United States v. Stephen Ward , 645 F. App'x 539 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 23 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30154
Plaintiff - Appellee, D.C. No. 2:11-cr-02123-RMP-1
v.
MEMORANDUM*
STEPHEN MARTY WARD, AKA
Stephen Martin Ward
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
Argued and Submitted February 1, 2016
Seattle, Washington
Before: KOZINSKI and O’SCANNLAIN, Circuit Judges, and ORRICK,** District
Judge.
1. Ward did not timely object to the sufficiency of the indictment.
Accordingly, we review for plain error, United States v. Leos-Maldonado, 302
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable William Horsley Orrick III, District Judge for the U.S.
District Court for the Northern District of California, sitting by designation.
page 2
F.3d 1061, 1064 (9th Cir. 2002), “liberally construing the indictment in favor of
validity,” United States v. Arnt, 474 F.3d 1159, 1162 (9th Cir. 2007) (internal
alterations omitted). Ward has not shown that he was prejudiced by any deficiency
in the indictment’s description of the alleged trade secrets. See United States v.
Velasco-Medina, 305 F.3d 839, 847 (9th Cir. 2002).
2. There was no constructive amendment at trial. “A constructive
amendment occurs when the defendant is charged with one crime but, in effect, is
tried for another crime.” United States v. Lazarenko, 564 F.3d 1026, 1034 (9th
Cir. 2009). “For a constructive amendment to inhere, jury instructions must
diverge materially from the indictment and evidence must have been introduced at
trial that would enable the jury to convict the defendant for conduct with which he
was not charged.” United States v. Alvarez-Ulloa, 784 F.3d 558, 570 (9th Cir.
2015) (internal quotation marks omitted); see also United States v. Ward, 747 F.3d
1184, 1191 (9th Cir. 2014). The indictment in this case described the alleged trade
secret information as “information related to the maintenance and operation of
unmanned aircraft systems developed by Insitu Incorporated.” Neither the jury
instructions nor the special verdict form diverged materially from this language in
describing the specific trade secrets that Ward converted. Nor was there evidence
introduced at trial that enabled the jury to convict Ward based on trade secret
page 3
information beyond the scope of that described in the indictment.
3. Ward’s contention that there was a variance at trial also fails. “A
variance occurs when the charging terms of the indictment are left unaltered, but
the evidence offered at trial proves facts materially different from those alleged in
the indictment.” United States v. Wilbur, 674 F.3d 1160, 1178 (9th Cir. 2012)
(internal quotation marks omitted). The evidence presented at trial did not show
that Ward had converted trade secrets materially different from “information
related to the maintenance and operation of unmanned aircraft systems developed
by Insitu Incorporated.”
4. Ward did not timely raise the issue of duplicity with the district court.
“Where a defendant fails to object to an indictment as duplicitous before trial and
fails to object to the court’s jury instructions at trial, we review for plain error.”
United States v. Arreola, 467 F.3d 1153, 1161 (9th Cir. 2006). Given that the jury
instructions and special verdict form required the jury to unanimously agree on
which particular trade secrets Ward had converted, any duplicity error in the
indictment is not grounds for reversal under the plain error standard. See United
States v. Kennedy, 726 F.2d 546, 548 (9th Cir. 1984) (finding no plain error in an
allegedly duplicitous indictment where the jury instructions eliminated any “danger
that the jury could convict . . . without reaching unanimous agreement on a given
page 4
set of facts”).
5. Ward challenges the sufficiency of the evidence, which we review de
novo. United States v. Bennett, 621 F.3d 1131, 1135 (9th Cir. 2010). “A claim of
insufficient evidence fails if after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Id. (internal quotation marks and
emphasis omitted). Viewed in the light most favorable to the prosecution, the
evidence at trial was sufficient to allow a rational juror to conclude that Ward was
guilty of violating 18 U.S.C. § 1832(a)(2). Ward’s argument regarding the
meaning of “public” as used in 18 U.S.C. § 1839(3)(B) is also without merit; the
district court did not commit plain error by not delivering a sua sponte instruction
defining “public” as “economically relevant public.”
6. Ward contends that the district court erred by sequencing the special
verdict form as it did. “We treat verdict forms like jury instructions, the
formulation of which we review for abuse of discretion.” United States v. Stinson,
647 F.3d 1196, 1218 (9th Cir. 2011) (internal citations omitted). “Jury
instructions, even if imperfect, are not a basis for overturning a conviction absent a
showing that they prejudiced the defendant.” United States v. Cherer, 513 F.3d
1150, 1155 (9th Cir. 2008). The special verdict form and jury instructions allowed
page 5
the jury to convict only if it unanimously found that one or more of the alleged
trade secrets qualified for trade secret protection. Viewed as a whole, the special
verdict form and jury instructions were not misleading or inadequate, and they did
not prejudice Ward.
7. We reject as meritless Ward’s challenges under the First and Fifth
Amendments for violation of his due process, free speech, and “self-
representation” rights.
AFFIRMED.