United States v. Julius Chow Lieh Liu , 731 F.3d 982 ( 2013 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                No. 10-10613
    Plaintiff-Appellee,
    D.C. No.
    v.                   5:06-cr-00772-JW-1
    JULIUS CHOW LIEH LIU,
    Defendant-Appellant.           OPINION
    Appeal from the United States District Court
    for the Northern District of California
    James Ware, District Judge, Presiding
    Argued and Submitted
    March 11, 2013—San Francisco, California
    Filed October 1, 2013
    Before: John T. Noonan, Raymond C. Fisher,
    and Jacqueline H. Nguyen, Circuit Judges.
    Opinion by Judge Nguyen
    2                     UNITED STATES V. LIU
    SUMMARY*
    Criminal Law
    The panel vacated convictions and sentences on three
    counts of criminal copyright infringement and one count of
    trafficking in counterfeit labels in a case in which the
    defendant’s company commercially replicated CDs and
    DVDs for various clients on a scale that subjects the
    defendant to substantial criminal liability if a client – and, by
    extension, the defendant – lacked permission from the
    copyright holder to make the copies.
    The panel held that the term “willfully” in 
    17 U.S.C. § 506
    (a) requires the government to prove that a defendant
    knew he was acting illegally rather than simply that he knew
    he was making copies, and that to “knowingly” traffic in
    counterfeit labels under 
    18 U.S.C. § 2318
    (a)(1) requires
    knowledge that the labels were counterfeit. Because the
    district court improperly instructed the jury otherwise and the
    errors were not harmless, the panel vacated the convictions
    and remanded.
    The panel concluded that the district court should dismiss
    one of the copyright infringement counts on remand because
    counsel was ineffective by failing to raise an obvious statute-
    of-limitations defense.
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    UNITED STATES V. LIU                       3
    COUNSEL
    David J. Cohen (argued) and Jason T. Campbell, Bay Area
    Criminal Lawyers, PC, San Francisco, California, for
    Defendant-Appellant.
    Jenny Ellickson (argued), Trial Attorney, Melinda Haag,
    United States Attorney, and Barbara J. Valliere, Chief,
    Appellate Division, United States Department of Justice, San
    Francisco, California, for Plaintiff-Appellee.
    OPINION
    NGUYEN, Circuit Judge:
    Julius Liu appeals his convictions and sentence for
    criminal copyright infringement and trafficking in counterfeit
    labels. Liu’s company, Super DVD, commercially replicated
    CDs and DVDs for various clients on a scale that subjects
    him to substantial criminal liability if a client—and, by
    extension, Liu—lacked permission from the copyright holder
    to make the copies.
    Under the relevant criminal statutes, Liu’s guilt turns on
    whether he acted “willfully” and “knowingly.” We hold that
    the term “willfully” requires the government to prove that a
    defendant knew he was acting illegally rather than simply that
    he knew he was making copies. Similarly, to “knowingly”
    traffic in counterfeit labels requires knowledge that the labels
    were counterfeit. Because the district court improperly
    instructed the jury otherwise, we vacate Liu’s convictions and
    remand. We also conclude that the district court should
    dismiss the second count against Liu on remand because his
    4                  UNITED STATES V. LIU
    counsel was ineffective, failing to raise an obvious
    statute-of-limitations defense.
    BACKGROUND
    I. The Replication of CDs and DVDs
    Commercial CD and DVD replication differs from the
    process of recording content onto CDs and DVDs in that pre-
    recorded discs have their content stamped onto them—
    requiring a molding machine and a stamper—rather than
    burned. To create a CD stamper, a process known as
    “mastering,” some source material containing digital content
    is necessary, such as a tape, recordable CD, or music file.
    Counterfeiters making a “straight counterfeit,” i.e., an exact
    copy of an existing CD, can start with either a legitimate or
    counterfeit version of the CD. Counterfeiters making a
    previously nonexistent compilation of tracks take multiple
    legitimate disks and burn the relevant tracks onto a recordable
    CD, which then serves as the source material for the stamper.
    Replication plants process orders for customers, who are
    typically the publishers (or persons purporting to be the
    publishers) who own the reproduction rights to the works in
    question. While a few plants specialize in mastering, most
    deal exclusively with replicating. Plants offering both types
    of services are rare because of the higher cost associated with
    mastering, which requires more expensive equipment, larger
    premises, a clean room environment, and greater expertise to
    operate. A replication plant that does not create stampers
    in-house will outsource the work to a mastering plant.
    UNITED STATES V. LIU                          5
    II. The Investigation of Liu and Super DVD
    Liu has worked in the replication industry since the early
    1990s. In 2000, he founded, and became the CEO of, a
    DVD-manufacturing company called Super DVD. By 2001,
    Super DVD employed about 65 people and operated four
    replication machines at its Hayward, California warehouse.
    In mid-2001, Super DVD fell on hard financial times.
    The manufacturer of one of its replication machines went
    bankrupt and the machine was taken back to Irvine,
    California. Two of the other machines were repossessed
    because Super DVD fell behind on its lease payments. Use
    of the final replication machine was frozen due to a dispute
    over royalties between the machine manufacturer and another
    company. Super DVD’s engineers left for other employment,
    and in 2003 the company did not renew its business license
    with the city. In an effort to lease the factory space, Liu
    showed the property to approximately 10–15 persons per
    week.
    Meanwhile, the government had become suspicious of
    Super DVD’s operations. In May 2003, Immigration and
    Customs Enforcement agents raided the warehouse of Vertex
    International Trading, a computer software reseller based in
    Coral Springs, Florida, where agents recovered counterfeit
    copies of the Symantec software “Norton Anti-Virus 2003”
    and related documentation. The documentation included
    purchase orders, handwritten notes, and FedEx shipping
    labels from more than 50 vendors, including Super DVD.1
    1
    Liu challenges the admissibility of evidence recovered from the
    warehouse. Because we overturn Liu’s convictions on other grounds, we
    do not address Liu’s evidentiary objections.
    6                 UNITED STATES V. LIU
    Later that month, private investigator Cynthia Navarro,
    working on behalf of Symantec, posed as a potential lessee to
    investigate Super DVD’s warehouse. While there, Navarro
    observed a man using one of two machines that she believed
    were used for CD or DVD replication. Through a window,
    she could see into a locked room that was filled wall to wall
    with spindles of CDs.
    At the end of July 2003, agents executed a search warrant
    on the Super DVD warehouse and recovered thousands of
    DVDs and CDs. One room stored CDs and DVDs, and
    another held stampers, artwork, and masters. The CDs
    included a compilation of rap tracks, Rap Masters Vol. 2;
    three compilations of Latin music tracks, Los Tucanes de
    Tijuana: Romanticas, Lo Mejor de la Mafia, and 3 Reyars
    [sic] del Tex Mex: Romanticas; and a greatest hits album,
    Beatles 1. The agents also recovered DVD copies of the film
    Crouching Tiger, Hidden Dragon. Liu did not have
    authorization from the copyright holders to replicate any of
    these works.
    During an interview and at trial, Liu admitted that Super
    DVD manufactured the Crouching Tiger DVDs in 2001 for
    a company called R&E Trading. R&E gave Super DVD a
    stamper with the name “Tiger” on it but not the full title of
    the film. The DVDs were still in Super DVD’s warehouse at
    the time the search warrant was executed because R&E had
    rejected them, claiming that the movies would freeze. Liu
    stated that when R&E refused to pay for the order, he became
    personally involved and realized that R&E did not have the
    rights to duplicate such a famous movie. Super DVD filed a
    lawsuit against R&E alleging that R&E deceived it about the
    copyrights. The lawsuit sought payment from R&E on about
    40 invoices totaling approximately $85,000, including work
    UNITED STATES V. LIU                       7
    done on the Crouching Tiger movie. Super DVD obtained a
    jury verdict for approximately $600.
    Liu generally denied any knowledge of or involvement in
    replicating the other works. Liu explained that he became
    involved with the Latin music compilations when one of the
    former Super DVD engineers introduced Liu to his uncle,
    Juan Valdez, a famous mariachi singer. Liu and Valdez got
    together and played music—Liu on the guitar, Valdez
    singing. Valdez expressed interest in publishing CDs, and Liu
    told him that he didn’t have the facility to do it but suggested
    companies that could take care of the mastering, printing, and
    even the sleeve. Liu volunteered to do the overwrapping for
    Valdez because it only cost him “pennies.” Valdez told Liu
    that he created the tracks by mixing his voice with music
    from a Karaoke machine and that he had paid for the license.
    Liu listened to some of the tracks and, believing that it was
    Valdez’s voice, thought that the music “belong[ed] to him.”
    III.   Liu’s Convictions and Sentence
    The government charged Liu with three counts of
    criminal copyright infringement under 
    17 U.S.C. § 506
    (a)(1)(A) and 
    18 U.S.C. § 2319
    (b)(1) based on the
    music CDs, the Crouching Tiger DVD, and the Norton Anti-
    Virus software. A fourth count alleged that Liu trafficked in
    the counterfeit labels on the software, 
    18 U.S.C. § 2318
    (a).
    Following a three-day jury trial, Liu was convicted on all
    counts. The district court sentenced Liu to four years in
    prison followed by three years of supervised release.
    8                  UNITED STATES V. LIU
    JURISDICTION
    The district court had jurisdiction under 
    18 U.S.C. § 3231
    .
    We have jurisdiction under 
    18 U.S.C. § 3742
     and 
    28 U.S.C. § 1291
    .
    ANALYSIS
    I. The District Court Erred in Instructing the Jury on
    the “Willfulness” and “Knowledge” Elements
    A. Standard of Review
    “When a party properly objects to a jury instruction, we
    review de novo whether the instructions given ‘accurately
    describe the elements of the charged crime.’” United States
    v. Munguia, 
    704 F.3d 596
    , 598 (9th Cir. 2012) (quoting
    United States v. Heredia, 
    483 F.3d 913
    , 921 (9th Cir. 2007)
    (en banc)). A district court’s omission or misstatement of an
    element of an offense in the jury instructions is subject to
    harmless error review. United States v. Wilkes, 
    662 F.3d 524
    ,
    544 (9th Cir. 2011) (quoting United States v. Kilbride,
    
