Petition for Writ of Certiorari — Larson v. United States

Supreme Court, U.S.

FILED

97.28 4 AUG 1 4 1997

NO. 9 4rticg-of tHE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1997

JAMES L. LARSON,

Petitioner,

¥.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

A. Lee Petersen, Esq.

LAW OFFICES OF

A. LEE PETERSEN, P.C.

P.O. Box 940284

Houston, AK 99694

(907) 495-6239

Attorney for Petitioner

— 4

RECEIVED |

AUG 14 139!

OFFICE OF THE CLERK

SUPREME COURT, U.S, a

i

QUESTIONS PRESENTED

1. Did Larson's conviction deny

him due process of law because his conduct

was not within the range for criminal

liability under 18 U.S.C. §1001?

2. Did the exclusion of the best

extrinsic evidence of bias of a major

prosecution witness violate Larson's rights

guaranteed by the Fifth and Sixth Amendments

to the Constitution?

ii

TABLE OF CONTENTS

Questions Presented ........ .. el

meee @E GONCONTCO. . 2 2s es st ew wo ew ew tl lw hb

Demee GE AUENOFICi“es. . . . += «© © « « hdl

I. Petition for Writ of Certiorari ... .1

II. Statement of Jurisdiction ......1

III. Applicable Statutes and Rules... .2

Iv. Statement of the Case. ....... .3

V. Argument Stating Reasons for Granting

PEE Ss 6 @ « « « « «© 6 « # « « © YY

A. Section 1001 of 18 U.S.C. Does

Not Give Fair Warning That

Conduct Such As Larson's May

Incur Criminal Liability ..... 19

B. The Best Evidence of Bias of a

Major Prosecution Witness Was

POO ee oe ee ee ee eee”

a ee

APPENDIX A

APPENDIX B

iii

TABLE OF AUTHORITIES

Cases

WwW Vv. V S e, 475 U.S. 673,

106 S.Ct. 1431, 89 L.Ed.2d 674

oi ee ee ae ea

Taylor v. Illinois, 484 U.S. 400, 108

S.Ct. 646, 98 L.Ed.2d 798 (1988) ... 28

United States v. Boone, 951 F.2d 1526

(90m Cie, 2964). 4. «0-0 3 + ow we s 8

United States v. Frazier, 53 F.3d 1105

(iGue Car, 2OPer «it et le %ehUhFmhUhM COS 24

United States v. Gaudin, U.S. _,

115 S.Ct. 2310, 123 L.Ed.2d 444

ler 60k 64S © wee eee ae ee eee

United States v. Lanier, U.S. __,

157 S.2t. BBRP 14087) «4 « «os aw « 29; 26

United States v. Oren, 893 F.2d 1057

(Sem Gav. 3908) 6 a es ts ke we es ve UO

United States v. Petullo, 709 F.2d

1178 (7th Cir, aed 3% © el we ES cee 25

United States v. Ross, 77 F.3d 1525

(Fee Cee, Bel 4 ss we ee eh ee ew OO

Washington v. Texas, 399 U.S. 14,

93 S.Ct. 1920, 18 L.Ed.2d 1019 (1067) . 27

Constitutional Provisions

Patce Ane... 2 « 8 te tlw CU CURD, DP

I. PETITION FOR WRIT OF CERTIORARI

The petitioner respectfully prays that

a writ of certiorari issue to review the

judgment of the Ninth Circuit Court of

Appeals filed May 19, 1997, Case No. 96-

30226, reprinted as Appendix A hereto, in

order to review the standards for

determining whether particular conduct falls

within the range for criminal liability

under 18 U.S.C. § 1001 and to review the

scope of admissibility of extrinsic evidence

of bias of major prosecution witnesses.

II. STATEMENT OF JURISDICTION

This Court has jurisdiction pursuant to

28 U.S.C. § 1254(1). This petition is being

timely filed in accordance with Rule 13.1 of

this court.

2

III. APPLICABLE CONSTITUTIONAL

PROVISIONS AND STATUTES

Relevant portions of constitutional

provisions and statutes pertaining to this

petition are as follows:

Fifth Amendment to U.8. Constitution

No person shall be . . . deprived

of life, liberty, or property

without due process of law;

Sixth Amendment to U.8. Constitution

In all criminal prosecutions, the

accused shall enjoy the right

. to have compulsory process for

obtaining witnesses in his favor,

18 U.8.C. § 371

If two or more persons conspire

either to commit any offense

against the United States, or to

defraud the United States, or any

agency thereof in any manner or

for any purpose, and one or more

of such persons do any act to

effect the object of the

conspiracy, each shall be fined

not more than $10,000 or

imprisoned not more than five

years, or both.

18 U.8.C. § 1001

Whoever, in any matter

within the jurisdiction of any

department or agency of the

United States knowingly and

willfully .. . makes or uses any

false writing or document knowing

the same to contain any false,

fictitious or fraudulent

statement or entry, shall be

fined not more than $10,000 or

imprisoned not more than five

years, or both.

IV. STATEMENT OF THE CASE

A. Statement of Facts

The indictment in this case, in Count

I, charged a conspiracy of James Richard

Hand, James L. Larson and Marilyn Larson to

commit offenses against the United States,

including transporting, selling, etc.

illegally obtained halibut' and to make and

use a false writing or document in violation

‘In violation of 16 U.S.C. § 773(e)

(a)(5) and regulations thereunder and 16

U.S.C. §§3372(a) (1) and 3372(d) (3) (A) (ii).

