United States v. Todd Fries

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10116
Plaintiff-Appellee,
D.C. No.
v. 4:11-cr-01751-
CKJ-CRP-1
TODD RUSSELL FRIES, AKA Todd
Burns,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted February 11, 2014
Submission Withdrawn and Deferred February 12, 2014
Resubmitted February 13, 2015
San Francisco, California
Filed March 30, 2015
Before: Richard C. Tallman and Johnnie B. Rawlinson,
Circuit Judges, and Marvin J. Garbis, Senior District
Judge.*
Opinion by Judge Rawlinson
*
The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
2 UNITED STATES V. FRIES
SUMMARY**
Criminal Law
The panel affirmed the defendant’s convictions and
sentence for using a chemical weapon in violation of 18
U.S.C. § 229(a) and making false statements to the FBI in
violation of 18 U.S.C. § 1001.
The panel held that the prosecution pursuant to § 229,
which was enacted as part of the Chemical Weapons
Convention Implementation Act of 1998, was within the
federal government’s prosecutorial authority, and that
Congress has the constitutional authority to proscribe the
conduct in which the defendant engaged. The panel wrote
that unlike the defendant in Bond v. United States, 134 S. Ct.
2014), the defendant did not engage in purely local criminal
activity resulting in minor injury to a single individual; rather,
his detonation of chlorine bombs requiring the evacuation of
an entire neighborhood had “the potential to cause severe
harm to many people.”
Interpreting the plain language of the statute, the panel
held that the district court properly rejected the defendant’s
requested jury instruction that § 229(c) required the
government to prove that defendant’s criminal act was against
property owned, leased, or used by the United States. The
panel explained that the requested instruction was legally
untenable because § 229(c) states the jurisdictional elements
in the disjunctive.
**
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. FRIES 3
The panel held that the district court properly denied the
defendant’s motion to suppress evidence seized pursuant to
a search warrant. The panel wrote that the information
supporting probable cause to search was not stale because it
was based on the defendant’s continuing pattern of criminal
conduct, and that the warrant application sufficiently limited
the agents’ discretion in conducting their search of the
defendant’s residence, computers, and business records.
The panel held that the district court correctly held that
the statements of the defendant’s co-participant were
admissible pursuant to Fed. R. Evid. 801(d)(2)(E) as co-
conspirator statements even though the indictment did not
allege a conspiracy count. The panel held that the district
court also acted within its discretion in rejecting the
defendant’s proffered missing evidence instruction as lacking
the requisite legal and factual support.
The panel rejected the defendant’s contention that
application of a two-level obstruction of justice enhancement
pursuant to U.S.S.G. § 3C1.1 constituted impermissible
double-counting, where the chemical-weapons count and the
false-statement count were properly grouped pursuant to
U.S.S.G. § 3D1.2, the enhancement was applied to the
defendant’s conviction for use of chemical weapons, and the
defendant’s conviction for making a false statement did not
fully encompass his obstructive conduct.
4 UNITED STATES V. FRIES
COUNSEL
Richard C. Bock, Tucson, Arizona, for Plaintiff-Appellant.
John S. Leonardo, United States Attorney, District of
Arizona, Robert L. Miskell and Peter D. Sax (argued),
Assistant United States Attorneys, Tucson, Arizona, for
Defendant-Appellee.
OPINION
RAWLINSON, Circuit Judge:
Appellant Todd Russell Fries (Fries) challenges his
convictions for using a chemical weapon in violation of
18 U.S.C. § 229(a) and making false statements to the Federal
Bureau of Investigation (FBI) in violation of 18 U.S.C.
§ 1001. Fries contends that Congress exceeded its authority
when it passed 18 U.S.C. § 229(a) to criminally enforce
provisions of the Chemical Weapons Convention. Relatedly,
Fries asserts that the district court erred in rejecting his
proffered jury instruction on the jurisdictional requirements
of 18 U.S.C. § 229(a).
Fries also maintains that the district court erred in denying
his motion to suppress evidence seized at his residence
pursuant to a stale and overbroad search warrant. In addition,
Fries contends that a new trial is warranted because the
district court erred in admitting a co-conspirator’s statements,
and in rejecting his proffered instruction premised on the
FBI’s failure to record the phone call serving as the basis for
the false statements charge.
UNITED STATES V. FRIES 5
Finally, Fries posits that the district court erred in
applying a two-level sentencing enhancement for obstruction
of justice. We affirm Fries’ convictions and sentence.
I. BACKGROUND
A. Indictment
Count One of the second superseding indictment alleged
that Fries:
did knowingly develop, produce, and
otherwise acquire, transfer directly or
indirectly, receive, stockpile, retain, own,
possess, use, and threaten to use a chemical
weapon, namely a combination of a
chlorinated cyanuric acid and an unknown
reactive chemical component, which when
combined, created airborne toxic chemicals,
including chlorine not intended for peaceful
purposes, protective purposes, unrelated
military purposes or law enforcement
purposes as described in 18 U.S.C. § 229F(7),
by placing a device on the driveway in front
of the garage and on the back porch of [a]
residence . . . [i]n violation of 18 U.S.C.
§§ 229(a) and 2.
Count Two alleged that Fries “did knowingly and
willfully make false, fraudulent, and fictitious material
statements and representations, in a matter within the
jurisdiction of the Federal Bureau of Investigation” in
violation of 18 U.S.C. § 1001(a)(2). According to the
indictment, Fries “while impersonating another individual
6 UNITED STATES V. FRIES
(initials M.F.) called the Federal Bureau of Investigation and
falsely implicated a third person (initials J.C.N.) for the use
of chemical weapons . . . knowing that J.C.N. had no
connection to the offense . . . when, in fact, [Fries] was
responsible for the use of the chemical weapons.”1
B. Pre-Trial Motions
1. Motion To Dismiss Counts One and Two of the
Indictment
Fries sought dismissal of Counts One and Two for lack of
subject matter jurisdiction. Fries asserted that the federal
government lacked jurisdiction over the alleged conduct
because the requisite interstate commerce nexus was absent.
Fries also maintained that he had been charged with “a state
court criminal offense, that is miscast as a federal crime. . . .”
The district court rejected Fries’ challenge, holding that
18 U.S.C. § 229 “is constitutional pursuant to the federal
government’s Treaty Power under Article II, § 2 of the
United States Constitution in conjunction with the Necessary
and Proper Clause, Article I, § 8.” (citation omitted).
1
Counts Three and Four charged Fries with the knowing possession of
destructive devices that were not registered in the National Firearms
Registration and Transfer Record in violation of 18 U.S.C. §§ 5861(d) and
5871. The district court granted Fries’ motion to sever Counts Three and
Four. Fries challenged his conviction on these counts in a separate appeal,
No. 13-10654.
