
time of sentencing, as is the case here, we review for plain
error. United States v. Valencia-Barragan, 608 F.3d 1103,
1108 (9th Cir. 2010). On appeal, only an unreasonable
sentence - either procedurally or substantively - will be set
aside. Carty, 520 F.3d at 993 (citing Rita v. United States,
6
Assuming the district court finds no prejudicial Brady or discovery
violations and Doe’s conviction is reinstated, the issue of the procedural
reasonableness of Doe’s sentence would still remain. To avoid
unnecessary repetition and relitigation, we address those allegations now.
34 UNITED STATES V . DOE
551 U.S. 338, 341 (2007)); see also Gall v. United States, 552
U.S. 38, 46 (2007).
A
In Carty, this court provided the district courts with a
step-by-step process to follow at sentencing proceedings. 520
F.3d at 990-94. Sentencing is “to begin by determining the
applicable Guidelines range. . . . [which] must be calculated
correctly.” Id. at 991. Once this “starting point” is
established, the parties must be given a chance to argue for an
appropriate sentence. Id. Then, in evaluating the parties’
arguments, the court must “consider the § 3553(a) factors.”
Id. While it is not necessary for the district court to “tick off”
each of the factors, “when a party raises a specific,
nonfrivolous argument tethered to a relevant § 3553(a) factor
. . . [,] the judge should normally explain why he accepts or
rejects the party’s position.” Id. at 992-93. Once the
sentence is decided, the judge must explain the sentence
“sufficiently to permit meaningful appellate review.” Id. at
992.
In addition to the procedures laid out in Carty, sentencing
courts are bound by Rule 32 of the Federal Rules of Criminal
Procedure. Under Rule 32, the sentencing court “must - for
any disputed portion of the presentence report or other
controverted matter - rule on the dispute or determine that a
ruling is unnecessary either because the matter will not affect
sentencing, or because the court will not consider the matter
in sentencing.” Fed. R. Crim. P. 32(i)(3)(B). The Ninth
Circuit has mandated “strict compliance” with Rule 32,
explaining that the rulings must be “‘express’ or ‘explicit.’”
United States v. Houston, 217 F.3d 1204, 1208 (9th Cir.
UNITED STATES V . DOE 35
2000) (citing United States v. Karterman, 60 F.3d 576, 583
(9th Cir. 1995)).
B
Here, the district court did not follow this guidance, and
the result was a sentencing hearing which contained
numerous procedural violations, the cumulative effect of
which renders Doe’s sentence procedurally unreasonable.7
First, the district judge stated that “the applicable offense
level is 38, Criminal History Category is I. Guideline range
is 292 to 365.” This statement was incorrect. According to
the PSR, Doe’s base offense level was thirty-eight and his
total offense level was forty. Under the Sentencing
Guidelines, the range for an offense level of forty is 292 to
365 months; the range for an offense level of thirty-eight,
meanwhile, is 235 to 293 months. See U.S. Sentencing
Guidelines Manual ch. 5, pt. A (2010). While the
government attempts to gloss over this error and characterize
it as a simple misstatement of the offense level, we are not so
sure. That is definitely one possibility, in which case the
stated Guidelines range is correct. Equally plausible,
however, is that the district judge had decided to adopt Doe’s
objection to the PSR and not impose the two-point organizer
enhancement.8 In this latter alternative, the district court
properly stated the offense level but misstated the Guidelines
range. There is no way to know with certainty where the
7
Doe does not challenge the substantive reasonableness of his sentence,
and we need not address it here.
8
As we explain below, this possibility is not far-fetched, considering
the weakness of the evidence supporting the organizer enhancement.
36 UNITED STATES V . DOE
error occurred. Either way, the Guidelines are the “starting
point and the initial benchmark” of sentencing, Kimbrough v.
United States, 552 U.S. 85, 108 (2007) (quoting Gall, 552
U.S. at 49), and the failure accurately to state the Guidelines
range at the onset derailed the sentencing proceeding before
it even began.9
Second, the district judge never gave the parties the
opportunity to “argue for a sentence they believe is
appropriate.” Carty, 520 F.3d at 991. After stating the
inconsistent offense level and Guidelines range, the judge
stated he had “some questions” and proceeded to inquire into
the issue of sentence disparity between Doe and the Dinuba
Contact and the issue of Doe’s acceptance of responsibility.
