United States v. Mohsen ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-10059
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00095-WBS
AMR MOHSEN,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted
August 31, 2009—San Francisco, California
Filed November 25, 2009
Before: Betty B. Fletcher and Andrew J. Kleinfeld,
Circuit Judges, and Kevin Thomas Duffy,* District Judge.
Per Curiam Opinion
*The Honorable Kevin Thomas Duffy, Senior United States District
Judge for the Southern District of New York, sitting by designation.
15591
15594 UNITED STATES v. MOHSEN
COUNSEL
Dennis P. Riordan, Riordan & Horgan, San Francisco, Cali-
fornia, for the appellant.
Amber S. Rosen, Assistant United States Attorney, San Jose,
California, for appellee.
OPINION
PER CURIAM:
On February 27, 2006, Amr Mohsen was convicted by a
jury of conspiracy, three counts of perjury, subornation of
perjury, eight counts of mail fraud, obstruction of justice, and
contempt of court. On March 15, 2006, Amr Mohsen was
convicted by the same jury (in Phase II of his bifurcated trial)
of witness tampering and solicitation to commit arson. He
appeals his conviction on a multitude of grounds. We reject
his arguments for the reasons given below.
I. Jury Instructions
Mohsen’s first contention is that the district court commit-
ted reversible error because it did not instruct the jury on sub-
UNITED STATES v. MOHSEN 15595
stantive patent law. Defense counsel, however, failed to pro-
pose an instruction on patent law at trial. Therefore, we
review for plain error. United States v. McCormick, 72 F.3d
1404, 1409 (9th Cir. 1995); United States v. Krasn, 614 F.2d
1229, 1235 (9th Cir. 1980).
[1] Mohsen argues that in order to understand the element
of materiality in the various perjury and fraud charges against
him, the jury needed an instruction on substantive patent law.
Mohsen is incorrect. This is not a patent case. This is a per-
jury and fraud case. The judge correctly instructed the jury on
the materiality element of the perjury and fraud charges.
United States v. McKenna, 327 F.3d 830, 839 (9th Cir. 2003).
Moreover, the jury heard sufficient unchallenged expert testi-
mony regarding the substance of patent law and of the under-
lying dispute to understand and ultimately convict Mohsen of
the perjury and fraud charges. See United States v. Pree, 408
F.3d 855, 873 (7th Cir. 2005).
II. Motion to Sever the Trial
[2] Mohsen asserts that the district court abused its discre-
tion by denying Mohsen’s motion to sever the trial and order
a separate trial of Counts 21-23. The test for abuse of discre-
tion for failure to sever a trial is “whether a joint trial was so
manifestly prejudicial as to require the trial judge to exercise
his discretion in but one way, by ordering a separate trial.”
United States v. Decoud, 456 F.3d 996, 1008 (9th Cir. 2006)
(quotation marks and citation omitted); see also United States
v. Lewis, 787 F.2d 1318, 1321 (9th Cir. 1986) (“The prejudice
must have been of such magnitude that the defendant’s right
to a fair trial was abridged.”). Here, there was no use of the
Phase II counts or evidence in the Phase I proceedings, and
the bifurcation process was not so manifestly prejudicial as to
require reversal.
III. Constructive Amendment
[3] Mohsen argues that the prosecutor’s closing argument
constructively amended the indictment in violation of Moh-
15596 UNITED STATES v. MOHSEN
sen’s Fifth Amendment rights. Because defense counsel did
not raise this objection at trial, Mohsen’s claim is reviewed
for plain error. United States v. Dipentino, 242 F.3d 1090,
1094 (9th Cir. 2001). There is no plain error here. The prose-
cutor’s mention of the “Lobo notes” in the closing argument
did not change the terms of the indictment, nor did it offer an
alternative factual basis for conviction so as to prejudice
Mohsen’s substantial rights. See United States v. Adamson,
291 F.3d 606, 614-15 (9th Cir. 2002); Dipentino, 242 F.3d at
1094.
IV. The Jury Note
[4] Mohsen contends that the judge should have consulted
the parties or counsel before responding to the jury’s request
to see the indictment with the “specific charges.” He is cor-
rect. The judge erred. However, the error was harmless
beyond a reasonable doubt. United States v. Barragan-Devis,
133 F.3d 1287, 1289 (9th Cir. 1998). The parties had previ-
ously agreed not to give the jury the indictment. The verdict
form gave the jury the information the indictment would have
given them, without the charges that were not before them. As
the district judge made clear in a subsequent discussion with
counsel, he thought that the jury had asked for the indictment
only because there had been a delay in taking the instructions
and verdict form to the jury room. The district court stated, “it
was obvious . . . that if the jury would just take one look at
the verdict form that they hadn’t seen by the time they wrote
the note, they would have been able to see what the specific
charges are, because they are differentiated in the verdict
form.”
