United States v. Billy Nelms, Sr.

FILED
NOT FOR PUBLICATION
JUN 27 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50475
Plaintiff - Appellee, D.C. No. 8:13-cr-00080-AG-1
v.
MEMORANDUM*
BILLY LOUIS NELMS, Sr., AKA Billy
Louis Nelms,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 14-50523
Plaintiff - Appellee, D.C. No. 8:13-cr-00080-AG-2
v.
SOKHON NELMS, AKA Sokhon Khourn,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted June 6, 2016**
Pasadena, California
Before: REINHARDT and WARDLAW, Circuit Judges and BENNETT,*** Senior
District Judge.
Defendant Billy Nelms (hereinafter “Billy”) is a former immigration officer
who took bribes and provided temporary permanent resident status in return to
Cambodian immigrants. He and his wife, Defendant Sokhon Nelms (hereinafter
“Sokhon”), also contacted government witnesses named in his indictment while he
was on pre-trial release. He was convicted at trial of (i) one count of conspiracy to
commit bribery and defraud the United States, 18 U.S.C. § 371; (ii) one count of
conspiracy to commit witness tampering, 18 U.S.C. § 1512(k); (iii) two counts of
bribery by a public official, 18 U.S.C. § 201(b)(2); and (iv) two counts of witness
tampering, 18 U.S.C. § 1512(b)(1). The jury also found that the statutory
enhancement for commission of the witness tampering offenses while on release,
18 U.S.C. § 3147, should apply. Subsequently, he was sentenced to 51-months
imprisonment.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Mark W. Bennett, Senior District Judge for the U.S.
District Court for the Northern District of Iowa, sitting by designation.
2
Defendant Sokhon Nelms, Billy’s wife, was also convicted of one count of
conspiracy to commit witness tampering, 18 U.S.C. § 1512(k), and two counts of
witness tampering, 18 U.S.C. § 1512(b)(1), and was sentenced to 18-months
imprisonment.
Billy argues that his conspiracy convictions should be reversed because the
jury instructions on those charges were confusing and erroneous. He also contends
that the district court engaged in impermissible double counting when calculating
his sentence. Sokhon does not contest her conviction. Rather, she argues that the
district court abused its discretion when imposing her below-guidelines sentence.
None of the defendants’ arguments has merit, and accordingly, we affirm.
1. “We review the district court’s formulation of a jury instruction for abuse
of discretion, although we review de novo the question whether a jury instruction
misstates an element of a crime.” United States v. Dearing, 504 F.3d 897, 900 (9th
Cir. 2007). When reviewing allegedly confusing jury instructions, we examine the
instructions “as a whole” and in the context of the entire trial to determine if they
were “misleading or confusing, inadequately guided the jury’s deliberations, or
improperly intruded on the fact finding process.” United States v. Warren, 25 F.3d
890, 898 (9th Cir. 1994).
3
In this case, the instruction given for both the multi-object bribery-related
conspiracy, 18 U.S.C. § 371, and the witness tampering conspiracy, 18 U.S.C.
§ 1512(k), were taken from the Ninth Circuit Manual of Model Criminal Jury
Instructions § 8.20. These instructions adequately stated the law, and, taken as a
whole, they were not confusing. Contrary to Billy’s argument, the instruction for
the Section 371 multi-object bribery-related conspiracy adequately instructed the
jury that it must unanimously agree on at least one of the conspiracy’s objectives.
That instruction specifically stated that the jury “must find that there was a plan to
commit at least one of the crimes alleged in the first superseding indictment as an
object of the conspiracy with all of you agreeing as to the particular crime which
the conspirators agreed to commit.” That instruction is more than sufficient to
guide the jury. See, e.g., United States v. Friedman, 445 F.2d 1076, 1084 (9th Cir.
1971).
Further, the jury was not likely to be confused by the differences between
the two instructions. Billy contends that the jury may have been confused by the
fact that the Section 371 conspiracy had an overt act requirement, but the Section
1512(k) conspiracy did not. The difference between the two instructions, however,
is required by the law—Section 1512(k) does not require an overt act. See United
States v. Shabani, 513 U.S. 10, 14 (1994). Billy provides no support in precedent
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or in logic for his argument that “confusion blossoms” from the district court’s
decision to accurately state the elements of each conspiracy. Finally, we reject
Billy’s argument that the Section 1512(k) instruction was confusing because it
required the jury to find that the defendant “willfully participat[ed] in the unlawful
plan,” which he claims is “tantamount” to an overt act requirement. That argument
ignores the plain language of the instruction. Because the conspiracy instructions
adequately guided the jury’s factfinding process, did not intrude on that process,
and were not misleading or confusing, we affirm.
2. Billy next challenges his sentence, claiming that the district court
engaged in impermissible double counting when it calculated his sentence. He is
wrong. It is undisputed that Billy’s witness tampering conduct was an obstruction
of justice offense that qualified for a U.S.S.G. § 3C1.1 two-level enhancement.
The district court therefore appropriately applied that enhancement by calculating
the guideline range of 51 to 63 months. After considering the 3553(a) factors, the
judge chose a sentence of 51 months. However, because the jury determined that
Billy’s witness tampering conduct had been committed while on pretrial release,
the judge applied the statutory enhancement under 18 U.S.C. § 3147, which
required that any witness tampering sentence be served consecutively. In order not
to exceed the 51 month sentence the judge deemed appropriate, he divided that
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sentence into 45 months for the bribery-related charges and 6 months for the
witness tampering, to be served consecutively. This was necessary in order to
comply with 18 U.S.C. § 3147 and the Guidelines. See U.S.S.G. § 3C1.1, cmt. 1.
At no point did the judge increase Billy’s offense level twice for the same conduct.
Accordingly, no double counting occurred.
3. Sokhon raises only one challenge on appeal: that the district court
abused its discretion in imposing her below-guidelines sentence because the court
impermissibly considered the unrelated conduct of her husband, the government’s
witnesses, and her culture.1 Sokhon’s argument is based on statements made by
the district judge that are taken out of context. When placed in context, the
message of the district judge is clear: Sokhon’s attempts to tamper with the
witnesses against her husband were serious in nature because her crime affected
the integrity of the criminal justice system and sent a negative message to new
immigrants about the rule of law in this country. These statements, therefore, were
relevant considerations under 18 U.S.C. § 3553(a).
We affirm in both cases.
1
According to the Bureau of Prisons, Sokhon was released from prison on
April 27, 2016. This appeal is not moot, however, because she is currently serving
a term of supervised release. See United States v. Verdin, 243 F.3d 1174, 1178
(9th Cir. 2001).
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AFFIRMED.
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