Petition for Writ of Certiorari — William Phillip Neidinger, Petitioner v. United States

Cass: 22-10118,08/14/2023, ID: 12773163, DktEntry: 5S-1, Page 1 of 5

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No.

FILED

AUG 15 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

22-10118

D.C.No.

3:20-cr-00009-HDM-CLB-l

v.

WILLIAM PHILLIP NEIDINGER, AKA

William Joseph Beck III,

MEMORANDUM*

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 Ncidingcr 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.

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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

“[ijt’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 risknotification condition is not unconstitutionally vague. See United States v. Gibson,

998 F.3d 415, 423 (9th Cir. 2021).

AFFIRMED.

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UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

SEP 25 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WILLIAM PHILLIP NEIDINGER, AKA

William Joseph Beck III,

No.

22-10118

D.C. No.

3:20-cr-00009-HDM-CLB-l

District of Nevada,

Reno

ORDER

Defendant-Appellant.

Before: WARDLAW and M. SMITH, Circuit Judges, and RAYES,* District

Judge.

The panel has unanimously voted to deny the petition for panel rehearing

and the petition for rehearing en banc. The full court has been advised of the

petition for rehearing en banc and no judge has requested a vote on whether to

rehear the matter en banc. Fed. R. App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are

DENIED.

The Honorable Douglas L. Rayes, United States District Judge for the

District of Arizona, sitting by designation.