FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10095
Plaintiff-Appellee, D.C. No.
v. 2:07-CR-00120-
JEFFREY DANIEL GREER, RLH-GWF-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Chief District Judge, Presiding
Argued and Submitted
June 14, 2010—San Francisco, California
Filed April 7, 2011
Before: Mary M. Schroeder and Jay S. Bybee,
Circuit Judges, and Owen M. Panner, District Judge.*
Opinion by Judge Bybee;
Dissent by Judge Panner
*The Honorable Owen M. Panner, Senior United States District Judge
for the District of Oregon, sitting by designation.
4597
4600 UNITED STATES v. GREER
COUNSEL
Peter S. Levitt, Assistant United States Attorney, Las Vegas,
Nevada, for the plaintiff-appellee.
Jason F. Carr, Assistant Federal Public Defender, Las Vegas,
Nevada, for the defendant-appellant.
UNITED STATES v. GREER 4601
OPINION
BYBEE, Circuit Judge:
Jeffrey Greer was convicted by a jury of two counts of
extortion under the Hobbs Act, 18 U.S.C. § 1951, and two
counts of racketeering under 18 U.S.C. § 1952. On appeal, he
argues first, that the district court failed to give a specific
intent instruction and then proffered conflicting jury instruc-
tions that negated a mens rea element of extortion, and sec-
ond, that the government improperly asked Greer to comment
on the veracity of other witnesses during cross-examination.
We review for plain error and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Greer Discovers Confidential Documents
In March 2007, while employed as a truck driver for
French Trucking, Greer picked up bales of paper from
Secured Fibers, a North Las Vegas recycling company, and
delivered the bales to a plant in Alabama. After plant workers
unloaded the paper, several hundred documents—about fifty
pounds of paper that had come loose from the wired bales—
still remained on the floor of the trailer. These documents
contained sensitive information about the clients of several
Las Vegas casinos—primarily Harrah’s Entertainment and
MGM/Mirage—including the clients’ social security num-
bers, account numbers, betting limits, and betting habits. The
casinos had contracted with Secured Fibers to collect these
confidential documents and destroy them.
Once Greer examined the “ankle deep” paper that remained
in his truck, he came to several realizations: he realized that
the documents were confidential; that they should have been
shredded; that the casinos would not want them publicized;
and that the casinos might be willing to pay him a substantial
amount of money to prevent the documents’ disclosure.
4602 UNITED STATES v. GREER
Indeed, Greer testified he “was retiring from trucking that
day” because he thought he could get half a million dollars
from the casinos for the return of the documents.
Several days later, Greer contacted Vicki French—his boss
and one of the owners of French Trucking—and asked her if
he could keep “anything that was left in the trailer.” Greer,
however, concealed from his employer precisely what he had
found. When French asked Greer to clarify his question,
Greer did not ask whether he could keep confidential docu-
ments that remained in his truck. Rather, he asked: “[I]f I
have some of that grass seed left in the trailer [from a previ-
ous delivery], can I take it home and plant it in my yard?”
French answered that he could.1
B. Greer Contacts the Casinos and Tries to Obtain Money
After obtaining his employer’s permission to take home
grass seed left in his trailer and plant it in his yard, Greer con-
tacted the casinos. On April 27, 2007, Greer telephoned Har-
rah’s Entertainment and told Security Director Henry Wilks
he had information regarding players’ accounts, social secur-
ity numbers, and credit amounts. Greer further told Wilks he
could obtain confidential information whenever he wanted
because Harrah’s had a “hole” in its system and offered to
“plug” this “hole” if he was hired as a consultant. During the
course of this conversation, Greer refused to identify himself
or specify how he had obtained the clients’ confidential infor-
mation.
Five days later, Greer called Wilks again. After reiterating
his desire to be hired as a consultant, Greer told Wilks that he
had contacted an attorney and that the attorney advised him
not to use the information Greer had in his possession.
1
French later testified that had Greer told French what was really in the
trailer, she would have instructed Greer to deliver the documents to her
and she would have returned the documents to their owners.
UNITED STATES v. GREER 4603
Accordingly, Greer told Wilks that if a deal could not be
made, he would “trash the information,” but also warned
Wilks that he could get more information in “two minutes
whenever he wanted.”
The following day, Greer spoke with Harrah’s investigator,
Randy Riley. This time, Greer identified himself as “Jeff” and
told Riley not to trace the call. Greer informed Riley he had
a significant amount of personal information regarding the
casino’s clients but refused to reveal how he obtained the
information until the casino made Greer its “best offer.” Addi-
tionally, Greer boasted he could obtain more information at
any time and gave Riley an ultimatum: if the casino’s offer
was not ready by May 7, 2007, Greer would either disclose
the information to the media or “seek other avenues.”