Though Doe may disagree with the judge’s ultimate findings,
there can be no real dispute that the district court adequately
covered these two topics. The problem, however, is the judge
never gave the parties an opportunity to argue the
significance of these rulings; neither Doe nor the government
was able to stand before the court and recommended a
sentence.10 Thus, we are left without meaningful debate
between the parties as to what sentence the judge should have
9
Indeed, the district judge sentenced Doe to the bottom of the
applicable Guidelines range. If it was his intent to impose the minimum
sentence possible without varying from the Guidelines or granting any
downward adjustments, and he meant to apply an offense level of thirty-
eight, then this single misstatement resulted in Doe being mistakenly
sentenced to an additional fifty-seven months imprisonment.
10
Of course, Carty only requires that the parties be given a chance to
argue for a specific sentence. 520 F.3d at 991. No procedural error would
occur if the sentencing judge asked the parties if they wished to make an
argument and they declined. The same would be true if they stated on the
record that they wished to rest on the presentence papers.
UNITED STATES V . DOE 37
imposed. Without this debate and on-the-record
recommendations, it is impossible for us to conduct an
appropriate appellate review and determine whether Doe’s
sentence is reasonable. See Carty, 520 F.3d at 992, 993.
Finally, the district judge seemed to ignore Rule 32 of the
Federal Rules of Criminal Procedure and this court’s mandate
of “strict” compliance. Doe objected to numerous aspects of
the PSR, including probation’s two-level increase for being
an organizer under § 3B1.1(c) of the Guidelines and its
recommendation to deny a two-level reduction for the
acceptance of responsibility under § 3E1.1(a) of the
Guidelines. In addition to these objections, Doe argued for
further Guidelines reductions. Specifically, he requested a
four-point reduction in the Base Offense Level for playing a
mitigating role under § 2D1.1(a)(5), a four-point reduction for
being a minimal participant under § 3B1.2(a), and a two-point
safety-valve reduction under §§ 2D1.1(b)(11) and 5C1.2(a).11
All together, his objections and requested reductions create a
potential fourteen-point swing with the offense level
recommended in the PSR. In practical terms, Doe believed
his sentence should have been between sixty-three to seventy-
eight months, or approximately twenty years less than the
sentence imposed as a result of these Guideline range
adjustments, or alternatively as a variance from the Guideline
range given the totality of the circumstances presented. See
U.S. Sentencing Guidelines Manual ch 5, pt A (2010).
11
In his brief, Doe claimed he also argued for a downward variance due
to his age, his role as a parent, his vocational training, and his decision to
provide information to the FBI. However, nothing in the record supports
Doe’s claim that he made these arguments, and unlike the objections and
requests discussed above, the government did not concede that these
arguments were made. As a result, we do not consider them here, though
Doe would be free to raise them if he is resentenced.
38 UNITED STATES V . DOE
Yet, with the exception of the acceptance of responsibility
issue, none of these matters were adequately addressed. The
government makes a strong argument that, based on the
parties’ answers to the district court’s questions in relation to
the co-defendant’s sentence disparity, the district court
implicitly rejected Doe’s objections regarding being an
organizer and minimal participant and for playing a
mitigating role. The government’s argument fails, however,
because Rule 32(i)(3)(B) requires that “for any disputed
portion of the presentence report or other controverted
matter,” the court must “rule on the dispute or determine that
a ruling is unnecessary.” And, this court has interpreted this
to mean that all Rule 32 findings “must be ‘express’ or
‘explicit.’” Houston, 217 F.3d at 1208 (quoting Karterman,
60 F.3d at 583). The district court did not do that here, and
thus there is no way for us to know how these objections and
factual issues affected Doe’s sentence, or if they affected it at
all. See United States v. Carter, 219 F.3d 863, 868 (9th Cir.
2000) (“Because the district court did not explicitly resolve
those factual disputes, we have no way of knowing which
disputed statements, if any, the district court relied on in
making its findings.”). Quite simply, even if the district court
did implicitly reject Doe’s objections, his implicit ruling was
insufficient to comply with this court’s interpretation of Rule
32. See id. (“These statements clearly indicate that the
district court disbelieved some of Carter’s statements made
during the sentencing hearing. But they fall short of an
explicit resolution of factual disputes relevant to the role
UNITED STATES V . DOE 39
enhancement, or an explicit indication that the court was not
relying on the disputed factual statements.”).12
This inadequacy is even more pronounced due to the
weak support for any implicit findings the court may have
made. The record portrays Doe as a middle-man arranging
sales between the informants, acting as drug distributors for
the imported contraband, and the Mexican drug cartels. Even
the informants testified that Doe facilitated their introduction
to the Dinuba Contact so they could then buy the
methamphetamine from him. The question during trial was
never over Doe’s role, but rather whether he was arranging
the drug transactions for his own profit and self-interest or as
an FBI informant attempting to obtain information in
exchange for the right to immigrate to the United States.