    584 F.3d 1240
    , 1247 (9th Cir. 2009)). We review
    unpreserved errors in the jury instructions for plain error.
    United States v. Phillips, 
    704 F.3d 754
    , 762 (9th Cir. 2012)
    (citing United States v. Moreland, 
    622 F.3d 1147
    , 1166–67
    (9th Cir. 2010)).
    The parties disagree as to whether Liu properly preserved
    an objection to the jury instructions so as to be entitled to de
    novo review. Liu argues that the district court failed to
    provide him an opportunity to object to the jury instructions
    as required under Federal Rule of Criminal Procedure 30(d).
    We agree.
    UNITED STATES V. LIU                       9
    Liu requested an instruction parroting 
    17 U.S.C. § 506
    (a)(2)—that “[e]vidence of reproduction or distribution
    of a copyrighted work, by itself, shall not be sufficient to
    establish willful infringement of a copyright.”           The
    government did not include this language in its proposed
    instruction on the elements of copyright infringement, and
    Liu objected on that basis. The government informed the
    court that it had no problem with Liu’s requested instruction.
    The night before closing arguments, the district court
    emailed counsel a tentative set of jury instructions and
    indicated that it would give them a revised draft in the
    morning if it made additional changes. The next morning,
    before the defense presented its case, the district judge stated
    that “some changes to the instructions [were made]. . . , none
    that I think are of substance.” In fact, the court had made
    several substantive changes. In particular, it added the
    definition of “knowingly” that is now at issue. Previously,
    that instruction had simply stated that the government needed
    to prove that Liu “knowingly trafficked in counterfeit labels
    affixed or designed to be affixed to copies of a copyrighted
    computer software product called ‘Norton Anti-Virus 2003’
    belonging to Symantec Corporation.” The final version of the
    instruction added that
    An act is done “knowingly” if the Defendant
    is aware of the act and does not act through
    ignorance, mistake or accident.          The
    government is not required to prove that the
    defendant knew that his act was unlawful.
    You may consider evidence of the
    Defendant’s words, acts, or omissions, along
    with all the other evidence, in deciding
    whether the defendant acted knowingly.
    10                  UNITED STATES V. LIU
    Besides adding the instruction defining “knowingly,” the
    district court did not include in the final version the
    instruction regarding proof of willful copyright infringement
    requested by Liu and acquiesced to by the government.
    Instead, it added its own explanation of willful infringement
    that incorporated the government’s requested instruction
    defining infringement generally, without a mens rea element.
    The court instructed the jury that Liu “willfully infringed” if
    he “without authorization duplicated, reproduced or sold the
    copyright belonging to the owners of the works.” The court
    further adopted the government’s requested definition of
    willfully—that “[a]n act is done ‘willfully’ if the act is done
    knowingly and intentionally, not through ignorance, mistake
    or accident.”
    There is no indication that the district court distributed a
    copy of the finalized jury instructions to counsel at that or any
    other time until just before instructing the jury. Further, after
    the court delivered the instructions to the jury, it did not ask
    counsel whether there were any objections to them before the
    jury retired to consider its verdict. The court’s procedure
    casts serious doubt upon its compliance with Rule 30(d) and
    due process. See United States v. Loya, 
    807 F.2d 1483
    , 1492
    (9th Cir. 1987); United States v. Nerone, 
    563 F.2d 836
    ,
    847–48 (7th Cir. 1977). Even if Liu’s counsel could have
    objected to the instructions between the time they were
    delivered and the time the jury began deliberating, any
    resultant modification to the instructions would have risked
    calling the jury’s attention to the issue. Under these
    circumstances, Liu was not required to object. See United
    States v. Ramirez, 
    714 F.3d 1134
    , 1137–38 (9th Cir. 2013).
    We thus review for instructional error de novo. 
    Id.
    UNITED STATES V. LIU                     11
    B. The “Willfulness” Element of Criminal Copyright
    Infringement Requires Knowledge that the
    Conduct Was Unlawful
    Copyright infringers have been subject to civil liability
    since the Nation’s founding. See Act of May 31, 1790, ch.
    15, § 2, 
    1 Stat. 124
    , 124–25. In a civil suit, liability for
    copyright infringement is strict. “[T]he innocent intent of the
    defendant constitutes no defense to liability.” Monge v. Maya
    Magazines, Inc., 
    688 F.3d 1164
    , 1170 (9th Cir. 2012) (citing
    4 Melville B. Nimmer & David Nimmer, Nimmer on
    Copyright § 13.08[B][1] (Matthew Bender rev. ed. 2011)).
    Congress first imposed criminal liability for certain types
    of infringement in the late nineteenth century. See Act of
    January 6, 1897, ch. 4, 
    29 Stat. 481
    , 482. The general
    approach to criminal copyright enforcement—then, as
    now—has been to punish only those violations that are both
    willful and economically motivated. See 
    id.
     (punishing as
    misdemeanor infringement that is “willful and for profit”);
    accord Copyright Act of 1976, Pub. L. 94-553, ch. 5,
    § 506(a), 
    90 Stat. 2541
    , 2586 (codified as amended at
    