At this point, Harrah’s Entertainment contacted the FBI and
reported Greer’s “extortion attempt.” Then, in an effort to
develop evidence leading to Greer’s arrest, Harrah’s agreed to
record future conversations with Greer and to offer Greer a
fake “short-term security consulting contract.” The casino
also planted fake information in its employee database to
determine—in later conversations with Greer—whether Greer
had access to the database.
On May 7, 2007, frustrated that no deal had been made,
Greer left a voice message directing the casino’s officials to
an auction listed on eBay. When Harrah’s Entertainment’s
officials visited the website, they saw a hand grasping a pair
of animal testicles with the caption: “A Large Gaming Com-
pany’s Family Jewels.” The auction site listed a starting bid
of $100,000 and promised “inside business information”
about a “large gaming company’s” guests. This inside busi-
ness information included casino restaurants and shops infor-
mation (how much each earned and what credit cards were
used), hotel guest information (who stayed in what room, how
long they stayed, and any special requests made), and player
information (social security numbers, credit limits, and tax
4604 UNITED STATES v. GREER
information). Additionally, the posting promised unlimited
access to this information.
Because Harrah’s Entertainment viewed this posting as a
“very serious threat,” it offered Greer $5,000 in exchange for
learning how Greer acquired the confidential information.
Greer, however, was insulted by Harrah’s offer, dismissed it
as “ridiculous,” and instead demanded a $250,000 “security
consulting contract” and a $100,000 “bonus” to play in the
World Series of Poker. With the FBI’s acquiescence, Riley
feigned interest in Greer’s counter-proposal and arranged a
“round table meeting” to finalize the deal. Harrah’s, however,
had no intention of paying Greer anything. Rather, undercover
officers posing as casino executives planned to arrest Greer at
the meeting scheduled for May 9, 2007, as soon as Greer
signed the bogus contract and accepted the check for
$250,000.
While en route to the meeting, Greer called Paul Urban,
Harrah’s Entertainment’s Corporate Investigator and asked
him if he “could keep a secret.” When Urban answered affir-
matively, Greer disclosed how he had discovered the informa-
tion. Specifically, Greer told Urban he was a truck driver who
picked up a load of paper from Secured Fibers and discovered
a “handful” of documents left in his truck. Greer further said
he knew the documents were confidential and he had “never
bluffed a big company before.” At the end of this conversa-
tion, Urban immediately notified Riley to cancel the casino’s
contract with Secured Fibers.
When Greer met with Harrah’s officers and the undercover
FBI agents, he accepted a check for $250,000 and a document
purporting to be a security consulting contract. After the FBI
agents arrested him, Greer told the agents that “he thought his
actions were legal,” and that he “had every right” to take the
documents from his trailer. He further stated that he “capi-
taliz[ed] on somebody else’s mistake” in trying to obtain
$250,000 as well as a $100,000 poker stipend from the casino.
UNITED STATES v. GREER 4605
Aside from Harrah’s Entertainment, Greer also contacted
MGM/Mirage and tried to obtain money through similar tac-
tics. Specifically, Greer called Bruce Gebhardt, the Senior
Vice President of Global Security at MGM/Mirage, and told
Gebhardt the casino had a security leak that he could identify
for a price. Greer sent a fax containing a sample of the infor-
mation Greer possessed and told Gebhardt the “information
was like a river, that he could just dip his hand into it and get
it, get the information at any time.” When Gebhardt accused
Greer of extortion, Greer threatened to disclose the informa-
tion to the newspapers so that the public would know
MGM/Mirage failed to protect their customers’ confidential
information. Additionally, Greer also directed MGM/Mirage
to the vulgar auction posting on eBay. Greer then demanded
$250,000 from MGM/Mirage for identifying the source of the
casino’s security leak, but, before MGM/Mirage responded to
this demand, the casino learned Greer had been arrested.
C. Greer’s Cross-Examination
After Greer’s arrest, the government charged Greer with
two counts of Attempted Interference with Commerce by
Threats or Use of Fear (extortion) in violation of 18 U.S.C.
§ 1951, two counts of Wire Fraud in violation of 18 U.S.C.
§ 1343, and two counts of Use of Interstate Facility in Aid of
Racketeering Activity (racketeering) in violation of 18 U.S.C.
§ 1952. At trial, Greer testified and, during his cross-
examination, he made several denials which prompted the
government to ask on approximately eight occasions whether
government witnesses testified to “incorrect” or “inaccurate”
information and on one occasion whether Greer believed
Wilks was “less than candid” on the witness stand. For exam-
ple, the following questioning occurred:
Q: I’m asking when Mr. Wilks testified that you
had told him . . . you had access to Harrah’s confi-
dential information and could access it any time you
wanted, if that’s what you told Mr. Wilks in that call.
