United States v. Danny Harvey , 392 F. App'x 607 ( 2010 )

FILED
NOT FOR PUBLICATION AUG 24 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30213
Plaintiff - Appellee, D.C. No. 3:07-cr-00103-RRB-1
v.
MEMORANDUM *
DANNY MICHAEL HARVEY,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding
Argued and Submitted July 27, 2010
Anchorage, Alaska
Before: SCHROEDER, O’SCANNLAIN and CLIFTON, Circuit Judges.
Danny Michael Harvey appeals his conviction and sentence. He raises
several arguments, but his primary position is that the district court should have
dismissed the indictment, either as a matter of due process or in the exercise of the
district court’s supervisory authority. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
A district court may dismiss an indictment with prejudice if the government
engages in conduct that is so outrageous that it amounts to a due-process violation
or, in certain circumstances, in the exercise of its supervisory authority. See United
States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991). We address each
theory in turn. We do not describe the challenged conduct, with which the parties
are familiar.
To justify dismissing an indictment on the basis of outrageous conduct, “the
Government’s conduct must be so grossly shocking and so outrageous as to violate
the universal sense of justice.” United States v. Smith, 924 F.2d 889, 897 (9th Cir.
1991). Additionally, the conduct must have violated “some protected right of the
defendant” to justify reversal. United States v. Payner, 447 U.S. 727, 737 n.9
(1980); see also United States v. Struckman, No. 08-30312, 2010 WL 2573211, at
*10 (9th Cir. June 29, 2010). No protected right of Harvey’s was violated here. We
have approved analogous conduct when appropriately controlled, and there is no
reason to believe that Harvey’s reaction would have been any different if
appropriate controls had been in place. See United States v. Mitchell, 915 F.2d 521,
526 (9th Cir. 1990).
Turning to the district court’s refusal to dismiss the indictment in the
exercise of its supervisory authority, we note first that the district court did
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expressly consider this theory in its order concerning Harvey’s motion to dismiss
the second superseding indictment. The district court determined that it had
sufficiently exercised its supervisory responsibilities both by suppressing certain
evidence and by referring the questionable conduct to two agencies for review. We
agree.
We review the district court’s determination for abuse of discretion. See
United States v. Chapman, 524 F.3d 1073, 1086 (9th Cir. 2008). In reviewing the
district court’s decision, we consider whether there has been flagrant misconduct,
whether that conduct resulted in substantial prejudice to the defendant, and whether
any lesser remedial action was available. See id. at 1087. The government asserts
that only prosecutorial misconduct can justify a court’s exercise of supervisory
authority, but our cases do not support that limitation. Cf. United States v. Simpson,
927 F.2d 1088, 1090 (9th Cir. 1991) (“Unless the law enforcement officers break
the law, the court has no authority to sanction them.”). Yet as we discussed above,
Harvey suffered no prejudice from the government’s conduct. And the district
court demonstrated that a lesser remedial action was available by taking it.
Refusing to dismiss the indictment was not an abuse of discretion.
Harvey also contends that the district court erred by granting the
government’s motion in limine concerning the cross-examination of the agent who
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investigated Harvey’s case. We need not reach the question whether the district
court abused its discretion, because any error was harmless beyond a reasonable
doubt. See United States v. Larson, 495 F.3d 1094, 1107–08 (9th Cir. 2007) (en
banc). The evidence against Harvey, including chat transcripts, emails, and the
physical evidence that Harvey carried with him to Alaska, overwhelmingly
supports his convictions. Impeaching the agent would not have affected the
outcome. Allowing expanded cross-examination would not have changed the
result.
Harvey next suggests that the district court failed to rule on whether
evidence that had been suppressed at trial could be considered at sentencing and
whether Harvey should have the right to confront witnesses against him during the
sentencing hearing. The transcript of the sentencing hearing contradicts this
assertion. The district court ruled, correctly, that it could consider both the
suppressed evidence and the hearsay concerning Harvey’s prior conduct. See
United States v. Littlesun, 444 F.3d 1196, 1200 (9th Cir. 2006); United States v.
Haynes, 216 F.3d 789, 801 (9th Cir. 2000).
Harvey finally argues that his sentence was substantively unreasonable.
Harvey frames the argument as procedural, asserting that the district court reneged
on a promise not to place undue emphasis on conduct that Harvey engaged in
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earlier in his life. But the district court’s weighing of “the history and
characteristics of the defendant” goes to a sentence’s substantive reasonableness.
18 U.S.C. § 3553(a)(1). We review for abuse of discretion. See United States v.
Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).
Harvey’s conviction for attempting to violate 18 U.S.C. § 2241 required the
district court to impose a mandatory minimum sentence of thirty years. After
considering not only Harvey’s prior conduct, but also his lack of remorse, the
vulnerability of his intended victim, the danger he posed to the public, and his
convictions on three additional counts, including two that involved actual victims,
the district court sentenced Harvey to thirty-six years’ imprisonment. Considering
the totality of the circumstances, including the variance below the Guidelines range
of life imprisonment, the sentence was substantively reasonable and was not an
abuse of the district court’s discretion. See Carty, 520 F.3d at 993.
AFFIRMED.
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