    17 U.S.C. § 506
    (a)(1)(A)) (imposing criminal liability on
    “[a]ny person who infringes a copyright willfully and for
    purposes of commercial advantage or private financial gain”).
    Of the two factors that distinguish criminal from non-
    criminal copyright violations, willfulness and commerciality,
    the latter is of little practical importance. The Copyright Act
    defines “financial gain” broadly to include “receipt, or
    expectation of receipt, of anything of value, including the
    receipt of other copyrighted works.” 
    17 U.S.C. § 101
    . The
    commerciality requirement thus “does not meaningfully
    winnow down the population of copyright defendants
    12                     UNITED STATES V. LIU
    potentially liable to incarceration . . . . [T]he only bar against
    an overzealous prosecutor criminalizing nearly every
    copyright infringement case lies in the other prerequisite to
    criminal liability:      willfulness.”       4 Nimmer, supra,
    § 15.01[A][2].
    But the term “willfully” is ambiguous.2 See Ratzlaf v.
    United States, 
    510 U.S. 135
    , 141 (1994) (“‘Willful’ . . . is a
    ‘word of many meanings . . . .’” (quoting Spies v. United
    States, 
    317 U.S. 492
    , 497 (1943))). To infringe willfully
    could simply mean to intentionally commit the act that
    constitutes infringement. Alternatively, it could mean that
    the defendant must act with a “‘bad purpose’ or ‘evil motive’
    in the sense that there was an ‘intentional violation of a
    known legal duty.’” United States v. Moran, 
    757 F. Supp. 1046
    , 1048 (D. Neb. 1991) (quoting Cheek v. United States,
    
    498 U.S. 192
    , 200 (1991)). The 1976 Copyright Act does not
    define “willfully,” and its legislative history offers little
    guidance. See 
    id.
     at 1049 n.2.
    When faced with a criminal statute containing an
    ambiguous “willfulness” element, courts normally resolve
    any doubt in favor of the defendant. Ratzlaf, 
    510 U.S. at
    148
    (citing Hughey v. United States, 
    495 U.S. 411
    , 422 (1990)).
    Although the general rule is that “ignorance of the law or a
    mistake of law is no defense to criminal prosecution,” the
    modern proliferation of statutes and regulations “sometimes
    2
    Even within the context of civil copyright infringement, we have
    defined “willful” to mean different things in different contexts. See
    Barboza v. New Form, Inc. (In re Barboza), 
    545 F.3d 702
    , 707–08 (9th
    Cir. 2008) (“The term ‘willful’ as used in copyright infringement cases is
    not equivalent to ‘willful’ as used in determining whether a debt is
    nondischargeable under the bankruptcy code.”).
    UNITED STATES V. LIU                           13
    ma[kes] it difficult for the average citizen to know and
    comprehend the extent of the duties and obligations imposed
    by the . . . laws.” Cheek, 
    498 U.S. at
    199–200. Thus, the
    government must prove that the defendant acted
    “willfully”—that is, with “specific intent to violate the
    law”—to be convicted of certain federal criminal offenses.
    
    Id.
     at 200 (citing United States v. Murdock, 
    290 U.S. 389
    (1933)); see also Bryan v. United States, 
    524 U.S. 184
    ,
    191–92 (1998) (“As a general matter, when used in the
    criminal context, a ‘willful’ act is one undertaken with a ‘bad
    purpose.’ In other words, in order to establish a ‘willful’
    violation of a statute, ‘the Government must prove that the
    defendant acted with knowledge that his conduct was
    unlawful.’” (quoting Ratzlaf, 
    510 U.S. at 137
    ) (footnote
    omitted)).
    In reviewing a conviction for criminal copyright
    infringement, we, and numerous other circuits, have assumed
    that proof of the defendant’s specific intent to violate
    someone’s copyright is required. See United States v.
    Beltran, 
    503 F.3d 1
    , 2 (1st Cir. 2007); United States v.
    Manzer, 
    69 F.3d 222
    , 227 (8th Cir. 1995); United States v.
    Minor, 
    756 F.2d 731
    , 734 (9th Cir. 1985); United States v.
    Gottesman, 
    724 F.2d 1517
    , 1522 (11th Cir. 1984); United
    States v. Whetzel, 
    589 F.2d 707
    , 712 (D.C. Cir. 1978);3 see
    also United States v. Heilman, 
    614 F.2d 1133
    , 1137 (7th Cir.
    3
    Early prosecutions for criminal copyright infringement under the 1976
    Copyright Act also charged the defendants with violating the National
    Stolen Property Act, which criminalizes the interstate transport of goods,
    wares, or merchandise that were “stolen, converted or taken by fraud.”
    