[5] Mohsen argues that answering a jury question or
request without first consulting defendant’s counsel is struc-
tural error always requiring reversal. That is incorrect. The
judge’s failure to consult the parties before refusing the jury’s
request to see the indictment was trial error. The cases Moh-
sen cites regarding structural error are distinguishable. In
UNITED STATES v. MOHSEN 15597
Musladin v. Lamarque, 555 F.3d 830 (9th Cir. 2009), we
upheld under AEDPA a state court’s decision that a trial
judge’s response to a jury note asking for “amplification” of
a jury instruction was not a “critical stage” of the trial process
for purposes of determining whether the error was structural.
We never suggested that all errors regarding jury communica-
tions during deliberations were subject to automatic reversal.
Unlike the communication in Musladin, the jury note here
was not a question about the law governing the jury’s deliber-
ations.
[6] Mohsen also cites to United States v. Benford, 574 F.3d
1228 (9th Cir. 2009). Benford holds, in the context of direct
review of an ineffective assistance of counsel claim, that a
pre-trial status conference was not a “critical stage” of the
trial. Id. at 1232. Mohsen appears to rely on Frantz v. Hazey,
533 F.3d 724, 743 (9th Cir. 2008) (en banc), which Benford
cites in passing. Frantz, however, concerned a note from the
jury about evidence that had not been admitted at trial. See id.
at 741-42. The communication here, by contrast, made no
substantive inquiry about the facts or the law.
In United States v. Rosales-Rodriguez, 289 F.3d 1106, 1110
(9th Cir. 2002), we applied harmless error analysis to a trial
judge’s ex parte unsolicited note to the jury with a supplemen-
tal instruction regarding the substitution of an alternate juror.
In Barragan-Devis, 133 F.3d at 1289, we applied harmless
error analysis to the trial judge’s lack of response to a jury
note. In United States v. Frazin, 780 F.2d 1461, 1469 (9th Cir.
1986), we applied harmless error analysis where a trial judge
responded to a jury note communicating deadlock with an ex
parte instruction to continue deliberations.
V. Insufficient Evidence Claim
[7] Mohsen argues that there was insufficient evidence to
support his perjury conviction because his answers to the
questions posed were “literally true” but misleading. We
15598 UNITED STATES v. MOHSEN
reject this argument. There was sufficient evidence for the
jury to conclude that Mohsen understood the question as it
was asked, and intentionally lied. United States v. Camper,
384 F.3d 1073, 1076 (9th Cir. 2004).
VI. Contempt of Court Conviction
Mohsen was convicted for contempt of court for applying
for a new passport to flee the country in violation of his con-
ditional pre-trial release. Mohsen argues this conviction
should be set aside for three reasons.
First, Mohsen argues that the conviction should be set aside
because the contempt prosecution was initiated by the grand
jury’s indictment, not by the judge who set the conditions of
his release. This is incorrect. Both the trial court and the grand
jury have power to bring contempt proceedings under 18
U.S.C. § 3148 and 18 U.S.C. § 401. See, e.g., United States
v. Armstrong, 781 F.2d 700, 703-04 (9th Cir. 1986); Steinert
v. U.S. Dist. Ct. for the Dist. of Nevada, 543 F.2d 69, 70-71
(9th Cir. 1976).
[8] Second, Mohsen argues that the district court abused its
discretion by admitting into evidence a note found in Moh-
sen’s jail cell that had his wife’s name at the top and no mail-
ing address. The note was uncovered in a box of documents
under a desk when the government executed a warrant to
search Mohsen’s jail cell for evidence of witness tampering,
solicitation of a crime of violence, and obstruction of justice,
and to seize notes and documents related to faking a psycho-
logical disorder or incompetence. Mohsen claims that the note
is covered by the marital privilege, and that the search itself
was conducted in violation of Massiah v. United States, 377
U.S. 201 (1964). Both of Mohsen’s arguments are incorrect.
The marital privilege does not apply because, as the district
court found, Mohsen had presented “no evidence whatsoever”
that he intended to deliver the message to his wife. See also
United States v. Montgomery, 384 F.3d 1050, 1056-57 (9th
UNITED STATES v. MOHSEN 15599
Cir. 2004). Nor did the search and seizure violate Massiah.
The search and seizure warrant was justified by an affidavit
that noted statements made to the undercover informant con-
cerning illegal activities with which the defendant had not yet
been charged, and the objects to be searched for and seized all
related to potential criminal acts that had not yet been
charged. That the police inadvertently found evidence relating
to the contempt charge during the search and seizure does not
invalidate the search warrant. See United States v. Ewain, 88
F.3d 689, 693 (9th Cir. 1996).
