United States v. Karim Bayyouk , 607 F. App'x 735 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 12 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-10271
Plaintiff - Appellee, D.C. No. 3:12-cr-00420-EMC-1
v. MEMORANDUM*
KARIM ISKANDER BAYYOUK,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted June 9, 2015
San Francisco, California
Before: CHRISTEN and WATFORD, Circuit Judges, and RAKOFF, Senior
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jed S. Rakoff, Senior District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
Defendant-Appellant Karim Iskander Bayyouk appeals his conviction for
obstruction of agency proceedings in violation of 18 U.S.C. § 1505. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Bayyouk was convicted on the basis of false statements that he made during
a recorded telephone interview with attorneys from the Securities and Exchange
Commission (“SEC”), who were investigating an insider-trading scheme
implicating Bayyouk and members of his extended family. Bayyouk asserts that
the district court erred by refusing to instruct the jury that it must unanimously
agree on which specific statement or statements made during the twenty-nine
minute interview constituted obstruction.1 We review a district court’s refusal to
give such a “specific unanimity instruction” for abuse of discretion. See United
States v. Kim, 196 F.3d 1079, 1082 (9th Cir. 1999).
Although the jury’s verdict must be unanimous in order to convict, “there is
no general requirement that the jury reach agreement on the preliminary factual
issues which underlie the verdict.” Schad v. Arizona, 501 U.S. 624, 632 (1991)
(plurality opinion) (quoting McKoy v. North Carolina, 494 U.S. 433, 449 (1990)
(Blackmun, J., concurring)) (internal quotation marks omitted). In other words, “a
1
Bayyouk never took the obvious pre-trial step of seeking formal
clarification through a bill of particulars of which particular statements the
Government was relying on.
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federal jury need not always decide unanimously ... which of several possible
means the defendant used to commit an element of the crime.” Richardson v.
United States, 526 U.S. 813, 817 (1999). Nonetheless, a specific unanimity
instruction should be given “if there is ‘a genuine possibility of jury confusion’ or
if ‘a conviction may occur as the result of different jurors concluding that the
defendant committed different acts.’” United States v. Ruiz, 710 F.3d 1077, 1081
(9th Cir. 2013) (quoting United States v. Anguiano, 873 F.2d 1314, 1319 (9th Cir.
1989)).
Neither of these circumstances exists here. The jury did not indicate that it
was confused, nor was the indictment broad or ambiguous, nor was the evidence
particularly complex. See Anguiano, 873 F.2d at 1319-21. To the contrary,
Bayyouk was convicted of a single, straightforward count, on the basis of a single
course of conduct spanning a short period of time. Any possibility of juror
confusion was at best remote.
Furthermore, the possibility that the jurors could have agreed that Bayyouk
committed obstruction while failing to agree on which specific statement or
statements constituted such obstruction does not require reversal. Our cases make
clear that, under circumstances such as these, “consensus by the jury on a
particular false statement is not required.” United States v. McCormick, 72 F.3d
-3-
1404, 1409 (9th Cir. 1995); see also United States v. Lyons, 472 F.3d 1055, 1068
(9th Cir. 2007) (holding that “the jury need not be unanimous on the particular
false promise”). Any potential disagreements among the jury members regarding
the particular false statement by which Bayyouk obstructed the SEC investigation
are merely differences of means, and therefore do not violate his right to a
unanimous jury verdict. See Schad, 501 U.S. at 631; Richardson, 526 U.S. at 817;
United States v. Gonzalez, No. 13-50348, 2015 WL 2215956, at *4 (9th Cir. May
13, 2015); United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010); United
States v. Kim, 196 F.3d 1079, 1083 (9th Cir. 1999). Accordingly, the district court
did not abuse its discretion by refusing to give a specific unanimity instruction.
AFFIRMED.
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