UNITED STATES V. FRIES 7
2. Motion To Suppress
In his motion to suppress evidence seized from his
residence, Fries maintained that the information supporting
the search warrant was impermissibly stale. Fries noted that
he was charged with use of a chemical weapon at the
residence of a former customer on August 2, 2009, and the
search warrant was not sought until May 11, 2011. Fries also
attacked the search warrant as overbroad, because the items
to be seized included all of Fries’ computers and computer
equipment, although Fries was not charged with a computer-
related offense.
According to the search warrant affidavit, prepared by
FBI Special Agent Brian Nowak, Myles and Karen Levine
first encountered Fries when they utilized his company to
resurface their driveway. The Levines were dissatisfied with
the resurfacing and “stopped payment on a check made
payable to Fries in the amount of $200.00.” Thereafter, on
August 2, 2009, the Pima County Sheriff’s Department
received emergency calls reporting a “strong chemical smell”
emanating from a residential area in Tucson, Arizona.
“Investigators found a large pile of burning, gas emitting
debris in front of the closed garage door at the front of the
Levine’s [sic] home, and a bucket containing burning, oozing
debris on the back patio.” “The two burning devices together
created a very large, thick plume of grayish, white colored
cloud. Spread throughout the front driveway, sidewalk and
walkway leading to the front door was a thick, viscous, slimy
material, which appeared to be a combination of paint and
motor oil, plus foam peanuts.” “Also strewn in the front of
the home were dead animal carcasses including a rabbit, cat,
coyote and numerous woodpeckers.” Offensive graffiti was
painted on the front of the house, including a swastika. “The
8 UNITED STATES V. FRIES
front door, windows and garage door of the Levine’s [sic]
home were all sealed shut with a foam expanding seal,
thereby preventing the Levine’s [sic] from escaping through
the front of the house.”
Special Agent Nowak conveyed that two days after the
incident, a person purporting to be Michele Fuentes,
contacted the FBI in Tucson professing to have information
about the incident. The individual stated that, when she was
working for the Levines, Mr. Levine asked her “to engage in
sex acts.” She declined the request and informed Mrs.
Levine. She also stated that the Levines failed to pay her for
her cleaning services and that Mrs. Levine threatened to
report her to “Immigration Services.” Upset with the
Levines, Fuentes reportedly informed her cousin Joaquin
Contreras-Navarette about the situation. She described
Joaquin as an extremely violent person, who had admitted
stealing a large amount of chlorine tablets and placing them
in buckets around the Levines’ residence. Although Fuentes
described herself as a Mexican National, she spoke perfect
English without an accent. It also appeared to the agent that
the caller was a man attempting to sound like a female.
According to Special Agent Brian Nowak, “[a] nearly
identical attack occurred [previously] on November 1, 2008.”
“[M]otor oil, paint, grease, feces, dead animals and foam
packing peanuts had been strewn on the driveway leading up
to the front door of [the Levine] home . . .” That attack also
included offensive and racist graffiti painted on the house and
curb area. “A woman’s wallet, covered with paint, was found
next to the driveway. Inside was a drivers license issued to
Kayln Hovey . . . and other personal items.” When
investigators interviewed Hovey, she identified the drivers’
UNITED STATES V. FRIES 9
license and other items as hers, but not the wallet. Agents
confirmed that Hovey’s wallet was stolen in October, 2005.
Agent Nowak added that on April 28, 2011, an attack
similar to the 2008 and 2009 attacks on the Levines was
perpetrated on another of Fries’ former customers who was
dissatisfied with Fries’ work and refused to pay. Present at
the scene was a small black wallet containing business cards
and a driver’s license. When Agents interviewed the female
whose license was found at the scene, they learned that she
had lost her driver’s license in December, 2010.
Agent Nowak also related that confidential sources had
provided information concerning Fries’ frequent use of a
laptop and his stockpiling of “buckets, used oil, feces and
dead animals at his home for future attacks” similar to those
described in the search warrant affidavit.
Based on the information in his affidavit, Agent Nowak
sought a search warrant for Fries’ residence and for vehicles
that Fries utilized in his business. The items to be seized
included “[a]ny written material that describes how to
produce, make or manufacture bombs, chemical weapons or
destructive devices,” as well as Fries’ computers and
computer equipment. After the search warrant was executed,
Fries filed a motion to suppress the seized evidence.
The magistrate judge recommended denying Fries’
motion to suppress. The magistrate judge concluded that the
information supporting the search warrant was not stale,
because Fries was alleged to have engaged in a continuing
pattern of criminal conduct involving similar incidents of
harassment of former customers. The magistrate judge also
10 UNITED STATES V. FRIES
determined that the search warrant was not overbroad and
that the good faith exception applied in any event.
The district court adopted the magistrate judge’s report
and recommendation and denied Fries’ motion to suppress.
The district court held that the supporting information for the
search warrant was not stale because it was premised on three
similar incidents in which Fries’ “dissatisfied customers . . .
found their homes vandalized,” and “[a] similar modus
operandi was used each time. . . .” The district court
determined that Fries engaged in a pattern of conduct that
continued “until two weeks prior to the date of the search
warrant . . .” The district court also opined that the search
warrant was reasonably specific because it sufficiently
delineated each item to be seized, and that seizure of the
delineated items was supported by probable cause.
C. Trial Testimony and Verdict
Myles Levine testified regarding the details of the
incidents that occurred in 2008 and 2009.
Deputy Sheriff Edward Muszala testified that when he
responded to the 2008 incident, he observed that the driveway
was covered with motor oil and packing peanuts and that
there was graffiti on the curb area. The garage door had
“additional graffiti” including “spray painting, male and
female genitals, plus the swastikas and anarchy sign.”
Officer Muszala also noticed “a very bad smell of dead
animals, and motor oil . . .” As Officer Muszala approached
the front door, he observed “a pile of dead animals.”
John Bradley, a crime scene specialist, described his
discovery of a paint can that contained three latent
UNITED STATES V. FRIES 11
fingerprints, one of which belonged to Fries. Bradley also
found a driver’s license issued to Kayln Hovey in a wallet
near the Levines’ residence.
As previously noted, although Hovey recognized her
driver’s license, she conveyed that the wallet did not belong
to her. Hovey testified that she was in a car accident in
October, 2005, and that when she was in the hospital, her
wallet went missing from her purse.
Two days after interviewing Hovey, Officer James Paul
described receiving a 911 telephone call from an individual
who identified herself as Hovey. Detective Paul did not
believe that the person was actually Hovey.
