United States v. Bret Ogilvie , 633 F. App'x 891 ( 2015 )


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  •                            NOT FOR PUBLICATION                         FILED
    UNITED STATES COURT OF APPEALS                      DEC 17 2015
    FOR THE NINTH CIRCUIT                    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    UNITED STATES OF AMERICA                        No. 14-10163
    Plaintiff - Appellee,              D.C. No. 3:12-cr-00121-LRH-
    WGC-1
    v.
    BRET OGILVIE,
    Defendant - Appellant.              MEMORANDUM*
    Appeal from the United States District Court
    for the District of Nevada
    Larry R. Hicks, District Judge, Presiding
    Submitted November 17, 2015**
    San Francisco, California
    Before: FERNANDEZ and M. SMITH, Circuit Judges and MORRIS,*** District
    Judge.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes this case is suitable for decision without
    oral argument. See Federal Rule of Appellate Procedure 34(a)(2).
    ***
    The Honorable Brian M. Morris, District Judge for the U.S. District Court
    for the District of Montana, sitting by designation.
    1
    Bret Ogilvie appeals his convictions for conspiracy to defraud the United
    States, 
    18 U.S.C. § 371
    , corruptly interfering with the IRS, 
    26 U.S.C. § 7212
    (a),
    and five counts of making false claims, 
    18 U.S.C. § 287
    . Ogilvie argues that (1) no
    rational jury could have found sufficient evidence to convict him of any count
    charged in the Indictment; and (2) he was denied his constitutional right to a fair
    trial because he did not receive complete discovery and because he was denied the
    ability to subpoena witnesses. We have jurisdiction under 
    28 U.S.C. § 1291
    , and
    we affirm.
    I
    We review de novo the sufficiency of the evidence supporting a defendant’s
    conviction. United States v. Green, 
    592 F.3d 1057
    , 1065 (9th Cir. 2010). This
    Court must affirm the conviction if, after viewing the evidence in the light most
    favorable to the prosecution, any rational trier of fact could have found the
    essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
    
    443 U.S. 307
    , 319 (1979); see also United States v. Nevils, 
    598 F.3d 1158
    ,
    1163–65 (9th Cir. 2010). Under this deferential standard, we conclude that the
    Government provided sufficient evidence to allow a rational trier of fact to convict
    Ogilvie of all counts charged in the Indictment.
    II
    2
    To reverse a conviction for a discovery violation, we must find not only that
    the district court abused its discretion, but also that the error resulted in prejudice
    to substantial rights. United States v. Baker, 
    10 F.3d 1374
    , 1398 (9th Cir. 1993),
    overruled on other grounds by United States v. Nordby, 
    225 F.3d 1053
     (9th Cir.
    2000). The defendant must show a likelihood that the verdict would have been
    different had the Government complied with the discovery rules. 
    Id.
     at 1398 n. 8.
    The Government’s failure to provide information as required by Brady v.
    Maryland, 
    373 U.S. 83
     (1963), rises to the level of constitutional error only if a
    reasonable probability exists that the result of the proceeding would have been
    different had the Government disclosed the information. Kyles v. Whitley, 
    514 U.S. 419
    , 434–36 (1995).
    The Government conceded during trial that it had failed to produce the IRS
    agent’s case history. Both the district court and the Government advised Ogilvie
    that the revenue agent remained available for additional cross-examination should
    Ogilvie find it necessary after having reviewed the file. At no time during the
    remaining day of trial did Ogilvie again raise the issue or re-call the agent to
    question her about the case history. Ogilvie also did not request dismissal of his
    case, a continuance, a new trial, or any other relief based on the Government’s late
    production of the file. Fed. R. Crim. P. 16(d)(2).
    3
    Ogilvie has failed to allege any specific prejudice attributable to the
    Government’s untimely production of the revenue agent’s case history. Likewise,
    he never has claimed to have found any exculpatory evidence in the agent’s case
    history file. Ogilvie has failed to establish any “likelihood that the verdict would
    have been different had the Government complied with the discovery rules” and
    timely provided the agent’s case history. Baker, 
    10 F.3d at 1398, n.8
    . Accordingly,
    we reject this claim.
    III
    We review de novo ineffective assistance of counsel claims. United States v.
    Nickerson, 
    556 F.3d 1014
    , 1018 (9th Cir. 2009). Ogilvie contends that his standby
    counsel’s failure to subpoena witnesses deprived him of the ability to put on any
    defense whatsoever and denied him a fair trial.
    Assuming that Ogilvie would not be foreclosed from raising this issue, the
    record arguably provides at least a hint of support for Ogilvie’s belief that the
    district court had ordered standby counsel to subpoena witnesses on his behalf. The
    record remains silent, however, about what Ogilvie actually said or requested of his
    standby counsel. We cannot determine on this record whether Ogilvie’s standby
    counsel strategically declined to subpoena any witnesses. We do, however, note
    that Ogilvie’s witness list contained numerous witnesses who would not have had
    any relevant testimony to offer.
    4
    The Government asserts that the record proves inadequate to consider issues
    regarding the performance of Ogilvie’s standby counsel. United States v. Mohsen,
    
    587 F.3d 1028
     (9th Cir. 2009). An appellate court generally should not review
    ineffective assistance of counsel claims on direct appeal because they usually lack
    “a sufficient evidentiary record as to what counsel did, why it was done, and what,
    if any, prejudice resulted.” 
    Id. at 1033
    . An evidentiary hearing would be required
    to establish these facts.
    Without additional evidentiary support, Ogilvie likely cannot show prejudice
    from any alleged failure of his standby counsel to subpoena witnesses on his
    behalf. The district court gave Ogilvie and standby counsel an opportunity to
    discuss the issue of calling witnesses in his defense after the Government had
    concluded its case in chief. Standby counsel informed the court outside the
    presence of the jury that three of the four witnesses whom the court would allow
    Ogilvie to call on short notice, in his professional opinion, were irrelevant to
    Ogilvie’s case. The court excluded the fourth witness from testifying as irrelevant.
    Even if Ogilvie’s standby counsel had subpoenaed these witnesses, it
    remains unclear from the record whether the court would have allowed them to
    testify on his behalf. The Government correctly contends that the evidentiary
    record remains incomplete regarding the effectiveness of Ogilvie’s standby counsel
    and we decline to further consider that claim.
    5
    AFFIRMED.
    6