4

of 18 U.S.C. § 1001 (ER 1-7).* Count II

charged the making and using of a false

writing or document, to-wit: a fish ticket

made out for Marilyn Larson, in violation of

18 U.S.C. § 1001. Id.

At the time of trial, Larson was 42

years of age, a high school graduate with

two years of college, married to Marilyn

since 1985, with one step-daughter and three

grandchildren (Hand ER 362-63). Due to a

serious stroke suffered by Larson's father

and two heart attacks suffered by his

mother, the Larsons rented a house in

‘This is a reference to the Excerpt of

the Record submitted to the court of appeals

by Larson. References to the Excerpt

submitted by Hand are "Hand ER" and by the

government are "SER."

5

Seattle adjacent to his parents' home and

Marilyn spends most of the time there, but

James still fishes out of Juneau, Alaska.

Id.

Larson has been a full time commercial

fisherman since 1979 (Hand ER 364). Prior

to that, he was a special assistant to the

Chairman of the Commercial Fisheries Entry

Commission for five years, and before that

he was a boat carpenter. Id. He also has a

contract with the State Department of

Environmental Conservation (DEC) to do oil

spill clean-up work (Hand ER 365).

Both James and Marilyn Larson were

licensed for various fisheries activities

during 1991-93, the period involved in this

case (Hand ER 84-86). Larson had vessel

licenses for the "Last Unicorn" and the

"Rocking Moon" (Hand ER 367-66), issued by

the International Halibut Commission (Hand

6

ER 360), and he held a seafood processing

facility permit issued by the DEC. Id.

In 1991, after other fishing

activities, Larson fished the halibut

opening in May with the "Last Unicorn" with

his brother and another person as crew (Hand

ER 370-71). He sold his catch to Alaska

Seafood Company, of which Dick Hand is the

principal owner and manager (Hand ER 371).

Larson also fished the halibut opening

and sold his catch to Hand's company in May

1992. He got involved in filleting fish

because he fishes in an area infested with

sand fleas, avoided by other fishermen (Hand

ER 374-75). By filleting and trimming the

fish to get rid of the bad parts, he could

end up with a good product (Hand ER 376).

Larson enjoys an excellent reputation as

a responsible, honest, hardworking, moral

and law-abiding citizen among people who

4

know him in the community (ER 25-40).

Hand and his wife are 65 percent owners

of Alaska Seafood Company, which they

founded in 1965 (Hand ER 219). He is

president and his wife is office manager

(Hand ER 217). The company has a small

plant, occupying about 3,500 square feet,

plus office space (Hand ER 220), and the

company employs from 5 to 27 people,

depending on the season (Hand ER 223). It

does canring, filleting, packaging and

smoking of various types of fish, including

shrimp, halibut, salmon and crabs (Hand ER

223-24).

Larson and Hand became acquainted

because they were both commercial fishermen

and their boats were kept at the same docks,

and they became good friends (Hand ER 221,

35). Hand has, at times, entrusted Larson

with a key to his plant, and because Larson

8

is licensed to do processing on his vessel,

Hand has contracted with Larson to bring in

fish which have been fully or _ semi-

processed, because it saves man hours and

space in Hand's plant and is a mutually

beneficial arrangement, providing a good

quality product (Hand ER 231-35).

When fish are delivered by a fisherman

to a processing plant, it is the processor's

duty to make out a fish ticket. Each year,

the Department of Fish and Game issues a

metal tag with identification to each

processor and a card to each fisherman to

permit him to fish. The permit is embossed

with the fisherman's name, social security

number and vessel license number. When fish

tickets are prepared, the processor's metal

tag is imprinted on them along with the

information from the fisherman's permit

(Hand ER 226-27). A fish ticket is in

9

quadruplicate, with a white original and

three colored copies. One copy goes to Fish

and Game, one to the fisherman, and the

processor files the original with all other

tickets for the particular fishery and files

the remaining copy in a file he maintains

for each fisherman who sells to him (Hand ER

227-29).

Hand's practice is to have a worksheet

made out at the dock when fish are delivered

and to use the worksheet information in

preparing fish tickets (Hand ER 292-93).

Sometimes Hand makes mistakes and has to

void a fish ticket and issue a correct one.

When a fish ticket is prepared, a check is

attached to be given to the fisherman along

with his copy of the ticket (Hand ER 293-

94).

Hand refers to the wurksheets as

"weightsheets" or "scalesheets" or

10

"tallysheets" (Hand ER 252-54). It is

traditional in the halibut fishery to

deduct 10 percent of the weight for heads

and guts and to deduct about 2 percent for

ice and slime (Hand ER 255-56). Fish

tickets have no space for calculating

weights of fillets, so an extrapolation is

made on the basis that the fillets are about

60 percent of the weight of round fish and

the fish ticket reflects what the fish would

have weighed if they had not been filleted

(Hand ER 256-57).

Larson's fish tickets reflect

deliveries from the "Last Unicorn" of 7,475

pounds of headed and gutted halibut from the

May 1991 opening (Hand ER 266-67) and 9,721

pounds from the spring 1992 opening (Hand ER

274). In 1992, Hand had a market for fresh

halibut fillets, so he contracted with

Larson to fillet his catch (Hand ER 271).

