United States v. Michael Snyder ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 02 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-50190
Plaintiff - Appellee, D.C. No. 2:12-cr-01062-GAF-1
v.
MEMORANDUM*
MICHAEL LESLIE SNYDER,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted March 9, 2016
Pasadena, California
Before: PREGERSON, PAEZ, and NGUYEN, Circuit Judges.
Michael Snyder appeals his conviction and sentence for eight counts of theft
of government property in violation of 18 U.S.C. § 641, and one count of making
and using a false statement in violation of 18 U.S.C. § 1001(a)(3). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. We review for an abuse of discretion the district court’s dismissal of an
indictment for pre-indictment delay, and we review a finding of Fifth Amendment
prejudice for clear error. United States v. Gregory, 322 F.3d 1157, 1161 (9th Cir.
2003); see also United States v. Corona-Verbera, 509 F.3d 1105, 1112 (9th Cir.
2007).
Snyder argues that during the five-year period between when the
government became aware of his fraud and when it filed the indictment, Snyder’s
mother passed away. Snyder contends that from 2007 to 2008, when the alleged
thefts occurred, he lived with his mother, who would have testified if he had been
indicted earlier. At that time, Snyder’s nephew also lived in the apartment and was
the designated caretaker for Snyder’s mother. Snyder’s nephew, a defense witness,
testified that Snyder primarily lived with his wife at that time, in a separate
residence.
Snyder has not demonstrated that the absence of his mother’s testimony rises
to the level of Fifth Amendment prejudice. Although he posits that his mother
would have offered compelling testimony on his behalf, “when a defendant fails to
make a specific showing as to what a deceased witness would have said, any
argument of prejudice is pure conjecture.” Corona-Verbera, 509 F.3d at 1113.
Snyder also failed to demonstrate that the testimony of his mother, who
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purportedly suffered from the early stages of dementia prior to her death in 2009,
was distinct from and more probative than his nephew’s testimony. Because
Snyder’s allegations of prejudice are speculative, we need not examine the
government’s reasons for the delay in filing. See United States v. Barken, 412 F.3d
1131, 1134 (9th Cir. 2005) (“The second part of the test applies only if the
defendant has demonstrated actual prejudice.”). The district court did not err in
denying Snyder’s motion to dismiss the indictment for pre-indictment delay.
2. Under Batson v. Kentucky, 476 U.S. 79 (1986), and Hernandez v. New York,
500 U.S. 352 (1991) (plurality opinion), a defendant may challenge the
prosecution’s discriminatory use of peremptory challenges. When a defendant
fails to object to the prosecution’s explanation for its peremptory strikes, we
review for plain error. United States v. Contreras-Contreras, 83 F.3d 1103, 1105
(9th Cir. 1996). Snyder does not challenge the court’s Batson findings. Instead, he
argues that the district court erred when it ruled on Snyder’s Batson challenge but
failed to solicit the prosecution’s explanation for its peremptory strikes against two
other Latino jurors.
During jury selection, Snyder invoked Batson, asserting that the prosecution
had struck a “third Latino” juror. The district court assumed without deciding that
Snyder had made a prima facie showing that the prosecution’s peremptory strike
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improperly discriminated on the basis of ethnicity, and the court asked the
prosecution to provide an explanation. The prosecutor provided a race-neutral
explanation, and she noted that she did not know the prospective juror’s race or
ethnicity on the basis of his name or appearance. Both the district court and
Snyder’s counsel agreed that they also could not identify the juror’s ethnicity. The
district court assumed for the purposes of the motion that the prospective juror was
Latino and found that there was insufficient evidence to support a Batson
challenge.
Snyder’s counsel, however, did not notify the district court that she sought to
have the court question the prosecutor regarding the strikes against the two prior,
prospective Latino jurors. Nor did she object to the court’s finding that Snyder had
not met his burden under Batson. Under these circumstances, we fail to see any
error, plain or otherwise, in the district court’s failure to conduct a sua sponte
Batson analysis of the exclusion of the prior two Latino jurors.
3. We review for an abuse of discretion the court’s formulation of jury
instructions. United States v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010). We
review those instructions in context and as a whole to determine whether they are
misleading or inadequate to guide the jury’s deliberations. United States v.
Garcia-Rivera, 353 F.3d 788, 792 (9th Cir. 2003). We review de novo whether the
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instructions omit or misstate the elements of a statutory crime. Hofus, 598 F.3d at
1174. When the defendant fails to object to an instruction before the district court,
we review for plain error. United States v. Backman, 817 F.3d 662, 665 (9th Cir.
2016). Snyder’s challenge fails to establish that the district court erred.
In United States v. Carrier, we held that to establish a willful, false
statement in violation of 18 U.S.C. § 1001, the government must prove beyond a
reasonable doubt that the defendant acted “deliberately and with knowledge.” 654
F.2d 559, 561 (9th Cir. 1981). At the time of Snyder’s trial, Carrier’s
interpretation of section 1001’s intent requirement was binding precedent in this
circuit, and the district court so instructed the jury. We have upheld convictions
when the district court’s intent jury instruction used the language provided in
Carrier. United States v. Tatoyan, 474 F.3d 1174, 1182 (9th Cir. 2007).