Based on the record before us, there is inadequate support for
12
The government argued that the district court was not required to
make Rule 32 findings because Doe’s objections were all legal and not
factual. The government is correct that legal objections do not require
explicit findings. See, e.g., United States v. Grajeda, 581 F.3d 1186, 1188
(9th Cir. 2009). However, Doe’s objections are clearly factual; the
distinctions between the objections at issue here and the objections in the
cases the government relies on are readily apparent. Compare United
States v. Molina, 934 F.2d 1440, 1452 (9th Cir. 1991) (holding that the
sentencing judge’s decision on whether a defendant is a minimal or minor
participant “rests heavily on the facts”), with Grajeda, 581 F.3d at 1189
(“Grajeda did not controvert the accuracy of the PSR or argue that he had
not been convicted . . . . Rather, he argued that . . . the government was
required to prove the prior convictions beyond a reasonable doubt . . . .”),
and United States v. Stoterau, 524 F.3d 988, 1012 (9th Cir. 2008)
(“Stoterau did not deny that the police reports contained the information
alleged in the PSR or that the information was factually inaccurate.
Instead, he argued . . . a general evidentiary legal challenge . . . .”).
Moreover, the government’s own arguments to support its claim rely on
specific facts from trial, from the PSR, and from the sentencing hearing -
the same facts Doe is disputing.
40 UNITED STATES V . DOE
the two-point leader and organizer enhancement, especially
when one considers the impact of that finding.13 If this
enhancement is to be imposed, the judge must make made
more explicit findings.
C
Having established that procedural violations occurred,
the final question is whether these violations amount to plain
error requiring vacatur despite Doe’s failure to object to the
procedures during sentencing. We hold that they do. As
discussed in Part I.C, supra, for there to be plain error, there
must be: (1) an error; (2) that is plain; (3) that affects
substantial rights; and (4) seriously affects the fairness,
integrity, or public reputation of the proceeding. Johnson,
520 U.S. at 466-67 (quoting Olano, 507 U.S. at 732).
Here, the procedural violations constitute material errors.
See, e.g., Carty, 520 F.3d at 993 (“It would be procedural
error for a district court . . . to calculate incorrectly . . . the
Guidelines range.”); see also United States v. Showalter, 569
F.3d 1150, 1159 (9th Cir. 2009); United States v. Ingham, 486
F.3d 1068, 1074 (9th Cir. 2007) (“It is well settled in this
circuit that when the district court fails to make the required
Rule 32 findings or determinations at the time of sentencing,
we must vacate the sentence and remand for resentencing.”)
(quoting Carter, 219 F.3d at 866). It is also clear that these
errors affected Doe’s substantial rights and seriously affected
the fairness of the proceedings in as much as Doe’s various
objections and arguments, all of which could substantially
13
An organizer enhancement automatically forecloses safety-valve
eligibility. See U.S. Sentencing Guidelines Manual § 5C1.2(a)(4) (2010).
UNITED STATES V . DOE 41
affect his ultimate sentence, were never properly considered
or ruled upon.
Therefore, we hold that the cumulative effect of the
procedural violations that took place during Doe’s sentencing
hearing amounts to plain error, and his sentence must be
vacated. See, e.g., Showalter, 569 F.3d at 1159; Ingham, 468
F.3d at 1074.
Conclusion
The district court was correct in applying Dixon v. United
States to Doe’s public authority defense, and thus the district
court’s determination that Doe bore the burden of proof by a
preponderance of the evidence was proper. For that reason,
Doe was not denied his Sixth Amendment right to the
assistance of counsel when the district court prohibited him
from arguing a different burden and standard of proof during
closing arguments. The district court did, however, err when
it failed to instruct the jury at all on the proper burden and
standard of proof for the public authority defense. But,
because Doe never raised this argument in the district court,
it is subject to plain error analysis, and the error does not
satisfy this high standard.
With respect to the alleged discovery violations, the
district judge abused his discretion in denying Requests Five
and Six, and the government’s failure to disclose this
information may have been a violation of Brady v. Maryland.
However, we do not know what information those documents
contain, or if they exist at all, and thus we are unable to
determine the effect of the failure to disclose. Thus, Doe’s
conviction is vacated and remanded for proceedings
consistent with this opinion.
42 UNITED STATES V . DOE
Finally, assuming the proceedings on the discovery and
Brady issues result in the reinstatement of Doe’s conviction,
his sentence is to be vacated and he is to be resentenced in
accordance with the procedures laid out in Carty and this
opinion.
The district court is AFFIRMED IN PART and
REVERSED IN PART. Doe’s conviction is hereby
VACATED and REMANDED for further proceedings not
inconsistent with this opinion.