11

Larson filleted most of those fish on his

boat in its stall in Harris Harbor, and his

wife and brother transported them to Alaska

\

Seafood to be weighed and stored in the

cooler (Hand ER 387-88). Hand was fishing

himself, so he left instructions with his

daughter for the unloading, weighing and

storing of the fillets in the cooler (Hand

ER 271-72). The next morning, Hand

discovered that the cooler had not been

turned on (Hand ER 272-73). Hand and Larson

determined the fillets were not in a

marketable condition, so they put them ina

freezer van (Hand ER 271, 277). They

decided to take the fish out in small

quantities, thaw them and reprocess them

over a period of months, in slack times

(Hand ER 278). From March to June, 1993,

Larson removed the fish a couple of boxes at

a time, took them to his boat, allowed them

12

to thaw, removed the skin and trimmed the

fillets, and Hand kept a ledger of the

weights of these reconstituted fillets (Hand

ER 391-92).

In June 1993, Larson fished the halibut

opening, as usual in the "Last Unicorn"

towing the "Rocking Moon" loaded with gear

and halibut totes behind, and his crew was

Randy Rice (Hand ER 393-95). Larson

filleted some of the fish and put them in

totes on the "Rocking Moon" (Hand ER 295-

96). Upon returning to the harbor, they

unloaded the fish from the "Last Unicorn"

and the filleted fish and weighed them; then

Larson went to Harris Harbor, tied up and

worked into the night filleting the fish

that were left on the "Rocking Moon" and

then delivered the fillets to Alaska Seafood

Company, weighed them and recorded the

weights on a small sheet of paper and put it

13

in the top right-hand drawer of Hand's desk,

as they had agreed (Hand ER 398-400). It

being late, no one was at the plant, except

one other fisherman. Id.

Hand fished that halibut opening in a

different location from Larson, and he

chartered a plane to pick him up from the

boat so he could travel by commercial

airline to Northern California to attend his

daughter's wedding (Hand ER 205, 283, 286).

He was absent from Alaska from June 11 to

June 14, 1993 (Hand ER 285).

Hand is the only person at Alaska

Seafood authorized to imprint fish tickets

and he intended to do that immediately after

returning from his daughter's wedding (Hand

ER 225, 287). He left instructions for the

worksheets from the halibut deliveries to be

put in his desk drawer (Hand ER 283-85).

Hand had been informed by a staff

14

member before he went to his office the

morning of June 15, 1993 that State Trooper

Steven Arlow had visited during his absence,

gone through his desk and taken the original

worksheets reflecting halibut deliveries

(Hand ER 288). There was a stack of copies

of the worksheets, but the tallysheet for

Larson's fillets was not included and it has

never been found (Hand ER 288-89) .° The

work sheet for Larson's first delivery was

there, so Hand made out a ticket for 2,916

pounds of headed and gutted halibut (Hand ER

295), but Hand knew the fillets had been

delivered and he had no record of the

*A motion to dismiss for failure to

preserve exculpatory evidence was filed

because Arlow visited the plant on a Sunday

afternoon when only a new employee was there

and he seized numerous documents, allowing

the employee to copy the worksheets, but he

left no inventory of what he took, but the

motion was denied (CR 69, 74).

15

weights (Hand ER 296). He also knew that he

was required to make fish tickets for all

deliveries in a timely manner. Id. Unable

to think of anything better, as_= an

approximation, Hand used the weights of the

reconstituted fillets Larson had done during

the spring, which had been on the 1992 fish

ticket, and he made out the fish ticket for

the "Rocking Moon" in Marilyn Larson's name,

and he made checks to go with the two fish

tickets (Hand ER 296-97) .°

When Marilyn Larson visited the plant

later that day, because her husband was out

crabbing, the fish tickets and checks were

there waiting (Hand ER 297). She brought

‘The fish ticket in the name of Marilyn

Larson is the "false writing or document"

referred to in both counts of the

indictment.

16

with her a note’ from her husband. Upon

comparing the fish tickets with the note,

Marilyn said the tickets did not appear to

be correct and that they should be reviewed

by her husband (Hand ER 8, 299). Hand gave

her the checks, but retained the fish

tickets, which he set aside on his desk, so

he could resolve the matter with Larson and

make a correct fish ticket and void the

incorrect ones (Hand ER 8, 300-01). The

other fish tickets in the stack were taken

over to the bookkeeper for entry into the

computer and the copies were distributed in

the usual way (Hand ER 300). The Larson

tickets were the only ones remaining on

Hand's desk with all copies intact (Hand ER

301). But Hand never had an opportunity to

void the incorrect Larson fish tickets and

"The contents of the note will be

quoted infra.

EEO

17

issue a correct one, because Trooper Arlow

appeared with a search warrant and seized

the Larson fish tickets along with all of

Hand's records (Hand ER 302)

One of the principal Prosecution

witnesses was Joey Isturis, who had worked

as plant foreman for Alaska Seafood until

late 1992 (Hand ER 129-30). Upon being

investigated for illegal taking and selling

of fish, which he processed after hours in

Hand's plant in Hand's absence, Isturis

eventually admitted limited illegal activity

and the agents gave him a choice of being a

witness against Hand and the company or

being a defendant (Hand ER 141, 145, 147).

After that, Isturis told the agents that

Larson had taken and processed Halibut out

of season (Hand ER 145-47, 160). In the

trial Isturis testified that he believed he

was potentially a defendant, but the agents

18

had told him that it would "depend on your

level of cooperation" (Hand ER 159).

B. Proceedings

The indictment was returned on June 20,

1995 charging as previously described (ER 1-

7). All three defendants pleaded not guilty

(CR 29).