    18 U.S.C. § 2314
    . In Dowling v. United States, 
    473 U.S. 207
     (1985), the
    Supreme Court held that copyright infringement did not constitute theft,
    conversion, or fraud, abrogating Minor, Gottesman, and Whetzel, which
    had held to the contrary.
    14                 UNITED STATES V. LIU
    1980) (holding so). But compare United States v. Backer,
    
    134 F.2d 533
    , 535 (2d Cir. 1943) (finding sufficient evidence
    that the defendant had willfully copied where he “deliberately
    had the copies made and deliberately sold them for profit”),
    with United States v. Rose, 
    149 U.S.P.Q. 820
    , 824 (S.D.N.Y.
    1966) (instructing, notwithstanding Backer, that the
    government must prove the defendant acted “voluntarily and
    purposely and with specific intent to do that which the law
    forbids—that is to say, with bad purpose either to disobey or
    disregard the law”). We now explicitly hold that “willfully”
    as used in 
    17 U.S.C. § 506
    (a) connotes a “voluntary,
    intentional violation of a known legal duty.” Cheek, 
    498 U.S. at 201
     (internal quotation marks omitted).
    The Copyright Act’s legislative history supports our
    interpretation. In 1997, Congress updated the statutory
    provision governing criminal copyright infringement by
    inserting the language that Liu requested: “evidence of
    reproduction or distribution of a copyrighted work, by itself,
    shall not be sufficient to establish willful infringement.” No
    Electronic Theft (NET) Act, Pub. L. 105-147, § 2(b), 111 Stat
    2678, 2678 (1997) (codified as amended at 
    17 U.S.C. § 506
    (c)). This language was in response to the “on-going
    debate about what precisely is the ‘willfulness’ standard in
    the Copyright Act.” 143 Cong. Rec. S12,689 (daily ed. Nov.
    13, 1997) (statement of Sen. Orrin Hatch); see also 
    id. at 12,690
     (statement of Sen. Patrick Leahy) (“This clarification
    was included to address the concerns expressed . . . because
    the standard of ‘willfulness’ for criminal copyright
    infringement is not statutorily defined and the court’s
    interpretation[s] have varied somewhat among the Federal
    circuits.”); H.R. Rep. No. 105-339, at 9 (1997) (explaining
    that the Subcommittee on Courts and Intellectual Property
    amended the bill “to define ‘willful’ misconduct” in response
    UNITED STATES V. LIU                                15
    to “questions concerning the meaning of the word and its
    application in the electronic environment”).4 Upon passage
    of the bill in the Senate, Senator Hatch stated that willful
    “ought to mean the intent to violate a known legal duty. . . .
    As Chairman of the Judiciary Committee, that is the
    interpretation that I give to this term. Otherwise, I would
    have objected and not allowed this bill to pass by unanimous
    consent.” 143 Cong. Rec. S12,689.
    As a practical matter, requiring only a general intent to
    copy as a basis for a criminal conviction would not shield any
    appreciable amount of infringing conduct from the threat of
    prosecution. Civil liability will not lie if an author
    fortuitously creates a work that is substantially similar to
    another author’s copyrighted work. See Airframe Sys., Inc. v.
    L-3 Commc’ns Corp., 
    658 F.3d 100
    , 106 (1st Cir. 2011)
    (“[E]ven when two works are substantially similar with
    4
    Industry representatives and other stakeholders testifying before
    Congress expressed their hope that the term “willful” would be “given the
    interpretation that [the majority of] courts ha[d] given [it] in the criminal
    context,” i.e., “that it is not enough for the defendant in a criminal case to
    have had an intent to copy the work; he must have acted with knowledge
    that his conduct constituted copyright infringement.” Copyright Piracy,
    and H.R. 2265, the No Elec. Theft (NET) Act: Hearing Before the
    Subcomm. on Courts and Intellectual Prop. of the Comm. on the Judiciary
    H.R., 105th Cong. 13–14 (1997) (statement of Marybeth Peters, Register
    of Copyrights); see 
    id. at 157
     (statement of David Nimmer, counsel,
    United States Telephone Association) (“The courts’ divergent
    interpretations of Section 506(a) yield uncertainty . . . . Congress should
    specify that ‘willful’ . . . requires a specific intent to violate a known legal
    duty.”); see also id. at 37 (statement of Brad Smith, Associate General
    Counsel, Microsoft Corp.) (“[W]e are only talking about willful
    infringement of a copyright holder’s rights. . . . [U]nder criminal law a
    willful act requires that it be intentionally done with knowledge that it was
    prohibited by law.”).
    16                  UNITED STATES V. LIU
    respect to protectable expression, if the defendant did not
    copy as a factual matter, but instead independently created the
    work at issue, then infringement liability must be denied.”
    (quoting 4 Nimmer, supra, § 13.01[B]) (internal quotation
    mark omitted)). To infringe a copyright, one must copy the
    protected work. See, e.g., L.A. Printex Indus., Inc. v.
    Aeropostale, Inc., 
    676 F.3d 841
    , 846 (9th Cir. 2012) (“To
    establish copyright infringement, a plaintiff must prove two
    elements: ‘(1) ownership of a valid copyright, and (2)
    copying of constituent elements of the work that are
    original.’” (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
    
    499 U.S. 340
    , 361 (1991))). Copying is of necessity an
    intentional act. If we were to read 
    17 U.S.C. § 506
    (a)’s
    willfulness requirement to mean only an intent to copy, there
    would be no meaningful distinction between civil and
    criminal liability in the vast majority of cases. That cannot be
    the result that Congress sought.
    In the present case, notwithstanding the parties’
    agreement to add an instruction that “[e]vidence of
    reproduction or distribution of a copyrighted work, by itself,
    shall not be sufficient to establish willful infringement of a
    copyright,” 
    17 U.S.C. § 506
    (a)(2), the district court did not
    include the requested language. In fact, the district court
    exacerbated the omission by defining willful infringement
    without the crucial knowledge component:
    In order for the defendant to be found
    guilty of [copyright infringement], the
    government must prove each of the following
    elements beyond a reasonable doubt:
    First, that on a date beginning in 2001 and
    continuing to on or about July 31, 2003, in the
    UNITED STATES V. LIU                        17
    Northern District of California, defendant
    willfully infringed, that is, without
    authorization, duplicated, reproduced, or sold
    compact disks that infringed the copyright
    belonging to the owners of the works . . . .
    By defining “willfully infringed” without any requirement
    that the defendant knew he was committing copyright
    infringement, the district court instructed the jury to apply a
    civil liability standard.
    The district court further compounded this error a short
    time later, instructing the jury that “[a]n act is done ‘willfully’
    if the act is done knowingly and intentionally, not through
    ignorance, mistake, or accident.” We recently considered a
    virtually identical instruction in United States v. Berry,
    