Mr. Levine informed the jury that after the 2008 incident,
they moved to a different gated community. On August 2,
2009, Mr. Levine went to sleep at approximately 6:00 p.m.
after receiving kidney dialysis. Mr. Levine was awakened by
his wife “screaming hysterically . . .” The Levines were
unable to “get out the front door” of their residence and called
the police. The Levines were also unable to open their garage
door. After detecting a chemical smell, the Levines exited
their home through the back patio, where they “saw
something burning . . .” Mr. Levine also noticed that the
front of the residence was “on fire.” Mr. Levine was forced
to seek medical attention due to the burning in his eyes and
throat.
Deputy Kenneth Atwell of the Pima County Sheriff’s
Department testified that in 2009 he responded to a “public
hazard call” describing “a chemical pool smell, chlorine smell
in the air . . .” When he approached the area in his vehicle,
Deputy Atwell noticed a strong chemical smell even though
12 UNITED STATES V. FRIES
the windows of his vehicle were closed. Deputy Atwell
subsequently received “a criminal damage call” at the
Levines’ residence. When Deputy Atwell arrived, he noticed
“graffiti all over the garage, on the walls . . . expanding foam
sealant around the garage, a big bucket, like a chlorine bucket
in the driveway [and] foam peanuts all over the whole front
of the yard and the walkway and everywhere in the front.”
The bucket in the front driveway was “popping and oozing”
and emitting smoke. When Deputy Atwell went to the back
of the residence, Mrs. Levine opened the back door and
screamed for help. As Deputy Atwell approached a small
fence at the back of the residence, he noticed another bucket
in the backyard that was “oozing and [ ] popping” with “a
little smoke trail . . . very scary looking.” While he was
assisting the Levines over a wall in the back of their
residence, Deputy Atwell observed “a massive grayish-
yellow-white cloud” near the front of the residence. Deputy
Atwell subsequently donned a gas mask and assisted with
evacuating the entire neighborhood.
Deputy Christopher McCracken of the Pima County
Sheriff’s Department also responded to the 2009 incident.
Deputy McCracken observed “a very dark cloud” at the front
of the residence that “was increasing in size dramatically.”
He also noticed that the cloud had covered the entire cul de
sac and that there was a “very strong, chlorine smell.”
Deputy McCracken donned a gas mask and also assisted in
evacuating the neighborhood. During the evacuation, Deputy
McCracken suffered irritation to his eyes, nose, and throat.
Sergeant Stephen Carpenter of the Pima County Sheriff’s
Department observed “a cloud of an enormous proportion that
basically had enclosed and enveloped [the] whole area” near
the Levines’ residence. From an elevated position, Sergeant
UNITED STATES V. FRIES 13
Carpenter observed that the cloud was “moving slowly” and
spreading into other parts of the neighborhood. When
Sergeant Carpenter approached the area near the Levines’
residence, his “throat started to burn, [his] eyes burned. The
skin on [his] face burned,” and he experienced difficulty
breathing.
Bert Rucker, who was a member of the fire district’s
hazardous material unit, was dispatched to the Levines’
residence. Rucker stopped before reaching the Levines’
home because he observed a dense cloud that “was
approximately 30 feet high, 40 feet wide, and several hundred
feet long, and hanging close to the ground.” Rucker related
that, after he observed on the back porch “a large five-gallon
bucket that was fuming,” his captain “initiated . . . a
HAZMAT alarm” for additional emergency resources,
including a battalion chief, a safety officer, “two or three
more fire engines,” and a “hazardous materials truck . . .”
Levi Cranford, a firefighter, accompanied Rucker to the
Levines’ residence. Cranford observed a chlorine bucket that
was still smoking at the back of the Levines’ home.
Approximately two hours after being dispatched, Cranford
donned a protective suit that prevented “any exposure . . . to
the outside atmosphere” and entered the back of the Levines’
residence to take samples. Cranford related that his testing
equipment did not register any chlorine readings inside the
house. However, when he entered the garage, the alarms on
his equipment for chlorine gas went off. The alarm “meant
. . . that the environment . . . was higher than the
recommended level that any person should be in outside of a
Level A suit.”
14 UNITED STATES V. FRIES
Sergeant Christopher Rogers, a bomb technician with the
Pima County Sheriff’s Department, was also dispatched.
Utilizing a robot with chemical detection equipment, Sergeant
Rogers confirmed the positive reading for chlorine near the
Levines’ garage. According to Sergeant Rogers, the use of a
sealed chlorine bucket intensified the dispersion of chlorine
gas as the bucket exploded. Sergeant Rogers observed that the
“multiple five-gallon containers” had “the great potential to
cause serious physical injury or death.”
Battalion Chief Heath Evans tracked the chemical cloud
and described it as approximately “1,000 feet long, 100 feet
high, and roughly 200 feet deep.” There was no visibility
through the cloud. It was “one big solid mass . . . [that] was
just kind of hanging over the neighborhood.” Chief Evans
tracked the cloud for “roughly an hour” until “it ended up in
the Santa Cruz River about three and a half miles away.”
Dr. Frank Walter, a medical toxicologist and emergency
medical physician, testified that chlorine gas is toxic and
qualifies as a chemical that may be immediately dangerous to
life and health at certain levels.
Detective Alexander Tisch testified that he found a black
day planner near the Levines’ residence. The day planner
contained a driver’s license for Michele Fuentes, business
cards for Debbie’s Cleaning Service, and a check from
Fuentes made out to Karen Levine with a notation “refund
customer unhappy.” Fries’ latent fingerprint was found on
the check.
On August 4, 2009, FBI Agent Jon Edwards, the
complaint duty agent for the FBI’s Tucson office, received an
“unusual phone call” from “a male trying to impersonate a
UNITED STATES V. FRIES 15
female voice.” Although Agent Edwards attempted to record
the call, “[t]he recording volume was turned all the way off
to zero, so the recording was essentially ineffective.” The
caller identified himself as “Michelle [sic] Fuentes” and
stated that he had information concerning the incident at the
Levines’ residence. The caller stated that Mr. Levine had
approached Fuentes in “a sexual manner,” and Mrs. Levine
“threatened to call Immigration” when Fuentes reported Mr.
Levine’s conduct to her. The caller stated that her cousin,
Joaquin Contreras-Navarette, was responsible for the chlorine
attack on the Levines’ residence.
Agent Edwards traced the call to a Tucson hospital. A
nurse at the hospital informed FBI agents that she had noticed
an unauthorized individual on the floor from which the phone
call was made. The FBI agents showed the nurse a
photograph of Fries’ driver’s license and the nurse identified
Fries as the man she saw in the hospital. Fries’ latent
fingerprint was also found on the hospital telephone.
Fuentes testified that, in 2007, her purse was stolen while
she was attending college. The purse contained her driver’s
license, social security card, checks, and a day planner.
Fuentes related that the check found at the Levines’ residence
was not in her handwriting. Fuentes did not know anyone
with the name “Joaquin Navarette” and she had never worked
for a cleaning service.