At trial, the jury returned verdicts of

guilty on all charges as to all three

defendants (Hand ER 455-56). All three

defendants filed motions for acquittal (CR

103-5). Marilyn Larson's motion was

granted, but Larson's and Hand's motions

were denied (Hand ER 71-74).

Larson was sentenced to five months of

imprisonment and five months of home

confinement and then two years of supervised

release (ER 41-44). Sun tipentia 3: Larson

has served his imprisonment.

The convictions have been affirmed by

19

the court of appeals. See Appendix A.

: V. ARGUMENT STATING REASONS FOR

GRANTING THE WRIT

A. Section 1001 of 18 U.8.C. Does

Not Give Fair Warning That

Conduct Such As Larson's May

Incur Criminal Liability

Wen) OEDITE eS caf Sk wh ae S

Both Counts of the indictment required

proof beyond a reasonable doubt of five

essential elements of 18 U.S.C. § 1001: a

statement, falsity, materiality, specific

intent, and federal agency jurisdiction.

United States v. Boone, 951 F.2d 1526, 1544

(9th Cir. 1991).

In United States v. Lanier, __ U.S.

___, 117 S.Ct. 1219, 1224-25 (1997), this

| court, in explaining the principle that due

process requires that no man should be held

criminally responsible for conduct which he

could not reasonably understand to be

proscribed, referred to what Justice Holmes

spoke of as "fair warning ... in language

20

that the common world will understand, of

what the law intends to do if a certain line

is passed. To make the warning fair, so far

as possible the line should be clear."

(Internal citation omitted). This court

explained:

There are three related manifest-

ations of the fair warning

requirement. First, the vague-

ness doctrine bars enforcement of

"a statute which either forbids

or requires the doing of an act

in terms so vague that men of

common intelligence must necess-

arily guess at its meaning and

differ as to its application."

.. Second, as a sort of "junior

version of the vagueness

doctrine," wae the canon of

strict construction of criminal

statutes, or rule of lenity,

ensures fair warning by so

resolving ambiguity in a criminal

statute as to apply it only to

conduct clearly covered. soe

Third, although clarity at the

requisite level may be supplied

by judicial gloss on an otherwise

uncertain statute, o=% due

process bars courts from applying

a novel construction of a

criminal statute to conduct that

neither the statute nor any prior

decision has fairly disclosed to

21

be within its scope, ...

Larson's conduct pertaining the fish

ticket in Marilyn Larson's name, the alleged

false writing or document, was to send his

wife to Hand with a note which stated:

Dick: Please give Marilyn a fish

ticket to reflect my total

halibut delivery poundage. This

should include forty-four hundred

~ pounds of fillets and twenty-nine

eighty-seven pounds of heads off

fish. Please convert this all to

heads-off fish on the fish

ticket. I also have credit

coming for 24 pounds prawns, 75

pounds cod fillets. My debits

include two one-thousand dollar

advances and miscellaneous bait.

- Thanks, Jim.

(Emphasis added.) (SER 10). When Marilyn

arrived with the note, Hand already had, not

"a" fish ticket, but two fish tickets made

out and checks to go with them: one in

Larson's name for the “Last Unicorn" for

2,916 pounds (Hand ER 295), and one in

Marilyn's name for the "Rocking Moon" for

22

6,053 pounds (SER 12). Not only cid neither

of the fish tickets reflect Larson's "total"

catch, as he requested in the note, both of

them together did not add up to his "total"

catch, which, after converting the fillets

to the equivalent of heads off fish,

amounted 10,320 pounds,° compared to 8,969

pounds, the total of the two fish tickets

prepared by Hand. Marilyn signed her

husband's name to the one and her own to the

other, but then told Hand they did not

appear to be correct. In granting her

motion for acquittal, the district court

recognized this and stated that’ Hand

"promised to double check it. Before a new

‘Larson's total catch was usually in

this range. As previously shown, his 1992

fish ticket for the "Last Unicorn" was for

9,721 pounds.

23

fish ticket could be prepared, the ticket

was seized pursuant to a search warrant"

(Hand ER 74). Thus, the court recognized

that the fish ticket on which the charges

were based was a draft which was set aside

to be corrected after Hand could confer with

Larson, but that did not occur and Larson

never saw it, because it was seized. Larson

argued for acquittal because he did not make

the fish ticket and it was never "used."

The fish ticket not only was never submitted

to a department or agency of the United

States; it was not submitted to anyone; it

was not even filed. ;

Section 1001 does not warn that

criminal liability may attach for holding an

incorrect writing or document until it can

be corrected. To convict on the basis of

the fish ticket in this case is equivalent

to convicting a person of a violation on the

24

basis on an unspoken thought, about which §

1001 also does not warn. Many years ago

James Orwell warned about the "thought

police" in 1984, but most people seem to

think that threat has never materialized.

But for Larson, it did.

Other than from Orwell, there has never

been a warning that criminal liability may

attach for conduct such as_ Larson's.

Section 1001 gives no such warning to a man

of "common intelligence." Nor can any prior

judicial decision be found providing such a

warning. The courts previously have

required that liability is incurred on the

basis of a false writing only after it has

been submitted to someone, or at least

placed ina file. United States v. Frazier,

53 F.3d 1105, 1115 (10th Cir. 1995)

(conviction based on documents being placed

by the defendant in a file in the office in

|

25

which he worked, knowing that the Department

of Labor had jurisdiction over the files,

which were subject to audit); United States

Vv. oss, 77 F.3d 1525, 1544-45 (7th Cir.