    683 F.3d 1015
     (9th Cir. 2012). The district court had
    instructed the jury that “an act is done willfully if the
    defendant acted or failed to act knowingly and intentionally
    and did not act or fail to act through ignorance, mistake, or
    accident.” 
    Id. at 1021
    . Finding error, we explained that “the
    instruction given merged the concepts of ‘knowing’ and
    ‘willful’ without conveying the culpable state of mind that the
    term ‘willfully’ is designed to invoke in the criminal arena.”
    
    Id.
     (citing Bryan, 
    524 U.S. at 192
    ).
    We conclude that the district court in this case erred by
    defining willfulness such that the jury could have convicted
    Liu without finding that he knew that his actions were
    unlawful.
    18                     UNITED STATES V. LIU
    C. The Instructional Error Was Not Harmless
    Liu’s convictions on the copyright infringement counts
    cannot stand unless the instructional error was harmless. “An
    error in describing an element of the offense in a jury
    instruction is harmless only if it is ‘clear beyond a reasonable
    doubt that a rational jury would have found the defendant
    guilty absent the error.’” Munguia, 704 F.3d at 603–04
    (quoting Neder v. United States, 
    527 U.S. 1
    , 18 (1999)).
    The conclusion was irresistible that the infringing CDs
    and DVDs were replicated in the Super DVD warehouse.
    The discs all were found there with the exception of the
    Norton Anti-Virus software, which was discovered at the
    Vertex warehouse along with purchase orders and shipping
    labels linking it to Liu and Super DVD. Almost all of the
    music CDs bore Liu’s initials, “JL.” Liu admitted to
    reproducing the Crouching Tiger DVDs for R&E Trading,
    and there was a written agreement from early 2001 between
    Super DVD and R&E to press 2,000 copies of the Beatles
    CD. Although Liu claimed to have no knowledge of how the
    other discs were made, suggesting that the orders may have
    been handled by his sales staff, it is unclear whether the jury
    disbelieved him, thought he had forgotten, or found his
    employees’ acts attributable to him.5
    5
    While criminal liability for copyright infringement cannot lie purely on
    the basis of respondeat superior, we note in passing that the district court
    could have given the jury clearer guidance on this issue. It instructed only
    that “[a]n individual is liable for willful infringement even if the conduct
    on which you base your finding of wilful infringement is performed as a
    representative of a corporation.”
    UNITED STATES V. LIU                      19
    Whatever the case, Liu’s state of mind was critical. Liu
    was aware of copyright laws and admittedly had been sued
    for copyright infringement in the past. His guilt thus hinged
    on whether he knew that his clients did not have authorization
    to replicate the disks at issue.
    Liu presented evidence that his customers signed
    agreements stating that they had the copyright to the works in
    question and promising “to be responsible for all copyright
    related legal responsibilities.” His expert witness testified
    that other replicators also rely on such agreements rather than
    carefully investigate each customer. Liu testified that he
    attempted to verify that there were no copyright violations on
    the Latin music compilations by listening to the some of the
    tracks and satisfying himself that it was Valdez’s voice. He
    further claimed that he did not realize R&E’s order for
    Crouching Tiger DVDs was unauthorized until he became
    embroiled in the payment dispute, at which time he filed a
    lawsuit against R&E. The fact that he initiated a lawsuit over
    a dispute involving thousands of infringing copies of
    Crouching Tiger, Hidden Dragon that he created is arguably
    compelling evidence that he did not understand his conduct
    to have been wrongful.
    We cannot say that the jury would not have credited some
    or all of this evidence had the jury appreciated its relevance.
    The evidence may have supported a finding that Liu did not
    know that he was illegally copying copyrighted material and
    thus he did not willfully infringe the copyrights. Therefore,
    the failure to provide a proper willfulness instruction was not
    harmless beyond a reasonable doubt.
    We reject the government’s contention that any error was
    harmless because, on the second day of trial, the district court
    20                 UNITED STATES V. LIU
    correctly described the concept of willfulness to the jury. The
    court stated that “one of the issues in this case [is that] the
    government claims that Mr. Liu did certain conduct willfully,
    which means that he did it intentionally, that he knew what
    was going on and he knew that it was a violation of
    someone’s rights under the copyright laws, or he had good
    reason to know that.” But this statement is itself problematic.
    Having “good reason to know” one is violating the law is not
    tantamount to knowing it.
    Even if the court’s statement accurately conveyed the
    willfulness standard to the jury, a correct statement of the law
    given during trial does not cure an incorrect one delivered
    immediately prior to deliberations. See Seltzer v. Chesley,
    
    512 F.2d 1030
    , 1035 (9th Cir. 1975) (“Erroneous instructions
    can be corrected by the trial judge only by expressly
    correcting them and by directing the members of the jury to
    expunge the erroneous statements from their minds.”); cf.
    Petrocelli v. Angelone, 
    248 F.3d 877
    , 888–89 (9th Cir. 2001)
    (finding that court’s improper statement of the law during
    trial did not violate due process “because the trial judge used
    the correct instruction at the end of trial and because the
    correct instruction was the only instruction given to the jury
    to take with them to the jury room” (quoting Guam v.
    Ignacio, 
    852 F.2d 459
    , 461 (9th Cir. 1988)) (internal
    quotation marks and brackets omitted)).
    Further, the district court’s statement about willfulness
    was made in a context that had nothing to do with the
    elements of criminal copyright infringement. The court was
    in the middle of delivering unrelated comments about
    character evidence. It immediately minimized the need for
    the jury to pay attention to its comments, adding that “[t]hose
    are all things I’ll tell you about when I give you my
    UNITED STATES V. LIU                    21
    instructions on the law.” Thus, it is inconceivable that the
    district court’s partially correct statement on willfulness
    mid-trial overcame the effect of its erroneous statements in
    the oral and written jury instructions given to the jury
    immediately prior to deliberations.
    Accordingly, we vacate Liu’s convictions and sentence
    for criminal copyright infringement on counts one through
    three and remand to the district court. For reasons we will
    explain, count two must be dismissed.
    D. The “Knowingly” Element of Trafficking in
    Counterfeit Labels Requires Knowledge that the
    Items Are Counterfeit
    Liu also challenges the jury instructions on the fourth
    count for trafficking in counterfeit labels. That offense
    requires proof that the defendant acted “knowingly.”
    