4606 UNITED STATES v. GREER
A: I do not recall telling him I could access it any
time I wanted and I doubt that I said that.
Q: All right. Do you recall Mr. Wilks testifying in
this court that you said that?
A: Yes, sir, I do.
Q: All right. So when Mr. Wilks said that, he was
testifying as to incorrect or inaccurate information?
A: I believe so, yes, sir.
...
Q: Did you tell [Mr. Wilks you could obtain Har-
rah’s confidential information any time you wanted
and it only took two minutes for you to do so]?
A: No, sir.
Q: All right. So when Mr. Wilks testified to that
here in this courtroom, he was testifying as to inac-
curate information?
A: I believe he was lying, sir.
...
Q: All right. You heard Mr. Riley testify here that
you said that you had access to all of the company
employees’ information for the Las Vegas region
and New Orleans region?
A: Yes, sir, I did.
Q: And you’re saying you did not tell him that?
UNITED STATES v. GREER 4607
A: . . . I did not tell him [that], no, sir.
Q: All right. So when Mr. Riley made that state-
ment here . . . he testified to inaccurate information?
A: At the most charitable interpretation, yes, sir.
...
Q: [D]o you remember Mr. Wilks testifying . . .
that you ever said to him that if he felt that you were
. . . extorting him, that you would never have any
contact with him?
A: No, sir, I don’t recall him testifying to that
effect, I do not.
Q: Well, you seem to be indicating that you think
that Mr. Wilks was less than candid?
A: That would be a fair characterization, sir. Less
than candid, that’s a good way to put that. Not the
way I would have chosen, but that’s a good one.
Q: Do you recall telling Mr. Wilks that you would
trash the information if you didn’t reach a deal, but
you could always get more information and then you
would have to decide what you would do with it?
A: No, sir.
Q: Do you recall Mr. Wilks testifying that’s what
you said?
A: Yes, sir, I do.
Q: So, if Mr. Wilks testified to that here in the
courtroom, he was testifying as to inaccurate infor-
mation?
4608 UNITED STATES v. GREER
A: Let’s go with your less than candid construc-
tion. I think he was telling a bald faced lie.
Although Greer eventually raised an “asked and answered”
objection to these questions, Greer never objected that these
questions were otherwise improper. Additionally, when Greer
made his “asked and answered” objection, the prosecutor
replied: “I’m getting, you know, references to lying. I really
just want him to say that Mr. Wilks’[s] testimony was inaccu-
rate as to the testimony.”
D. The Jury Instructions
At the conclusion of Greer’s trial, the district court gave
three jury instructions that are relevant to this appeal. First,
the district court gave a specific instruction expounding the
elements of extortion:
In order for the defendant Jeffrey Greer to be found
guilty of . . . extortion, the government must prove
each of the following elements beyond a reasonable
doubt: First, the defendant attempted to induce Har-
rah’s Entertainment or MGM/Mirage to part with
money or property by the wrongful use of fear of
economic harm to Harrah’s Entertainment or
MGM/Mirage; Second, the Defendant acted with the
intent to obtain money from Harrah’s Entertainment
or MGM/Mirage that the defendant knew he was not
entitled to receive; Third, commerce from one state
to another would have been delayed, obstructed or
affected in any way or degree; Fourth, the defendant
did something that was a substantial step toward
committing the crime of extortion by threat of eco-
nomic harm, with all of you agreeing as to what con-
stituted a substantial step.
Second, the district court proffered a general “knowingly”
instruction stating that “[a]n act is done knowingly if the
UNITED STATES v. GREER 4609
defendant is aware of the act and does not act through igno-
rance, mistake, or accident. The government is not required to
prove that the defendant knew that his actions were unlaw-
ful.” And third, in response to the jury’s asking what “wrong-
ful” meant in the phrase “wrongful use of fear of economic
harm,” the district court instructed the jury that “[t]he wrong-
ful use of fear means that the defendant had no lawful right
to obtain the money in that way.”
Prior to charging the jury, Greer partially objected to the
specific instruction expounding the elements of extortion,
requesting that the district court further define the term
“wrongful” to mean “that the defendant has no lawful claim
to the property [that was left in his truck].”2 The district court
refused to give this instruction because, in its view, Greer’s
proposed definition was an incorrect statement of the law.3
Greer also objected to the district court’s “wrongful”
instruction—given in response to the jury’s asking what
“wrongful” meant—arguing that the district court should use
the definition Greer previously proffered; the district court
overruled the defendant’s objection. Greer, however, never
objected to the jury instructions on the grounds that the gen-
2
Greer had a much more innocent explanation for how he obtained the
documents (they were left in his truck) than for how he used the docu-
ments to obtain the casinos’ money (threatening the casinos). Greer’s prof-
fered definition of “wrongful” clearly intended to shift the jury’s inquiry
away from how Greer used the documents to threaten the casinos to how
he acquired the documents in the first place.