1996) (use of a document to deceive a private

company which had a part in decisions by a

government agency about the disbursement of

federal funds); United States v. Oren, 893

F.2d 1057, 1064 (9th Cir. 1990) (false letter

given to appraiser of land which the

National Park Service was authorized to

purchase).

The court of appeals cites United

States v. Petullo, 709 F.2d 1178, 1180 (7th

Cir. 1983), in which the city government

discovered the fraud before the _ false

information reached the federal government.

But the distinction between that case and

this case is that the false document was

submitted to someone. The multiple copies

26

of the fish ticket were entered intact into

evidence at trial. The officer who seized

the fish ticket had the opportunity to

contradict Hand's testimony that he had

segregated this fish ticket from the others,

the multiple copies of which were separated

and put into the process of distribution,

but this one was kept on his desk. There

was no evidence to the contrary, and the

district court so held when it acquitted

Marilyn Larson, so there was no question for

the jury to consider.

Thus, neither the statute nor any prior

decision gives warning that conduct such as

Larson's is proscribed. They do not warn

that an erroneous document set aside for

correction is a "statement" within § 1001.

They do not warn that such a document would

have a natural tendency to influence a

decision-making body to which it is

27

addressed (materiality). United States v.

Gaudin, -8.8..... , 138 8.Ce. 23130, 2313,

123 L.Ed.2d 444 (1995). They do not warn

that making a mistake and wanting to correct

it is the specific intent required by §

1001. (Larson did not even see _ the

erroneous fish ticket and it did not reflect

what he requested in his note.) And they do

not warn that erroneous drafts or thoughts

are within the jurisdiction of a government

agency or department.

B. The Best Evidence of Bias of a

Major Prosecution Witness Was

Excluded

The right of an accused to present

witnesses in his defense is guaranteed by

the due process clause of the Fifth Amend-

ment to the Constitution, Washington v.

Texas, 388 U.S. 14, 19, 93 S.Ct. 1920, 1923,

18 L.Ed.2d 1019 (1967), and the compulsory

process clause of the Sixth Amendment.

Taylor v. Illinois, 484 U.S. 400, 408, 108

S.Ct. 646, 653, 98 L.Ed.2d 798 (1988).

Reversal is mandated unless error in denying

these rights is harmless beyond a reasonable

doubt. elawa v. Van s , 475 U.S.

673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d

674 (1984).

During the trial, the defense presented

Lili M. Knightlinger as a witness (Hand ER

340 et seg.). She testified that she had

moved in and lived with Joey Isturis for a

period of about three months in the late

summer and early fall of 1991, and again for

a longer period of time in 1992. Before

there was any objection to her testimony,

she had said she had met Isturis through

drugs and she left him due to domestic

violence.

Upon objection, the defendants urged

that Knightlinger's testimony would be

|

29

offered to show bias, interest and motive on

the part of Isturis. The defense was

allowed to make an offer of proof out of the

presence of the jury. Knightlinger

testified about Isturis getting calls at all

times of the day and night about picking up

and making deliveries of illegally taken

fish. Between September and November, 1991,

Isturis received at least twenty such calls

and she went with him about six times and on

some occasions she saw him pick up fish from

boats and take them after hours to Alaska

Seafood and process them when Hand was not

there. She went crabbing with Isturis and

he would keep all the crabs that came up

even if they were under legal size, and he

wouid process them and sell them. She also

had bank records of Isturis which would show

he had a lot more money than he earned

legally. But this evidence was excluded by

30

the court and the jury did not hear it.

Isturis was the only witness to testify

as to some of the accusations in the

conspiracy charge, such as alleged illegal

fishing in 1991 (Hand ER 139-42). At

sentencing the court commented, "I do not

find that Isturis' testimony otherwise lacks

credibility. Indeed, I believe him and his

testimony apart from those estimates to be

reasonable" (Hand ER 467). If the court

believed Isturis' testimony, it may be

inferred that the jury probably did also.

This indicates that the defense had a need

for stronger impeachment evidence than was

heard by the jury. Knightlinger could have

provided evidence of much more extensive

illegal conduct than Isturis admitted,

thereby giving him strong motivation to be

helpful to the prosecution, since he had

been told that what would happen to him

on

would depend on his "level of cooperation."

The court of appeals recognized that

the defense was entitled to introduce

extrinsic evidence of bias, but since the

fact that Isturis was testifying to gain

favor of the government had already been

brought out, Knightlinger's testimony was

unnecessary. See, Appendix at A9.

But the evidence Knightlinger could

have presented was much stronger than any

evidence which was admitted, showing much

stronger motivation on the part of Isturis

to say whatever would help the case against

Hand and Larson, than could be shown by any

other evidence. The right to compulsory

process is illusory if the process is used

to get the witness who can present the best

evidence into court and then the witness is

not allowed to testify.

32

VI. CONCLUSION

The court is urged to grant the writ

and, upon hearing the case, to reverse the

convictions.

Respectfully submitted the z.. day of

August, 1997.

LAW OFFICES OF A. LEE PETERSEN, P.C.

Attorneys for Petitioner

By arr VA

"A. Lee Petersen |

P.O. Box 940284

Houston, AK 99694

(907) 495-6239

ian a aac an te A Dor

een ies

arte et

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

z

1@)

Vv. 96-30224

JAMES RICHARD HAND, D.C. No. CR

A95-057-JKS

Defendant-Appellant

UNITED STATES OF AMERICA,

No. 96-30226

Plaintiff-Appellee,

D.C. No. CR

Vv. A95-057-JKS

JAMES L. LARSON, ,

MEMORANDUM

Defendant-Appellant.

ee ee ee ee ee ee ee ee ee ee ee

Appeal from the United States District Court

for the District of Alaska

James M. Fitzgerald, District Judge,

Presiding

‘This disposition is not appropriate

for publication and may not be cited to or

by the courts of this circuit except as

provided by 9th Cir. R. 36-3.