Snyder argues that intervening case law calls into question Carrier’s
definition of “willfulness.” He contends that Bryan v. United States abrogated
Carrier because Bryan held that “a willful act is one undertaken with a bad
purpose” with respect to the Firearms Owners’ Protection Act, 18 U.S.C. §
922(a)(1)(A). 524 U.S. 184, 191–95 (1998) (internal quotation marks omitted).
Id. He additionally suggests that the Court’s non-binding, non-precedential, one-
line remand in United States v. Ajoku, 134 S. Ct. 1872 (2014) (vacating a
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conviction for violation of 18 U.S.C. § 1035), undermines our continued reliance
on Carrier and Tatoyan.
We need not resolve this question because even if the instruction was
erroneous, Snyder has failed to demonstrate that the alleged error affected his
substantial rights. To demonstrate that an error affected Snyder’s substantial
rights, he must demonstrate that the error was prejudicial—that is, that there is “a
reasonable probability that, but for [the error claimed], the result of the proceeding
would have been different.” United States v. Alghazouli, 517 F.3d 1179, 1190 (9th
Cir. 2008) (alteration in original). Snyder has failed to do so.
Construing the trial evidence in the light most favorable to the verdict, a
reasonable juror could have found that Snyder knowingly and willfully made a
false statement regarding his marital status with the knowledge that his statement
was false and his conduct unlawful. Snyder’s redetermination application required
the applicant to affirm: “I understand that anyone who knowingly lies or
misrepresents the truth . . . is committing a crime which can be punished under
Federal law, State law, or both. Everything on this document is the truth as best I
know it.” Marc Hammond, a Social Security Administration claims representative
and operations supervisor, testified that he reviewed Snyder’s application with
Snyder at the time that Snyder completed and submitted it. As part of that process,
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Hammond flagged for Snyder the form’s advisory regarding truthful statements,
and he instructed Snyder to read the advisory prior to signing the redetermination
application. Additionally, weeks prior to submitting his redetermination
application, Snyder had asked Social Security staff, “on behalf of a friend,” what
the impact of marrying an ineligible spouse would have on an SSI-recipient’s
eligibility. Moreover, Snyder himself admitted that he knew he “should have
reported [his] marriage” to the Social Security Administration but did not because
his wife was “making a lot of money” and he was “afraid [his] SSI benefits would
be reduced[.]” On this record, it is not reasonably probable that a modified jury
instruction would have produced a different result on Count 9.
4. Finally, Snyder contends that the district court erred in rejecting his
proposed jury instruction defining “household.” “A court commits reversible error
when it fails to instruct the jury” on a defense theory if that theory is supported by
law and if “there is evidence upon which the jury could rationally sustain the
defense.” United States v. Daane, 475 F.3d 1114, 1119 (9th Cir. 2007) (first
quotation); United States v. Boulware, 558 F.3d 971, 974 (9th Cir. 2009) (second
quotation). We do not require the district court to charge the jury on a theory of
defense for which there is no evidentiary support.
Snyder’s defense was that he maintained a household with his mother, not
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his wife, at the time of the alleged thefts because his mother’s apartment is where
he contributed to the cost of household expenses. SSI regulations require a
spouse’s income be “deemed” to the claimant, which may affect the claimant’s
eligibility, as well as the amount of the claimant’s benefits award. See 20 C.F.R.
§§ 416.1160, 416.1163. Because the “deeming” regulations do not define
“household,” Snyder requested the court look to the definitions from regulations
regarding in-kind or third-party support—which affect the amount of an
award—when charging the jury on Snyder’s “household” defense. See 20 C.F.R.
§§ 416.1131–416.1133. Drawing on 20 C.F.R. § 416.1132(a), the court defined a
household as “a personal place of residence.” Snyder requested a more elaborate
instruction, arguing that his household was also defined by where he paid a share
of household and operating expenses. See id. § 416.1132(c)(4). The in-kind
support regulations defined household expenses as “monthly expenditures for food,
rent, mortgage, property taxes, heating fuel, gas, electricity, water, sewerage, and
garbage collection service” averaged over the previous twelve months. Id. §
416.1133.
Aside from the statements made on Snyder’s redetermination application,
there was no other evidence that he paid rent at either residence. Snyder’s ex-wife
paid all household expenses at her house, and Snyder contended that he contributed
8
to his mother’s food costs. Snyder provided no evidence that he contributed to his
mother’s non-food household expenses. Snyder also was not listed as a tenant on
the lease for his mother’s apartment or for his wife’s house from December 2007
through December 2008, and he did not demonstrate that he was liable for rent at
either residence.
Noting that Snyder had not provided evidence that he was liable to any
landlord for a portion of either his mother or his wife’s rent, the court held that the
extended definitions in sections 416.1132(c) and 416.1133 were inapplicable. In
light of the dearth of evidence offered in support of Snyder’s household defense,
the district court did not err in declining to instruct the jury on a superfluous
definition. Moreover, the definition of “household,” as provided in the court’s
instruction number 13, was sufficient for Snyder to argue his “household” defense.
AFFIRMED.
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