Edward Trujillo testified that he worked for Fries from
2006 to 2008. Trujillo related that Fries was “very upset”
when a check from the Levines was cancelled. Fries told
Trujillo that “he wanted to make [the Levines] pay for not
paying him.” According to Trujillo, Fries “started collecting
materials” including motor oil to pour on the Levines’
16 UNITED STATES V. FRIES
driveway. Fries asked his employees “to defecate in buckets
so he could use it for the Levine’s [sic] driveway, also.” Fries
showed Trujillo “road kill” Fries had collected, including a
coyote. Fries informed Trujillo that “[h]e wanted to pour oil
all over the [Levines’] driveway and . . . spray paint on the
house itself and put dead animals around the windows.” Fries
referred to his plans as “the Levine project.” According to
Trujillo, Fries called the Levines and thanked them for their
payment so the Levines would not suspect him of the
vandalism.
Austreberto Montiel testified that he worked for Fries
from 2006 to 2009. Montiel confirmed that Fries was upset
that the Levines had not fully paid him. Fries asked Montiel
and other workers to collect motor oil and dead animals to
place at the Levines’ residence. Montiel had a conversation
with Dan Jordan about “road kill” and that Fries instructed
Jordan to collect a dead coyote from the road. Fries offered
Montiel $100 to participate in the vandalism at the Levines’
residence, but Montiel declined. Montiel conveyed that
Jordan and Fries discussed vandalizing the Levines’ home on
Halloween night.
After vandalizing the Levines’ home, Fries told Montiel
that he had spray painted the Levines’ residence with
swastikas and “[s]omething about Jews” so that the
appearance of a hate crime would divert the investigation.
Fries also informed Montiel that he had left someone else’s
identification at the residence “to throw off the investigation.”
At the conclusion of the trial, the jury convicted Fries of
Counts One and Two of the indictment.
UNITED STATES V. FRIES 17
D. Sentencing
The total offense level for Fries’ offense was 34. A two-
level enhancement for obstruction of justice was
recommended because Fries “willfully obstructed or
attempted to obstruct the administration of justice by
impersonating another individual during a telephone call to
authorities about the instant offense, knowing the individual
had no involvement in the matter.” An obstruction of justice
enhancement was also recommended because Fries “willfully
obstructed or impeded, or attempted to obstruct or impede,
the administration of justice with respect to the investigation,
prosecution, or sentencing of the instant offense of
conviction, and the obstructive conduct related to [Fries’]
offense of conviction and relevant conduct; or a closely
related offense . . .”
Fries objected to imposition of an enhancement for
obstruction of justice. Fries maintained that the enhancement
constituted improper double-counting because the substantive
offense alleged in Count Two of the indictment was also
premised on Fries’ phone call to the FBI.
The district court overruled Fries’ objection to the
obstruction of justice enhancement. The district court held
that the enhancement was warranted irrespective of Fries’
false statement conviction due to Fries’ obstruction of the
investigation.
The district court adopted the presentence report and
calculated a base offense level of 28 and an adjusted offense
level of 34, with a criminal history category of one. The
corresponding Sentencing Guidelines range was 151 to 188
months and the district court sentenced Fries to “151 months
18 UNITED STATES V. FRIES
on Count 1, and 60 months on Count 2 to run concurrently.”
Fries filed a timely notice of appeal.
II. STANDARDS OF REVIEW
“We review de novo the constitutionality of a statute.”
United States v. Chovan, 735 F.3d 1127, 1131 (9th Cir. 2013)
(citation omitted). “We also review de novo constitutional
challenges to a district court’s denial of a motion to dismiss.”
Id. (citation omitted).
“We review the district court’s denial of a motion to
suppress de novo.” United States v. Arreguin, 735 F.3d 1168,
1174 (9th Cir. 2013) (citation omitted). “We review the
district court’s factual findings underlying the denial for clear
error . . .” Id. (citation omitted).
“We review evidentiary rulings for abuse of discretion,
though we review de novo the district court’s interpretation
of the Federal Rules of Evidence.” United States v. Kahre,
737 F.3d 554, 565 (9th Cir. 2013) (citation and alteration
omitted).
“We review the language and formulation of a jury
instruction for an abuse of discretion. However, when jury
instructions are challenged as misstatements of law, we
review them de novo.” United States v. Cortes, 757 F.3d 850,
857 (9th Cir. 2014), as amended (citations, alteration, and
internal quotation marks omitted).
“We review a district court’s refusal to give an adverse
inference instruction, when properly raised by the appellant,
for abuse of discretion. . . .” United States v. Sivilla, 714 F.3d
1168, 1172 (9th Cir. 2013) (citation omitted).
UNITED STATES V. FRIES 19
“We review the district court’s interpretation of the
Sentencing Guidelines de novo and its factual findings for
clear error. . . .” United States v. Huang, 687 F.3d 1197, 1202
(9th Cir. 2012) (citation omitted).
III. DISCUSSION
A. Jurisdictional Challenge
Fries contends that the district court erred in denying his
motion to dismiss the indictment for lack of federal
jurisdiction. Fries asserts that the government improperly
applied 18 U.S.C. § 229(a) to Fries’ crimes against another
person’s private property.2
18 U.S.C. § 229 was enacted as part of the Chemical
Weapons Convention Implementation Act of 1998. See Bond
v. United States, 134 S. Ct. 2077, 2083, 2085 (2014). The
Chemical Weapons Convention evolved from a consensus in
the international community after World War I that the use of
chemical weapons should be forever banned. See id. at 2083.
The resulting 1925 Geneva Protocol prohibited the use of
chemicals as weapons of war. See id. Unfortunately, the
Geneva Protocol did not curb the use of chemical weapons as
envisioned. Thus, the international community reconvened
2
Pursuant to 18 U.S.C. § 229(a) (1998):
it shall be unlawful for any person knowingly– (1) to
develop, produce, otherwise acquire, transfer directly or
indirectly, receive, stockpile, retain, own, possess, or
use, or threaten to use, any chemical weapon; or (2) to
assist or induce, in any way, any person to violate
paragraph (1), or to attempt or conspire to violate
paragraph (1).
20 UNITED STATES V. FRIES
“to update the Geneva Protocol’s protections and to expand
the prohibition on chemical weapons beyond state actors in
wartime. . . .” Id. at 2084 (citation omitted). Because the
Convention was not self-executing, legislative action was
required to implement the provisions of the Convention in
this country. See United Nations Convention on the
Prohibition of the Development, Production, Stockpiling, and
Use of Chemical Weapons and on their Destruction, art. 7(1),
Jan. 13, 1993, 32 I.L.M. 800, 810, available at 1993 WL
720503 (“Each State Party shall, in accordance with its
constitutional processes, adopt the necessary measures to
implement its obligations under this Convention . . .”).