A2

Argued and Submitted

April 11, 1997--Seattle, Washington

Filed May, 19, 1997

Before: WRIGHT, REINHARDT and THOMAS,

Circuit Judges

James Hand and James Larson were

convicted of conspiracy to knowingly

transport, sell, receive, acquire and

purchase halibut in violation of federal

fisheries laws, and for making a false

statement to a federal agency in violation

of 18 U.S.C. §1001. Hand and Larson appeal

their convictions and sentences, and we

affirm. Because the parties are familiar

with the facts and procedural history, we

will not repeat it here.

A.

Hand and Larson allege that the evidence

was insufficient to support their

convictions for making false statements to

A3

a federal agency under 18 U.S.C. § 1001. We

stonemeo.

Under 18 U.S.c. § 1001, it is unlawful

for any person “in any matter within the

jurisdiction of the executive, legislative,

or judicial branch of the Government of the

United States," to "knowingly and willfully.

. make{] or use{] any false writing or

document knowing the same to contain any

materially false, fictitious, or fraudulent

statement or entry. - . ." Conviction under

Section 1001 requires proof beyond a

reasonable doubt of five elements: a

statement, falsity, materiality, specific

intent, and federal agency jurisdiction.

United States v. Boone, 951 F.2d 1526, 1544

(9th Cir.1991). We affirm the conviction

because, viewing the evidence in the light

most favorable to the prosecution, a

rational trier of fact could have found the

A4

essential elements of the crime beyond a

reasonable doubt. See United States v.

Jones, 84 F.3d 1206, 1210 (9th Cir.), cert.

denied, __U.S.__, 117 S. Ct. 05, 136 L. Ed.

2a 319 (1996).

The government presented evidence that

Hand completed a fish ticket for the June

1993 halibut opening at Larson's request

which falsely classified fish caught by

Larson as fish caught by his wife. Thus,

the "statement" and "falsity" elements are

satisfied. A statement is material under

Section 1001 if it has a "natural tendency

to influence, or [be] capable of

influencing, the decision of the

decisionmaking body to which it was

addressed." United States v. Gaudin,

U.S. _, 115 S. Ct. 2310, 1313, 132 L. Ed.

2d 444 (1995) (internal quotations omitted).

The government presented evidence that a

A5

fish ticked is a document upon which the

National Marine Fisheries Service, an agency

of the United States, relies in ite

management of the halibut fishery. Thus, 4

rational trier of fact could find that the

fish ticket at issue was capable of

influencing a government agency even though

the ticket was never actually submitted.

See United States V- Heuer, 4 F.3d 723, 734

(9th Cir. 1993), cert. denied, 510 U. S-

116, 114 S-.- ct. 1190, 127 L. Ed. 2d 540

(1994); United States v- Oren, 893 F.2d

1057, 1064 (9th Cir. 1990).

The government offered specific intent

evidence from which a rational trier could

have found that Larson and Hand agreed to

create a false fish ticket classifying fish

caught by Larson as fish caught by his wife.

Hand and Larson concede that Larson's wife

did not fish the June 1993 opening. A

A6

rational trier of fact could have found that

Larson sent a note to Hand requesting that

a fish ticket be made out in the name of

Larson's wife. Hand made out such a ticket

and delivered a check to Larson's wife. The

weights on the fish ticket matched weights

from a ledger that Trooper Arlow identified

a tally sheet of weights and dates of

illegal halibut delivered by Larson to

Alaska Seafood Company prior to the June

1993 opening. Larson and Hand had a full

opportunity to present their version of the

facts to the jury. The jury chose to

disbelieve their testimony. Because we find

sufficient evidence upon which to base the

jury's decision, we will not disturb it on

appeal.

Finally, the false fish ticket was within

the jurisdiction of a federal agency.

Larson and Hand argue that because the fish

A7

ticket was set aside for correction and was

not intended to be submitted, it was not

within the jurisdiction of any government

agency. In addition to the fact that a

reasonable juror may not have believed that

the ticket was set aside for correction, a

false statement need not be made directly to

a government agency, but need only relate to

a matter in which a federal agency has the

power to act. Heuer, 4 F.3d at 734

(concluding that a bill of lading intended

for internal corporate use was within the

jurisdiction of a government agency); see

also United States v. Petullo, 709 F.2d

1178, 1180 (7th Cir. 1983) (upholding

conviction under 18 U.S.C. § 1001 where city

government's early discovery of fraud kept

false information from actually reaching the

federal government). The National Marine

Fisheries Service is charged with analyzing

A8

the information in such tickets in its

management of the halibut fishery. Thus,

the National Marine Fisheries Service had

the power to act with regard to the false

fish ticket and the jurisdiction element is

satisfied.

Accordingly, we affirm the 18 U.S.C. §

1001 convictions.

B.

Hand and Larson argue that the district

Gourt violated their Fifth and Sixth

Amendment rights by excluding a portion of

defense witness Knightlinger's testimony.

They contend that this testimony showed

government (sic) Isturis's motivation to

lie. Hand and Larson~ claim that

Knightlinger's testimony would have shown

that Isturis was motivated to make false

accusations against Hand and _ Larson.