    18 U.S.C. § 2318
    (a)(1). Like “willfully,” the word
    “knowingly” is susceptible to more than one meaning in this
    context. It could mean either that the defendant knew that he
    was trafficking or that he knew that the labels were
    counterfeit. We hold that “knowingly” in this context means
    the latter, and thus the government must prove that Liu knew
    the labels were counterfeit.
    The original statute required that the defendant act both
    “knowingly and with fraudulent intent” and, further, that he
    act “knowing the label to have been falsely made, forged, or
    counterfeited.” Act of Oct. 9, 1962, Pub. L. 87-773, § 1, 
    76 Stat. 775
    . The statutory language changed to its current
    form—omitting all of these requirements except that the
    defendant act “knowingly”—in the Piracy and Counterfeiting
    Amendments Act of 1982, Pub. L. 97-180, § 2, 
    96 Stat. 91
    .
    22                 UNITED STATES V. LIU
    The Senate report makes clear that this change was not
    intended to be substantive because the omitted language was
    viewed as superfluous:
    [T]he proposed section 2318 eliminates the
    requirement of fraudulent intent. Instead, it
    would be sufficient if the offense of
    trafficking in counterfeit labels were
    “knowingly” committed. The Department of
    Justice testified before the Committee [on the
    Judiciary] that dropping the fraudulent intent
    requirement would present no problem,
    essentially agreeing with the Committee’s
    view that the fraudulent intent requirement is
    superfluous if one is acting with the
    knowledge that the articles are counterfeit. In
    other words, it would be difficult to conceive
    of a situation in which one could traffic in
    articles knowing that they are counterfeit
    without intending to defraud the purchaser.
    S. Rep. No. 97-274, pt. 5, at 8–9 (1981), reprinted in 1982
    U.S.C.C.A.N. 127, 134–35. Thus, it is clear that Congress
    used “knowingly” to refer to knowledge that the labels were
    counterfeit.
    The district court instructed the jury that it could convict
    Liu on count four only upon a finding that he “knowingly
    trafficked in counterfeit labels affixed or designing to be
    affixed to copies of a copyrighted computer software product
    called ‘Norton Anti-Virus 2003’ belonging to Symantec
    Corporation.” The court then defined “knowingly,” taking its
    instruction from Ninth Circuit Model Criminal Jury
    Instruction 5.6, including the optional second sentence:
    UNITED STATES V. LIU                              23
    “[A]n act is done ‘knowingly’ if the defendant is aware of the
    act and does not act through ignorance, mistake, or accident.
    The government is not required to prove that the defendant
    knew that his act was unlawful” (emphasis added).
    The comment to the model instruction recognizes that
    some offenses require proof that the defendant knew his
    conduct was unlawful, citing United States v. Santillan,
    
    243 F.3d 1125
    , 1129 (9th Cir. 2001), and United States v.
    Turman, 
    122 F.3d 1167
    , 1169 (9th Cir. 1997), abrogated on
    other grounds by Henderson v. United States, 
    133 S. Ct. 1121
    (2013).6
    Turman is analogous to the circumstances here. In that
    case, the district court instructed on money laundering, which
    requires knowledge that the laundered funds were derived
    from wire fraud but not necessarily knowledge that the
    defendant knew money laundering itself was illegal.
    
    122 F.3d at 1169
    . The court informed the jury that to reach
    a guilty verdict it must find that the defendant “knowingly
    engaged or attempted to engage in a monetary transaction
    which [he] knew involved criminally derived property.” 
    Id.
    The district court reiterated the point, stating that “[t]he
    government must prove beyond a reasonable doubt that the
    6
    Turman held that the trial court erred in failing to require proof that the
    defendant knew his conduct was illegal. Despite recognizing the error, we
    found that the error was not plain because the law was unsettled when the
    instructions were given and “an error is not plain unless it would have
    been obvious to a reasonably competent district judge at the time of trial.”
    
    122 F.3d at 1171
    . The Supreme Court recently rejected this reasoning in
    Henderson, holding that “whether a legal question was settled or unsettled
    at the time of trial, it is enough that an error be ‘plain’ at the time of
    appellate consideration” to warrant reversal. 
    133 S. Ct. at 1130
     (internal
    quotation marks omitted).
    24                 UNITED STATES V. LIU
    Defendant knew that the monetary transaction involved
    criminally derived property.” 
    Id.
    But even the unambiguous instruction in Turman about
    what the defendant needed to know did not immunize the
    process from error, because the district court went on to give
    the same instruction that was given here—that the
    government need not prove that the defendant knew his act
    was unlawful. See 
    122 F.3d at 1169
    . Although the defendant
    had not objected to this instruction, we pointed out that it
    constituted error under United States v. Stein, 
    37 F.3d 1407
    ,
    1410 (9th Cir. 1994). Turman, 
    122 F.3d at 1169
    . Stein
    reversed the money laundering convictions of another
    defendant whose jury had received similar instructions
    because “a broad, general definition of ‘knowingly’ might be
    interpreted to allow conviction even where the defendant did
    not know the laundered funds were illegally obtained.”
    Turman, 
    122 F.3d at 1169
     (construing Stein).
    In this case, the instructions regarding knowledge were
    even more problematic than in Turman and Stein because the
    district court never clarified what Liu needed to know, i.e.,
    that the labels were counterfeit. The district court merely
    stated that Liu must have “knowingly trafficked in counterfeit
    labels.” This instruction was at best ambiguous as to whether
    Liu needed to know that the labels were counterfeit or merely
    needed to know that he trafficked in labels that later turned
    out to be counterfeit—a strict liability standard.
    Accordingly, we hold that the district court erred in its
    instruction on knowledge—both because the court failed to
    clarify that “knowingly” referred to knowledge that the labels
    were counterfeit and because it supplied the confusingly
    UNITED STATES V. LIU                     25
    broad statement about the government not needing to prove
    knowledge that we rejected in Turman and Stein.
    This jury instructional error was not harmless beyond a
    reasonable doubt for the same reasons that the willfulness
    instruction was not harmless. There was evidence that Liu
    did not know that the Norton Anti-Virus disks were
    unauthorized which, if accepted by the jury, may have
    resulted in a different outcome. We therefore vacate Liu’s
    conviction and sentence on count four and remand to the
    district court.
    II. Liu’s Ineffective Assistance of Counsel Claims
    Liu asserts that he received ineffective assistance of
    counsel because his trial attorney failed to argue that the
    alleged copyright infringement violations in counts one and
    two were barred by the five-year statute of limitations,
    