Congress executed the provisions of the Convention by
enacting 18 U.S.C. § 229. As noted by the Supreme Court,
the provisions of § 229 track the Convention provisions. See
Bond, 134 S. Ct. at 2085. The Convention prohibits each
State Party from developing, producing, acquiring,
stockpiling, retaining, transferring or using chemical
weapons. See Convention, art. 1(1)(a), (b), 32 I.L.M. at 804;
cf. 18 U.S.C. § 229(a)(1). Chemical weapons are defined in
the Convention as “[t]oxic chemicals and their precursors
. . .” Convention, art. 2(1)(a), 32 I.L.M. at 804; cf. 18 U.S.C.
§ 229F. In turn, a toxic chemical is defined as “[a]ny
chemical which through its chemical action on life processes
can cause death, temporary incapacitation or permanent harm
to humans or animals. . . .” See Convention, art. 2(2), 32
I.L.M. at 805; cf. 18 U.S.C. § 229F.
In United States v. Bond, 681 F.3d 149, 151 (3d Cir.
2012), rev’d sub nom. Bond v. United States, 134 S. Ct. 2077
(2014), the Third Circuit affirmed the defendant’s conviction
under 18 U.S.C. § 229. The defendant, an employee of a
chemical manufacturer, sought revenge upon a romantic rival.
UNITED STATES V. FRIES 21
See id. Bond acquired “highly toxic chemicals, stealing
10–chlorophenoxarsine from her employer and purchasing
potassium dichromate over the Internet.” Id. “She then
applied those chemicals to [the victim’s] mailbox, car door
handles, and house doorknob. . . .” Id.
Relying on Missouri v. Holland, 252 U.S. 416 (1920), the
Third Circuit rejected Bond’s argument that “neither the
Commerce Clause, nor the Necessary and Proper Clause in
connection with the Treaty Power, could support the
expansive wording of the statute, let alone her
prosecution. . . .” Id. (citation omitted).3 The Third Circuit
observed that it was “bound to take at face value the Supreme
Court’s statement [in Holland] that if the treaty is valid there
can be no dispute about the validity of the statute as a
necessary and proper means to execute the powers of the
Government. . . .” Id. at 162 (citation, alteration, and internal
quotation marks omitted). The Third Circuit opined that
“because the [Chemical Weapons] Convention falls
comfortably within the Treaty Power’s traditional subject
matter limitation, the Act is within the constitutional powers
of the federal government under the Necessary and Proper
Clause and the Treaty Power, unless it somehow goes beyond
the Convention. . . .” Id. at 165. The Third Circuit concluded
3
In Holland, the Supreme Court rejected Missouri’s Tenth Amendment
challenge to the federal government’s enforcement of the Migratory Bird
Treaty Act. See Holland, 252 U.S. at 430–31, 435. The Supreme Court
held that “[a]s most of the laws of the United States are carried out within
the States and as many of them deal with matters which in the silence of
such laws the State might regulate, such general grounds are not enough
to support Missouri’s claim.” Id. at 434. “Valid treaties . . . are as binding
within the territorial limits of the States as they are elsewhere throughout
the dominion of the United States. . . .” Id. (citation and internal quotation
marks omitted).
22 UNITED STATES V. FRIES
that “because the Convention pertains to the proliferation and
use of chemical weapons, which are matters plainly relating
to war and peace, we think it clear that the Convention falls
within the Treaty Power’s core. . . .” Id. at 166 (citation
omitted).
We agree and adopt the Third Circuit’s reasoning in
upholding the constitutionality of § 229. In doing so, we
acknowledge that the Supreme Court, overturning Bond’s
conviction on narrower grounds, did not need to address the
statute’s constitutionality. Because Fries squarely raised the
issue on appeal, and we conclude that the statute applies to
his conduct, we are required to decide the issue of the
statute’s constitutionality.
In Bond, the Supreme Court considered whether § 229
“reaches a purely local crime: an amateur attempt by a jilted
wife to injure her husband’s lover, which ended up causing
only a minor thumb burn readily treated by rinsing with
water. . . .” Bond, 134 S. Ct. at 2083. The Supreme Court
declined to consider the constitutionality of § 229, but held
that the statute was inapplicable to Bond’s conduct. See id.
at 2087. The Supreme Court observed that “in this curious
case, we can insist on a clear indication that Congress meant
to reach purely local crimes, before interpreting the statute’s
expansive language in a way that intrudes on the police power
of the States.” Id. at 2090 (citation and footnote reference
omitted). The Supreme Court explained that “[c]hemical
weapon is the key term that defines the statute’s reach, and it
is defined extremely broadly. But that general definition does
not constitute a clear statement that Congress meant the
statute to reach local criminal conduct.” Id. (internal
quotation marks omitted). Instead, “[t]he natural meaning of
chemical weapon takes account of both the particular
UNITED STATES V. FRIES 23
chemicals that the defendant used and the circumstances in
which she used them.” Id. (internal quotation marks omitted).
The Supreme Court cautioned that, speaking naturally,
Bond’s conduct could not be fairly described as combat. See
id. Indeed, none of the circumstances of the crime, including
the infliction of only “a minor thumb burn” suggested
deployment of a chemical weapon. Id. at 2090–91. The
Court clarified that the chemical compounds “might be
chemical weapons if used, say, to poison a city’s water
supply. But Bond’s crime is worlds apart from such
hypotheticals, and covering it would give the statute a reach
exceeding the ordinary meaning of the words Congress
wrote.” Id. at 2091. The Supreme Court described the Bond
case as “unusual,” and calling for limited analysis. Id. at
2093. The Court concluded that this “exceptional
convergence of factors gives us serious reason to doubt the
Government’s expansive reading of section 229, and calls for
us to interpret the statute more narrowly.” Id.
Notably, the Supreme Court observed that “with the
exception of this unusual case, the Federal Government itself
has not looked to section 229 to reach purely local crimes.
The Government has identified only a handful of prosecutions
that have been brought under this section.” Id. at 2092
(citation omitted). “Most of those involved either terrorist
plots or the possession of extremely dangerous substances
with the potential to cause severe harm to many people.” Id.
(citations omitted). Citing specifically to Fries’ prosecution
in which Fries “set off a homemade chlorine bomb in the
victim’s driveway, requiring evacuation of a residential
neighborhood,” the Supreme Court reasoned:
The Federal Government undoubtedly has a
substantial interest in enforcing criminal laws
24 UNITED STATES V. FRIES
against assassination, terrorism, and acts with
the potential to cause mass suffering. Those
crimes have not traditionally been left
predominantly to the States, and nothing we
have said here will disrupt the Government’s
authority to prosecute such offenses.
Id.
In view of the Supreme Court’s acknowledgment of the
government’s authority to prosecute Fries’ criminal conduct
despite its narrow interpretation of § 229, we conclude that
Fries’ conviction is entirely distinguishable from prosecution
of the purely local crime at issue in Bond. See id. at 2087.