Whether an evidentiary ruling denies a

7

A9

defendant's Fifth or Sixth Amendments (sic)

rights is a question of law that we review

de novo. United States v. Contreras, 63

F.3d 852, 857 (9th Cir. 1995).

We find that Hand and Larson's

constitutional rights were not violated. It

is well established that parties are

entitled to introduce extrinsic evidence

that a witness is biased. United States v.

Abel, 469 U. S. 45,50-56, 105 S. Ct. 465, 83

L. Ed. 2d 450 (1984). However, this right

is not unlimited and only permits’ the

defendant to present sufficient evidence

with which to assess the witness's possible

bias and motivation for testifying. United

States v. Jackson, 882 F.ed 144, 1447 (9th

Cir. 1989). Knightlinger's testimony may

have shown that Isturis was testifying in

order to gain favor with the government,

which was threatening to prosecute him for

A10

his own illegal fishing activities. The

fact that Isturis may have been testifying

to gain favor of the government was already

clearly brought out during the defendants'

cross-examination of Isturis. Accordingly,

Hand and Larson's constitutional rights were

not violated when the district court refused

to admit Knightlinger's testimony.

Cc.

Larson argues that a supplemental jury

instruction allowed the jury to convict Hand

and Larson without finding an essential

element of the offense of conspiracy. We

review de novo whether a jury instruction

misstates the elements of a statutory crime.

United States v. Tagalicud, 84 F.3d 1180,

1183 (9th Cir. 1996). Because Larson makes

his argument for the first time on appeal,

we review for plain error and may reverse

his conviction only if the district court

ES DIO PEEP EEE

All

committed a clear error that affected his

substantial rights. United States v. Olano,

507 U.S. 725, 113 S. Ct. 1770, 1776-78, 123

L. Ed. 2a 508 (1993). We hold that the

district court did not commit plain error.

The district court gave the following

jury instruction:

Third, one of the members of the

conspiracy performed at least one

overt act for the purpose of

carrying out the conspiracy, with

all of you agreeing an a

particular overt act that you

find was committed.

In response to a question from the jury,

the district court gave the following

supplemental instruction:

[T)he government does not have to

prove beyond a reasonable doubt

that a conspiracy existed during

the entire period alleged in the

indictment. But the government

must prove beyond a reasonable

doubt the existence of a

conspiracy sometime during the

period alleged within the

indictment.

Al12

Larson argues that the two instructions,

read together, allow the jury to improperly

convict the defendants based upon an overt

act that occurred within the period alleged

in the indictment but not within the period

the conspiracy existed. We reject this

argument. The initial instructions were

clear that the individual committing the

overt act must be 4a member of the

conspiracy, and that the overt act must be

"for the purpose of carrying out the

conspiracy-" A jury could not logically

find that a "member of the conspiracy"

committed an overt act "for the purpose of

carrying out the conspiracy", put at a time

when no conspiracy existed. The district

court did not commit plain error.

D.

Hand and Larson contend that the district

court erred in calculating 4 sentence

Al13

enhancement under U.S.S.G §2Q2.1(b) (3) (A).

We review a district court's factual

findings for clear error and its application

of the facts to the Sentencing Guidelines

for abuse of discretion. United States v.

Robinson, 94 F.3d 1325, 1327 (9th Cir.

1996).

Section 2Q2.1 (b)(3)(A) states, "If

the market value of the fish, wildlife, or

plants exceeded $2,000, increase the offense

level by the corresponding number of levels

from the table in §2F1l.1 . . . ."

Application Note 4 to Section 2Q@.1 states:

When information is reasonably

available, "market value" under

subsection (b)(3)(A) shall be

based on the fair-market retail

price. Where the fair-market

retail price is difficult to

ascertain, the court may make a

reasonable estimate using any

reliable information, such as the

reasonable replacement or

restitution cost or the

acquisition and preservation

cost.

Al14

The district court adopted a fair market

value figure for the halibut of $5.99 per

pound, the price charged by two local

grocery stores. Hand and Larson argue that

the fair market retail price should not

apply to them because they participated in

the wholesale market which charges $2.50 per

pound. The district court's decision is in

accordance with the plain language of the

Sentencing Guidelines which require use of

the "fair-market retail price." Further, we

note that this is a question in which the

district court is in a far better position

to assess than we are. We find no clear

factual error and no abuse of discretion in

the district court's application of the

facts to the Sentencing Guidelines.

AFFIRMED.

Bl

UNITED STATES DISTRICT COURT

District of Alaska

UNITED STATES JUDGMENT IN A

OF AMERICA CRIMINAL CASE’

(For Offenses

Vv. Committed On or

After November 1,

JAMES L. LARSON 1987)

Case Number:

3:95CRO0057-002

PETER M. PAGE

Defendant's Attorney

THE DEFENDANT:* was found guilty on counts

1 and 2 as stated in the Indictment after a

plea of not guilty.

Title & Section Nature of Offense

18 U.S.C. * 373 Conspiracy

18 U.S.C. ' 1001 & 2 False Statements

Date Offense Concluded Count Number(s)

07/03/1993 1

06/15/1993 2

—

‘Filed JUL 17 1996

“portions of the printed form not used

in this judgment are omitted here.

B2

The defendant is sentenced as provided in

pages 2 through 6 of this judgment. The

sentence is imposed pursuant to the

Sentencing Reform Act of 1984.