    17 U.S.C. § 507
    (a). As a general rule, we do not review
    challenges to the effectiveness of defense counsel on direct
    appeal. United States v. Rahman, 
    642 F.3d 1257
    , 1260 (9th
    Cir. 2011) (citing United States v. Jeronimo, 
    398 F.3d 1149
    ,
    1155 (9th Cir. 2005)). The only exceptions are when “the
    record on appeal is sufficiently developed to permit
    determination of the issue,” or “the legal representation is so
    inadequate that it obviously denies a defendant his Sixth
    Amendment right to counsel.” 
    Id.
     (citing Jeronimo, 
    398 F.3d at 1156
    ). Review, when warranted, is de novo. United States
    v. Benford, 
    574 F.3d 1228
     (9th Cir. 2009) (citing United
    States v. Benlian, 
    63 F.3d 824
    , 826 & n.3 (9th Cir. 1995)).
    26                UNITED STATES V. LIU
    A. Factual Background
    On November 29, 2006, the grand jury returned the
    original indictment, which contained an allegation that Liu
    committed criminal copyright infringement (count one) and
    trafficked in counterfeit labels (count two). It alleged that
    Super DVD reproduced more than 11,000 CDs containing
    copyrighted music and more than 50,000 CDs containing
    copyrighted software programs. The first count alleged that
    on or about July 31, 2003, Liu willfully infringed the
    copyrights of copyrighted music and software including, but
    not limited to, 36 musical tracks and two Norton Anti-Virus
    2003 software programs. The second count alleged that
    beginning on an unknown date and continuing until about
    May 12, 2003, Liu knowingly trafficked in counterfeit labels
    for two Symantec programs.
    On March 12, 2008, the grand jury returned the first
    superseding indictment, which consisted of two counts of
    criminal copyright infringement, one count of trafficking in
    counterfeit labels, and one count of criminal forfeiture and
    destruction, 
    18 U.S.C. §§ 506
    (b), 509(a). The first count
    alleged that beginning on an unknown date and continuing
    until on or about July 31, 2003, Liu willfully infringed
    copyrighted music works, including but not limited to 51
    musical tracks. The second count alleged that beginning on
    an unknown date and continuing until about May 2003, Liu
    willfully infringed the copyrights of two Symantec antivirus
    programs. The third count alleged that beginning on an
    unknown date and continuing until about May 2003, Liu
    knowingly trafficked in counterfeit labels for the two
    Symantec programs.
    UNITED STATES V. LIU                     27
    Lastly, on February 17, 2010, the grand jury returned the
    second superseding indictment, which consisted of three
    counts of criminal copyright infringement and one count of
    trafficking in counterfeit labels. Counts one, three, and four
    approximately corresponded to counts one, two, and three in
    the first superseding indictment. Count two alleged that
    beginning on an unknown date in 2001 and continuing until
    about July 31, 2003, Liu willfully infringed copyrighted
    music works, including but not limited to Crouching Tiger,
    Hidden Dragon. This was the first time that Crouching
    Tiger, Hidden Dragon appeared in an indictment. At trial,
    the district court corrected the second superseding indictment
    so that in the second count “music” was replaced by “motion
    picture.”
    B. Whether the Statute of Limitations Was Tolled
    “Generally speaking, the return of an indictment tolls the
    statute of limitations with respect to the charges contained in
    the indictment.” United States v. Pacheco, 
    912 F.2d 297
    , 305
    (9th Cir. 1990) (citing United States v. Italiano, 
    894 F.2d 1280
    , 1282 (11th Cir. 1990); United States v. Sears, Roebuck
    & Co., 
    785 F.2d 777
    , 778 (9th Cir. 1986)). Tolling continues
    when a superseding indictment on the same charges is
    returned while a previous indictment is still pending. 
    Id.
    (citing Italiano, 
    894 F.2d at 1282
    ).
    “[I]f the counts in the superseding indictment
    ‘broaden[ed] or substantially amend[ed]’ the charges in the
    original indictment, the statute of limitations would not have
    been tolled as to those charges.” 
    Id.
     (alteration in original)
    (quoting Sears, 
    785 F.2d at
    778–79). In contrast, “where the
    counts of an original indictment are simply duplicated
    verbatim into a superseding indictment, the statute of
    28                 UNITED STATES V. LIU
    limitations on those counts is tolled, even if additional counts
    that are subject to no limitations objection are added.” 
    Id.
    (citing United States v. Jones, 
    816 F.2d 1483
    , 1487 (10th Cir.
    1987); Sears, 
    785 F.2d at 779
    ).
    “To determine whether a superseding indictment
    substantially broadens or amends a pending timely
    indictment, . . . it is appropriate to consider ‘whether the
    additional pleadings allege violations of a different statute,
    contain different elements, rely on different evidence, or
    expose the defendant to a potentially greater sentence.’”
    United States v. Yielding, 
    657 F.3d 688
    , 704 (8th Cir. 2011)
    (quoting United States v. Salmonese, 
    352 F.3d 608
    , 622
    (2d Cir. 2003)). The central concern in determining whether
    the counts in a superseding indictment should be tolled based
    on similar counts included in the earlier indictment is notice.
    “If the allegations and charges are substantially the same in
    the old and new indictments, the assumption is that the
    defendant has been placed on notice of the charges against
    him. That is, he knows that he will be called to account for
    certain activities and should prepare a defense.” Pacheco,
    