The evidence presented at Fries’ trial belies any notion that
Fries was involved in purely local criminal activity. As
contrasted with the “minor thumb burn readily treated by
rinsing with water” in Bond, 134 S. Ct. at 2083, Fries’ use of
a chlorine bomb produced a dense chlorine gas cloud
estimated to have been “1,000 feet long, 100 feet high, and
roughly 200 feet deep” that injured several people including
first responders, and required the evacuation of an entire
neighborhood and implementation of HAZMAT procedures.
Fries’ conduct constituted “possession of extremely
dangerous substances with the potential to cause severe harm
to many people.” Id. at 2092 (citations omitted). Our
conclusion is consistent with Dr. Walter’s testimony that
chlorine gas is toxic and qualifies as a chemical that is
immediately dangerous to life and health. Moreover,
Sergeant Rogers testified that Fries’ utilization of multiple
sealed chlorine containers had “the great potential to cause
serious physical injury or death” based on the intensity of the
explosions and widespread dispersion of chlorine gas. Thus,
the federal prosecution of Fries’ criminal use of chlorine gas
UNITED STATES V. FRIES 25
in violation of § 229 was entirely proper because “[t]he
Federal Government undoubtedly has a substantial interest in
enforcing criminal laws against . . . acts with the potential to
cause mass suffering. . . .” Bond, 134 S. Ct. at 2092. Taking
account of the chemicals used by Fries and the circumstances
under which he used them, see id. at 2090, we conclude that
§ 229 applies to Fries’ criminal conduct, and is a
constitutional exercise of congressional authority.
B. Challenged Jury Instruction (18 U.S.C. § 229)
As part and parcel of his jurisdictional challenge, Fries
requested a jury instruction containing a requirement that the
charged criminal act be committed against property owned,
leased, or used by the United States to confer jurisdiction
under § 229(a).
Pursuant to 18 U.S.C. § 229(c):
Conduct prohibited by subsection (a) is within
the jurisdiction of the United States if the
prohibited conduct– (1) takes place in the
United States; (2) takes place outside of the
United States and is committed by a national
of the United States; (3) is committed against
a national of the United States while the
national is outside the United States; or (4) is
committed against any property that is owned,
leased, or used by the United States or by any
department or agency of the United States,
whether the property is within or outside the
United States.
(emphasis added).
26 UNITED STATES V. FRIES
According to Fries, because only one of the subsections
of § 229(c) applies to property damage, that subsection must
be relied upon to confer jurisdiction over this case. We
disagree. Fries’ requested instruction was legally untenable
because 18 U.S.C. § 229(c) sets forth the jurisdictional
provisions in the disjunctive and the government was not
required to satisfy each jurisdictional clause. See United
States v. Sheldon, 755 F.3d 1047, 1050 (9th Cir. 2014)
(holding that “Congress’s use of the word ‘or’ at the
beginning of the final clause indicates that these are three
independent alternatives” and that “[i]n construing a statute,
a court should interpret subsections written in the disjunctive
as setting out separate and distinct alternatives”) (citation
omitted). Fries’ resort to the rule of statutory construction
that a more specific provision controls over a more general
provision does not carry the day. We apply rules of statutory
interpretation only when assistance is needed to tease out the
meaning of ambiguous legislation. See Woods v. Carey,
722 F.3d 1177, 1180–81 (9th Cir. 2013). In this case, the
statute is clear and unambiguous, conferring jurisdiction upon
the court if any one of the distinct jurisdictional alternatives
is satisfied. See Sheldon, 755 F.3d at 1050. The district
court, therefore, properly rejected Fries’ requested
instruction.
C. Motion To Suppress
Now that we have determined that § 229 was properly
applied to Fries’ criminal conduct, we address Fries’ motion
to suppress evidence seized pursuant to the search warrant.
Fries’ challenge premised on the staleness of the search
warrant is unavailing. “Probable cause for a search requires
a fair probability that contraband or evidence of a crime will
be found in a particular place, based on the totality of the
UNITED STATES V. FRIES 27
circumstances.” United States v. Grant, 682 F.3d 827, 832
(9th Cir. 2012) (citation and internal quotation marks
omitted). “The most convincing proof that the property was
in the possession of the person or upon the premises at some
remote time in the past will not justify a present invasion of
privacy. . . .” Id. (citation omitted). However, “[i]nformation
underlying a warrant is not stale if there is sufficient basis to
believe, based on a continuing pattern or other good reasons,
that the items to be seized are still on the premises. . . .”
United States v. Schesso, 730 F.3d 1040, 1047 (9th Cir. 2013)
(citation and internal quotation marks omitted).
We conclude that Fries’ “continuing pattern” of
vandalizing the homes of former customers militates against
a finding that the information supporting probable cause was
impermissibly stale. Id. Agent Nowak’s affidavit delineated
in great detail the similarities among the three incidents of
vandalism in 2008, 2009, and 2011. Notably, the alleged
modus operandi for each of the incidents was nearly identical.
In particular, each incident involved the use of motor oil,
animal carcasses, and other substances to vandalize the
former customers’ residences, as well as attempts to divert
blame to uninvolved individuals. Although Fries attempts to
distinguish the 2011 incident as an act of vandalism rather
than a federal crime involving the use of chemicals, a pattern
of conduct is readily discerned from consideration of the
related incidents. This continuing pattern of criminal
conduct, as well as the evidence of Fries’ stockpiling of items
for future acts of retribution, supports an inference that Fries
continued to possess items related to ongoing criminal
conduct. See United States v. Crews, 502 F.3d 1130, 1140
(9th Cir. 2007) (“One may infer that equipment acquired to
accomplish a crime will be kept for some period of
time. . . .”) (citation omitted). The search warrant was issued
28 UNITED STATES V. FRIES
approximately two weeks after the April 28, 2011, incident,
thus further undermining Fries’ staleness argument. See
United States v. Lacy, 119 F.3d 742, 745 (9th Cir. 1997)
(underscoring the relationship between the timing of the
relevant conduct and issuance of the warrant).
Fries’ argument that the search warrant was
impermissibly overbroad in permitting a search of Fries’
computers and business records is similarly unpersuasive.
“The Fourth Amendment requires that a warrant particularly
describe both the place to be searched and the person or
things to be seized.” United States v. Smith, 424 F.3d 992,
1004 (9th Cir. 2005) (citation and emphasis omitted). “The
description must be specific enough to enable the person
conducting the search reasonably to identify the things
authorized to be seized. The purpose of the breadth
requirement is to limit the scope of the warrant by the
probable cause on which the warrant is based. . . .” Id.
(citations, alteration, and internal quotation marks omitted).