IT IS FURTHER ORDERED that the defendant

shall notify the United States Attorney for

this district within 30 days of any change

of name, residence, or mailing address until

all fines, restitution, ccs<s, and special

assessments imposed by this judgment are

fully paid.

Defendant's Soc. Sec. No.: 534-56-4366

Defendant's Date of Birth: 03/14/1953

Defendant's USM No.: 12951-006

Defendant's Residence Address:

609 Main Street, Juneau, AK 99801

Defendant's Mailing Address:

609 Main Street, Juneau, AK 99801

07/15/1996

Date of Imposition of

Judgment

B3

s/ James M. Fitzgerald

Signature of Judicial Officer

JAMES M. FITZGERALD

U.8.DISTRICT JUDGE

Name & Title of

Judicial Officer

July 16, 1996

Date

Judgment-Page 2 of 6

DEFENDANT: JAMES L. LARSON

CASE NUMBER: 3:95CRO057-002

IMPRISONMENT

The defendant is hereby committed to

the custody of the United States Bureau of

Prisons to be imprisoned for a total term of

5 months.

The defendant shall surrender for

service of sentence at the institution

designated by

the Bureau of Prisons: as notified by the

—

Probation or Pretrial Services Office.

B4

Judgment-Page 3 of 6

DEFENDANT: JAMES L. LARSON

CASE NUMBER: 3:95CRO0057-002

SUPERVISED RELEASE

Upon release from imprisonment, the

defendant shall be on supervised release for

a term of 2 years.

The defendant’ shall report to the

probation office in the district to which

the defendant is released within 72 hours of

release from the custody of the Bureau of

Prisons.

The defendant shall not commit another

federal, state, or local crime.

The defendant shall not illegally possess

a controlled substance.

The defendant shall not possess a firearm

as defined in 18 U.S.C. § 921.

ETO eS ee ee a

B5

The defendant shall comply with the

standard conditions that have been adopted

by this court (set forth below). The

defendant shall also comply with the

additional conditions on the attached page

(if indicated below). See Special

Conditions of Supervision - Sheet 3.01

STANDARD CONDITIONS OF SUPERVISION

1) the defendant shall not leave the

judicial district without the permission of

the court or probation officer;

2) the defendant shall report to the

probation officer and shall submit a

truthful and complete written report within

the firs five days of each month;

3) the defendant shall answer truthfully

all inquiries by the probation officer and

follow the instructions of the probation

officer;

4) the defendant shall support his or her

dependents and meet other family

responsibilities;

5) the defendant shall work regularly at a

lawful occupation unless excused by the

probation officer for schooling, training,

or other acceptable reasons;

B6

6) the defendant shall notify the probation

officer ten days prior to any change in

residence of employment;

7) the defendant shall refrain from

excessive use of alcohol;

8) the defendant shall not frequent places

where controlled substances are illegally

sold, used, distributed, or administered;

9) the defendant shall not associate with

any persons engaged in criminal activity,

and shall not associate with any person

convicted of a felony unless granted

permission to do so by the probation

officer;

10) the defendant shall permit a probation

officer to visit him or her at any time at

home or elsewhere and shall permit

confiscation of any contraband observed in

plain view of the probation officer;

11) the defendant shall notify the probation

officer within seventy-two hours of being

arrested or questioned by a law enforcement

officer;

12) the defendant shall not enter into any

agreement to act as an informer or a special

agent of a law enforcement agency without

the permission of the court;

13) as directed by the probation officer,

the defendant shall notify third parties of

risks that may be occasioned by the

defendant's criminal record or personal

B7

history or characteristics, and shall permit

the probation officer to make such

notifications and to confirm the defendant's

compliance with such notification

requirement.

Judgment-Sheet 3.01

DEFENDANT: JAMES L. LARSON

CASE NUMBER: 3:95CR00057-002

SPECIAL CONDITICNS OF SUPERVISION

Within seven days of release from

imprisonment, the defendant shall be placed

on home confinement with electronic

monitoring and be eligible for the curfew

program from 7 a.m. through 7 p.n. The

defendant shall comply with the conditions

of home confinement for a period not to

exceed 150 days. During this period, the

defendant shall remain at his place of

residence except for employment and other

activities approved by the _ probation

officer, and shall maintain a telephone at

his place of residence without special

B8

features such as call forwarding, a computer

modem, caller ID, call waiting, or portable

cordless telephones for the stated period.

At the direction of the probation officer,

the defendant shall wear an electronic

monitoring device and follow electronic

monitoring procedures specified by the

probation officer.

Judgment-Page 4 of 6

DEFENDANT: JAMES L. LARSON

CASE NUMBER: 3:95CR00057-002

(This page of the form not used.)

Judgment-Page 5 of 6

DEFENDANT: JAMES L. LARSON

CASE NUMBER: 3:95CR00057-002

(This page of the form not used. )

Judgment-Page 6 of 6

DEFENDANT: JAMES L. LARSON

CASE NUMBER: 3:95CRO0057-002

B9

STATEMENT OF REASONS

The court adopts the factual findings

and guideline application in the presentence

report except (see attachment, if

necessary): as ruled upon at sentencing.

Guideline Range Determined by the Court:

Total Offense Level: 12

Criminal History Category: 1

Imprisonment Range: 10 to 16 months

Supervised Release Range: 2 to 3 years

Fine Range: $3,000.00 to $30,000.00

Fine waived or below the guideline

range because of inability to pay.

The sentence is within the guideline

range, that range does not exceed 24 months,

and the court finds no reason to depart from

the sentence called for by the application

of the guidelines.