    912 F.2d at
    305 (citing Italiano, 
    894 F.2d at 1283
    ).
    1. Count One
    With respect to count one, Liu claims that by alleging
    additional music tracks in each successive indictment, the
    government broadened the scope of the conduct at issue. The
    factual record before us is inadequate, however, to address
    the merits of this contention. It is unclear, for example,
    whether and when Liu was on notice of the entire catalogue
    of works recovered from the Super DVD warehouse such that
    once he was accused of infringing certain music CDs he
    would fairly be on notice that others might be added to the
    UNITED STATES V. LIU                     29
    list. Therefore, we decline to address whether Liu’s counsel
    was ineffective for failing to assert a statute-of-limitations
    defense to count one.
    2. Count Two
    As to count two, Liu asserts that he lacked notice that
    Crouching Tiger, Hidden Dragon would be at issue until
    more than five years after the alleged infringement. This
    issue can be resolved on the current record given that it turns
    largely on the language of the indictments rather than on
    factual matters. We therefore proceed to address it.
    We agree with Liu that he had no notice whatsoever that
    he should prepare to be prosecuted for willfully infringing a
    motion picture work until the second superseding indictment.
    He was alleged to have infringed it between 2001 and 2003,
    but the second superseding indictment was not returned until
    2010. The delay in bringing this charge is longer than the law
    permits. See 
    17 U.S.C. § 507
    (a).
    The government argues that the addition of the Crouching
    Tiger, Hidden Dragon allegation “did not meaningfully
    broaden the scope of the original indictment” because the
    original indictment “allude[d]” to the infringement of movies.
    The government is referring to the forfeiture allegation at the
    end of the original indictment that would have required Liu
    to
    forfeit . . . all copies, manufactured,
    reproduced, distributed, sold, or otherwise
    used, intended for use, or possessed with
    intent to use in violation of the offense under
    Section 506(a), and all plates, molds,
    30                 UNITED STATES V. LIU
    matrices, masters, tapes, film negatives, or
    other articles by means of which such copies
    may be reproduced, and all electronic,
    mechanical, and other devices for
    manufacturing, reproducing, and assembling
    such copies, including but not limited to the
    items listed below:
    (1) ODME replication machine—Serial
    Number 98017, Unit Code CDR 2010/00
    Manufacture Year 1998; and
    (2) Hanky Printer—Serial Number
    AA-72B1R, Model Number CD-300
    (emphasis added).
    The inclusion of the word “film negatives” in the middle of
    boilerplate forfeiture language is not nearly enough to have
    put Liu on notice that he was to be subject to copyright
    infringement charges involving motion pictures.
    The government also insists that “there is no material
    difference between music and movies for the infringement
    charged in this case” because “both types of infringement
    required the same kind of equipment and resulted in digital
    copies pressed on discs.” Assuming that the government’s
    factual premise is true—the record is ambiguous—its
    relevance is unclear. Liu took orders from several different
    clients. The Crouching Tiger order was a distinct transaction
    from the ones at issue in the original indictment. Liu might
    have used his equipment to commit any number of similar but
    unconnected crimes. If he had done so and the government
    intended to prosecute him for one of those crimes, it had until
    UNITED STATES V. LIU                              31
    the relevant statute of limitations ran out to charge him.
    Here, it did not.
    Plainly, count two of the second superseding indictment
    was not subject to tolling. Because the alleged conduct
    occurred more than five years earlier, this count was
    time-barred. We can think of no legitimate reason for Liu’s
    trial counsel not to have raised the obvious statute-of-
    limitations defense, and Liu was unquestionably prejudiced
    by the result—he was convicted. Consequently, Liu’s
    counsel was constitutionally ineffective under Strickland v.
    Washington, 
    466 U.S. 668
     (1984).
    We have already vacated Liu’s conviction and sentence
    on count two based on the inadequate willfulness instruction.
    Given that this count is time-barred, we see no reason the
    government should be allowed to retry him on it. On remand,
    the district court should dismiss count two.
    CONCLUSION
    We vacate Liu’s convictions and sentences for criminal
    copyright infringement and trafficking in counterfeit labels.7
    7
    As to counts one and two, Liu challenges the district court’s
    calculations of the infringement amount and the quantity of infringing
    works. We find no error. By default, the infringement amount is
    calculated as the number of infringing copies multiplied by the retail value
    of the infringing work. United States Sentencing Guidelines § 2B5.3, cmt.
    2(B). In certain enumerated circumstances, such as the case here, when
    the infringing item “is a digital or electronic reproduction of the infringed
    item,” the infringement amount is instead calculated as the number of
    infringing copies multiplied by the retail value of the infringed work. Id.
    § 2B5.3, cmt. 2(A)(i)(II). Thus, the district court appropriately valued the
    CDs and DVDs at the retail price of the infringed works. With regard to
    32                    UNITED STATES V. LIU
    We need not address the remaining issues raised on appeal
    and remand this matter to the district court for further
    proceedings consistent with this opinion.
    VACATED and REMANDED with instructions.
    the number of infringing works, in the absence of any evidence suggesting
    that particular purchase orders found at the Vertex warehouse overstated
    the quantity of software produced, the court was entitled to rely on the
    number of sales they reflected. As to the infringing discs found at the
    Super DVD warehouse, the court’s calculation of the number of infringing
    works was supported by both the Super DVD documents and the actual
    CDs and DVDs.
    

Document Info

Docket Number: 10-10613

Citation Numbers: 731 F.3d 982, 108 U.S.P.Q. 2d (BNA) 1371, 2013 WL 5433753, 2013 U.S. App. LEXIS 20011

Judges: Noonan, Fisher, Nguyen

Filed Date: 10/1/2013

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (39)

Ratzlaf v. United States , 114 S. Ct. 655 ( 1994 )

Feist Publications, Inc. v. Rural Telephone Service Co. , 111 S. Ct. 1282 ( 1991 )

United States v. Wilkes , 662 F.3d 524 ( 2011 )

United States v. Ronald H. Pacheco , 912 F.2d 297 ( 1990 )

United States v. Joey Santillan , 243 F.3d 1125 ( 2001 )

Hughey v. United States , 110 S. Ct. 1979 ( 1990 )

Barboza v. New Form, Inc. (In Re Barboza) , 545 F.3d 702 ( 2008 )

United States v. Barbara Gottesman , 724 F.2d 1517 ( 1984 )

the-people-of-the-territory-of-guam-v-juan-p-ignacio-the-people-of-the , 852 F.2d 459 ( 1988 )

United States v. Benford , 574 F.3d 1228 ( 2009 )

United States v. Jose Loya , 807 F.2d 1483 ( 1987 )

United States v. Sears, Roebuck & Company, Inc. , 785 F.2d 777 ( 1986 )

Neder v. United States , 119 S. Ct. 1827 ( 1999 )

Henderson v. United States , 133 S. Ct. 1121 ( 2013 )

United States v. David L. Whetzel , 589 F.2d 707 ( 1978 )

United States v. Moreland , 622 F.3d 1147 ( 2010 )

United States v. John Paul Jones , 816 F.2d 1483 ( 1987 )

United States v. Nelson Italiano , 894 F.2d 1280 ( 1990 )

United States v. Alex v. Stein , 37 F.3d 1407 ( 1994 )

United States v. Moran , 757 F. Supp. 1046 ( 1991 )

View All Authorities »