In this case, the search warrant sufficiently circumscribed
the agents’ discretion with respect to Fries’ computers and
records. The search warrant affidavit sufficiently explained
that seizure of Fries’ computers was required because of the
difficulty in analyzing the computers on-site and the potential
for alteration or destruction of the computers’ components.
According to Agent Nowak, a confidential source revealed
that Fries had “a laptop that he carries with him at all times
and uses frequently” and that Fries “has a computer at his
home that he uses very frequently . . .” Additionally, Agent
Nowak delineated in great detail that Fries’ alleged criminal
conduct and the corresponding probable cause stemmed from
Fries’ harassment of former business customers. See United
States v. Banks, 556 F.3d 967, 973 (9th Cir. 2009) (upholding
UNITED STATES V. FRIES 29
a search under similar circumstances). As a result, the search
warrant was not impermissibly overbroad. See Kahre,
737 F.3d at 567 (holding that “[t]he search warrant affidavits
furnished probable cause to search for the enumerated
items”).
D. Co-Conspirator Statements
Fries contends that the district court erred in admitting
statements pursuant to Fed. R. Evid. 801(d)(2)(E) that were
made by Jordan, an employee and co-participant. Fries
argues that the statements were not admissible as non-hearsay
testimony because the indictment did not contain a conspiracy
count.
Fed. R. Evid. 801(d)(2)(E) (2011) provides:
A statement that meets the following
conditions is not hearsay: The statement is
offered against an opposing party and . . . was
made by the party’s coconspirator during and
in furtherance of the conspiracy.
Contrary to Fries’ assertion, we have held that, under Fed. R.
Evid. 801(d)(2)(E), “[a] coconspirator’s statement is
admissible upon proof that it was made in furtherance of a
conspiracy, notwithstanding the fact that the indictment does
not contain a conspiracy count. The question is merely
whether there was proof of a sufficient concert of action to
show the individuals to have been engaged in a joint
venture. . . .” United States v. Manning, 56 F.3d 1188, 1197
(9th Cir. 1995) (citation omitted); see also United States v.
Gonzalez, 715 F.2d 1411, 1412 (9th Cir. 1983) (holding that
“[i]t is clear that statements of a co-defendant are admissible
30 UNITED STATES V. FRIES
even in the absence of a conspiracy count where there is
independent evidence of a concert of action”) (citations,
alteration, and internal quotation marks omitted). Because
the trial testimony reflected that Jordan conspired in Fries’
criminal acts, the district court did not err in admitting the
statements attributable to Jordan as a co-conspirator. See id.
In any event, any error was harmless given the
overwhelming evidence of Fries’ guilt, irrespective of
Jordan’s statements. See United States v. Morales, 720 F.3d
1194, 1199 (9th Cir. 2013) (applying the harmless error
doctrine).4
E. Challenged Jury Instruction (Missing Evidence)
Fries contends that the district court erroneously rejected
his proffered jury instruction premised on the government’s
failure to record the telephone call that prompted the false
statement charge.
Fries proffered the following instruction:
Ladies and gentleman of the jury the phone
call that forms the basis [sic] count two,
which you must consider in your deliberation
was not recorded by the FBI and will not be
available for you during your deliberation.
4
To the extent Fries asserts a Confrontation Clause violation, we are
similarly unpersuaded. See United States v. Grasso, 724 F.3d 1077, 1085
n.9 (9th Cir. 2013) (rejecting Confrontation Clause challenge because
“[a]lthough the Sixth Amendment limits the admissibility of testimonial
evidence, co-conspirator statements in furtherance of a conspiracy are not
testimonial”) (citations omitted).
UNITED STATES V. FRIES 31
The district court rejected Fries’ proffered instruction because
the case did not involve failure to preserve existing evidence
or the destruction of evidence. However, the district court
permitted Fries to argue that the government’s failure to
record the call resulted in insufficient evidence to convict him
on Count Two.
To warrant a missing evidence instruction, a criminal
defendant must establish that evidence was lost or destroyed
in bad faith, and he suffered prejudice as a result. See United
States v. Romo-Chavez, 681 F.3d 955, 961 (9th Cir. 2012).
Under this standard, the district court properly rejected Fries’
proffered instruction because no evidence was lost or
destroyed. Instead, the FBI agent merely failed to record the
telephone call. Under Fries’ theory, a similar instruction
would be warranted whenever law enforcement officials
failed to record a statement, or experienced technical
difficulties during a recording session. Fries has failed to
provide any legal support for this proposition and we are
aware of none. Cf. id. (explaining that an instruction
permitting the jury to draw an adverse inference against the
prosecution “usually makes sense only where the evidence
permits a finding of bad faith destruction; ordinarily,
negligent destruction would not support the logical inference
that the evidence was favorable to the defendant”) (citation
omitted) (emphasis in the original).
Fries’ reliance on our decision in Sivilla is misplaced. In
Sivilla, the defendant was charged after cocaine was found in
the jeep he was driving. See Sivilla, 714 F.3d at 1170. Prior
to trial, the district court ordered the government to preserve
the vehicle as evidence. See id. Despite the order, the
vehicle was auctioned and “stripped for parts.” Id. at 1171.
The defendant had “sought to use his inspection of the Jeep
32 UNITED STATES V. FRIES
to rebut the prosecution’s argument that he must have known
that the drugs were in the Jeep because of how long and
involved a process it was to remove them from the car. . . .”
Id. at 1174. We distinguished between dismissal of a case
due to bad faith destruction of evidence and the giving of a
remedial instruction when evidence is destroyed but no bad
faith exists. See id. at 1170. We opined that “[b]ad faith is
the wrong legal standard for a remedial jury instruction. . . .”
Id. at 1173. Instead, “[c]ourts must balance the quality of the
Government’s conduct against the degree of prejudice to the
accused, where the government bears the burden of justifying
its conduct and the accused of demonstrating prejudice.” Id.
(citation and internal quotation marks omitted). Under that
standard, we held that a remedial jury instruction was
warranted based on the government’s destruction of evidence
that may have been pivotal to the defense.5 See id. at
1173–74.
In stark contrast, Fries’ prosecution did not involve
evidence that was lost or destroyed. Even under our
reasoning in Sivilla, the government’s conduct in failing to
record the telephone call did not warrant a remedial
instruction. The most obvious difference between this case
and Sivilla is that in Sivilla evidence was destroyed in direct
violation of a court order. See id. at 1170–71. In addition,
unlike in this case, Sivilla specified how the destroyed
evidence would have been used by the defense. See id. at
1174. Finally, in Sivilla, because the district court found a
lack of bad faith, it declined to give a remedial instruction,
and it does not appear that Sivilla was allowed to press the
5
The government suggests that Romo-Chavez and Sivilla are in tension
with respect to application of the bad faith standard. We need not resolve
any conflict because Fries’ challenge fails under either standard.