[9] Finally, Mohsen argues that there was insufficient evi-
dence for the jury to find beyond a reasonable doubt that
Mohsen applied for a passport. We disagree. In addition to the
evidence that Mohsen had made reservations for overseas
travel requiring a passport, that he had gone to the consulate,
and that in his car he had copies of the necessary documents
to obtain a passport, the note found in his jail cell made spe-
cific reference to a “2004 application” for an Egyptian pass-
port. We conclude that there was sufficient evidence for a jury
to find beyond a reasonable doubt that Mohsen had applied
for a new passport.
VII. Improper Vouching
[10] Mohsen correctly contends that the prosecutor improp-
erly vouched during the closing argument of Phase I. Because
the defense did not object at trial to the prosecutor’s com-
ments, the prosecutor’s vouching is reviewed for plain error.
United States v. Williams, 989 F.2d 1061, 1071-72 (9th Cir.
1993). We find that the prosecutor’s rhetorical use of the
phrase “I think” did not constitute reversible error.
[11] Mohsen also argues that the prosecutor violated the
advocate-witness rule and engaged in improper vouching in
Phase II of the trial. Because Mohsen did not raise this objec-
tion to the district court, the claim is reviewed for plain error.
United States v. Cabrera, 201 F.3d 1243, 1246 (9th Cir.
15600 UNITED STATES v. MOHSEN
2000). The prosecutor’s conduct in Phase II did not constitute
vouching or violate the advocate-witness rule. The prosecutor
did not suggest that her questions or closing argument were
based on private knowledge or anything other than the evi-
dence presented at trial. Cf. United States v. Molina, 934 F.2d
1440, 1446 (9th Cir. 1991). Moreover, given the weight of
tape-recorded evidence supporting the Phase II convictions,
there is no plain error. Id.VIII. Ineffective Assistance of Counsel
Mohsen argues that his trial counsel’s failure to request an
instruction on the underlying substantive patent law consti-
tuted ineffective assistance of counsel. Mohsen also argues
that his Phase II convictions should be overturned for ineffec-
tive assistance of counsel. “Ineffective assistance claims,
however, are ordinarily left for collateral habeas proceedings
due to the lack of a sufficient evidentiary record as to what
counsel did, why it was done, and what, if any, prejudice
resulted.” United States v. Sager, 227 F.3d 1138, 1149 (9th
Cir. 2000) (internal quotation marks and citation omitted).
Here, the record is not sufficiently developed and Mohsen’s
counsel was not so inadequate as to deny Mohsen his Sixth
Amendment right to counsel. We therefore decline to consider
Mohsen’s ineffective assistance claims on direct appeal.
IX. Sentencing Enhancement
[12] Mohsen argues that the district court erred at sentenc-
ing in calculating the amount of loss attributable to his fraudu-
lent scheme. We disagree. There was sufficient evidence to
justify the district court’s conclusion that Mohsen intended his
scheme to cause losses totaling more than forty million dol-
lars. Thus, under the 1998 guidelines, the 17 point upward
sentence enhancement was appropriate. U.S.S.G.
§ 2F1.1(b)(1)(R) (1998).
UNITED STATES v. MOHSEN 15601
X. Request for Remand
[13] Mohsen contends that this Court should remand this
case for a renewed motion for new trial on the grounds that
he was deprived of his right to counsel of his choice. We dis-
agree. The district court did not abuse its discretion when it
rejected (after briefing and a hearing on conflict of interest
issues) Mohsen’s choice of substitute counsel due to the sub-
stitute attorney’s conflict of interest. See Miller v. Blacketter,
525 F.3d 890, 895 (9th Cir. 2008) (“A defendant does not
have the right to be represented by . . . an attorney with a con-
flict of interest . . . .”). Nor did the district court abuse its dis-
cretion in refusing to grant a three month continuance
requested by Mohsen’s second choice of substitute counsel,
even where the attorney decided not to take the appointment
because of the court’s decision. The district court did not deny
the substitution of the second counsel chosen, but exercised
its discretion to deny the continuance requested by that attor-
ney. The district court has broad discretion to grant or deny
motions for continuances. United States v. Garrett, 179 F.3d
1143, 1145 (9th Cir. 1991). Mohsen’s request that we remand
for a renewed retrial hearing with new counsel is denied.
XI. Spillover prejudice
Mohsen argues that if any of his convictions in Phase I are
vacated, his convictions in Phase II must also be vacated due
to “the risk of prejudicial spillover.” Because we affirm all of
Mohsen’s Phase I convictions, we do not reach this question.
AFFIRMED.