UNITED STATES V. FRIES 33
destruction of evidence point during trial. See id. at 1172–73.
In this case, Fries was permitted to argue insufficient
evidence due to the failure to record the telephone call. For
these reasons, we are persuaded that the district court
committed no error.
F. Obstruction of Justice Enhancement
Fries asserts that the district court erred in applying a two-
level obstruction of justice enhancement pursuant to U.S.S.G.
§ 3C1.1 based on Fries’ August 4, 2009, phone call to the FBI
giving false information regarding the attack on the Levines.
Fries maintains that the district court engaged in
impermissible double-counting because his conduct was also
“charged and punished as a substantive offense.”
Pursuant to U.S.S.G. § 3C1.1:
If (1) the defendant willfully obstructed or
impeded, or attempted to obstruct or impede,
the administration of justice with respect to
the investigation, prosecution, or sentencing
of the instant offense of conviction, and
(2) the obstructive conduct related to (A) the
defendant’s offense of conviction and any
relevant conduct; or (B) a closely related
offense, increase the offense level by 2 levels.
U.S.S.G. § 3C1.1 (2012).6
“Impermissible double counting occurs when one part of
the Guidelines is applied to increase a defendant’s
6
The 2012 Guidelines Manual was utilized for Fries’ sentencing.
34 UNITED STATES V. FRIES
punishment on account of a kind of harm that has already
been fully accounted for by application of another part of the
Guidelines.” United States v. Gallegos, 613 F.3d 1211, 1216
(9th Cir. 2010) (citation omitted). “But it is not always
impermissible to enhance . . . the base offense level multiple
times for the same criminal act: It is sometimes authorized
and intended by the Sentencing Guidelines when each
invocation of the behavior serves a unique purpose under the
Guidelines.” Id. (citation, alteration, and internal quotation
marks omitted).
Fries’ base offense level was calculated premised on his
conviction for Count One of the indictment, the chemical
weapons charge. His false statement conviction on Count
Two was grouped with Count One in accordance with
U.S.S.G. § 3D1.2(c). See Application Note 8, U.S.S.G.
§ 3C1.1 (2012) (“If the defendant is convicted both of an
obstruction offense . . . and an underlying offense (the offense
with respect to which the obstructive conduct occurred), the
count for the obstruction offense will be grouped with the
count for the underlying offense under subsection (c) of
§ 3D1.2 (Groups of Closely Related Counts). The offense
level for that group of closely related counts will be the
offense level for the underlying offense increased by the
2-level adjustment specified by this section, or the offense
level for the obstruction offense, whichever is greater.”).7
7
Although we have not extensively addressed double-counting relative
to an obstruction of justice enhancement, other courts have rejected
analogous challenges. See United States v. Yielding, 657 F.3d 688, 717
(8th Cir. 2011) (observing that grouping “is designed to prevent double-
counting by ensuring that the obstructive conduct is taken into account
only once: as a two-level adjustment to the base offense level for the
underlying offense, or as the offense level provided for the obstruction
offense itself”) (citation omitted); see also United States v. Fiore,
UNITED STATES V. FRIES 35
Moreover, the obstruction of justice enhancement was not
limited to the false statement offense alleged in Count Two of
the indictment. Rather, the evidence at trial reflected that
Fries’ attempts to obstruct the investigation extended well
beyond the telephone call to the FBI, such as leaving the
identifications of other individuals at the Levines’ residence
to divert attention and thwart the ensuing investigation.
Because Fries’ conviction for making a false statement did
not fully encompass his obstructive conduct, the enhancement
was justified. See United States v. Albritton, 622 F.3d 1104,
1108 n.4 (9th Cir. 2010) (“Double counting is permissible if
it accounts for more than one type of harm caused by the
defendant’s conduct, or where each enhancement of the
defendant’s sentence serves a unique purpose under the
guidelines.”) (citation omitted); see also United States v.
Cabaccang, 481 F.3d 1176, 1186 (9th Cir. 2007) (“There is
. . . nothing wrong with double counting when it is necessary
to make the defendant’s sentence reflect the full extent of the
wrongfulness of his conduct.”) (citation and internal
quotation marks omitted). The district court, therefore, did
not err in applying the obstruction of justice enhancement.
381 F.3d 89, 95 (2d Cir. 2004) (holding that “this [grouping] formula
ensures the two-point enhancement does not constitute double-counting
because when closely related counts are grouped under section 3D1.2(c),
the offense level used is that for the most serious counts”) (citation,
alterations, and internal quotation marks omitted); United States v. Maggi,
44 F.3d 478, 482 (7th Cir. 1995) (rejecting the “implication that the
enhancement somehow imposed duplicative punishment for . . .
obstructive conduct. The enhancement is used merely to determine the
applicable Guidelines range”) (citation omitted).
36 UNITED STATES V. FRIES
IV. CONCLUSION
Taking our cue from the Supreme Court’s decision in
Bond, we conclude that the prosecution of Fries pursuant to
18 U.S.C. § 229 was within the federal government’s
prosecutorial authority. We also hold that Congress has the
constitutional authority to proscribe the conduct in which
Fries engaged. Unlike the defendant in Bond, Fries did not
engage in purely local criminal activity resulting in minor
injury to a single individual. Rather, his detonation of
chlorine bombs requiring the evacuation of an entire
neighborhood had “the potential to cause severe harm to
many people.” Bond, 134 S. Ct. at 2092 (citation omitted).
Interpreting the plain language of the statute, the district
court properly rejected Fries’ requested jury instruction that
§ 229(c) required the government to prove that Fries’
criminal act was against property owned, leased, or used by
the United States. The requested instruction was legally
untenable because § 229(c) states the jurisdictional elements
in the disjunctive.
The district court properly denied Fries’ motion to
suppress evidence seized as the result of a search warrant.
The information supporting probable cause to search was not
stale because it was based on Fries’ continuing pattern of
criminal conduct. The search warrant application sufficiently
limited the agents’ discretion in conducting their search of
Fries’ residence, computers, and business records.
Consistent with our precedent, the district court correctly
held that the statements of Fries’ co-participant were
admissible pursuant to Fed. R. Evid. 801(d)(2)(E) as co-
conspirator statements even though the indictment did not
UNITED STATES V. FRIES 37
allege a conspiracy count. The district court also acted within
its discretion in rejecting Fries’ proffered missing evidence
instruction as lacking the requisite legal and factual support.
Finally, the district court did not err in applying a two-
level obstruction of justice enhancement because Counts One
and Two were properly grouped pursuant to U.S.S.G. § 3D1.2
and the enhancement was applied to Fries’ conviction for use
of chemical weapons. Fries’ conviction for making a false
statement did not fully encompass Fries’ obstructive conduct.
AFFIRMED.