3
The Hobbs Act defines extortion as “the obtaining of property from
another . . . by wrongful use of actual or threatened . . . fear.” 18 U.S.C.
§ 1951 (emphasis added). The district court was correct to instruct the jury
that “wrongful” refers to the property Greer tried to obtain—the casinos’
money—rather than to the property Greer used to obtain money from the
casinos—the documents left in his truck. As the Supreme Court explained,
“ ‘wrongful’ has meaning in the [Hobbs] Act only if it limits the statute’s
coverage to those instances where the obtaining of the property would
itself be ‘wrongful’ because the alleged extortionist has no lawful claim
to that property.” United States v. Enmons, 410 U.S. 396, 399-400 (1973)
(emphasis added).
4610 UNITED STATES v. GREER
eral “knowingly” instruction conflicted with the specific
extortion instruction.
E. Greer’s Conviction and Subsequent Appeal
The jury convicted Greer of extortion and racketeering, but
acquitted him of wire fraud. On appeal, Greer now argues his
convictions should be reversed for two reasons. First, Greer
argues the district court failed to give a specific intent instruc-
tion and then proffered conflicting jury instructions that
negated a mens rea element of extortion. Specifically, Greer
claims the general “knowingly” instruction informing the jury
that “[t]he government is not required to prove that the defen-
dant knew that his actions were unlawful” negated the spe-
cific instruction requiring the jury to find that Greer “acted
with the intent to obtain money from [the casinos] that
[Greer] knew he was not entitled to receive.” Second, Greer
argues the prosecutor improperly asked him to comment on
the government witnesses’ credibility.
STANDARD OF REVIEW
[1] Because Greer never asked for a specific intent instruc-
tion and failed to object at trial either that the district court
proffered conflicting jury instructions or that the prosecutor
improperly asked Greer to comment on the veracity of gov-
ernment witnesses, we review Greer’s arguments under the
plain error standard. See United States v. Lopez-Cavasos, 915
F.2d 474, 475 (9th Cir. 1990). “Plain error is (1) error, (2) that
is plain, and (3) that affects substantial rights. If these three
conditions . . . are met, [we] may exercise [our] discretion to
notice a forfeited error that (4) seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United
States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en
banc) (internal citations and quotation marks omitted).
UNITED STATES v. GREER 4611
DISCUSSION
A. Extortion Jury Instructions
The Hobbs Act, 18 U.S.C. § 1951, states in relevant part:
(a) Whoever in any way or degree . . . affects com-
merce or the movement of any article . . . in com-
merce, by . . . extortion or attempts or conspires so
to do, . . . shall be fined under this title or imprisoned
not more than twenty years, or both.
(b) As used in this section
...
(2) The term “extortion” means the obtaining of
property from another, with his consent, induced by
wrongful use of actual or threatened force, violence,
or fear, or under color of official right.
Greer makes two arguments. First, he argues that the term
“wrongful” in § 1951 requires that the government prove he
acted with the specific intent to violate the law. Second, he
argues that the district court’s various instructions conflicted
and eliminated a mental state requirement for conviction—
specifically, the defendant’s subjective knowledge “that he
had no legitimate claim to the property or money in question.”
We address each argument in turn.
1. Specific Intent to Violate the Law
[2] Citing United States v. Sturm, 870 F.2d 769 (1st Cir.
1989), Greer argues that § 1951 requires proof of “specific
intent to violate the law.” Greer has misread Sturm.
[3] In Sturm, the First Circuit held that “the term ‘wrong-
ful’ [in 18 U.S.C. § 1951] requires the government to prove,
4612 UNITED STATES v. GREER
in cases involving extortion based on economic fear, that the
defendant knew . . . he was not legally entitled to the property
that he [tried to obtain].” Sturm, 870 F.2d at 774 (emphasis
added). Sturm, however, never held the defendant must know
his actions violate the law. Indeed, the First Circuit explicitly
refused to “express any opinion about whether extortion under
the Hobbs Act requires the ‘evil motive’ version of specific
intent,” id. at 777, “manifested by a deliberate intention to
disobey a statute.” Id. at 776. Greer is thus wrong to assert
that the crime of economic extortion is “one of the rare
instances where ignorance of the law is in fact a defense”
when, by “ignorance of the law,” Greer refers to the defen-
dant’s knowledge of the Hobbs Act. The First Circuit distin-
guished between ignorance of “the [criminal] law defining the
offense” and ignorance of “the [non-criminal] law character-
izing attendant circumstances that are material to the offense.”
Id. It held only that the latter type of ignorance—in Sturm,
“ignoran[ce] of the law establishing the rights of debtors and
creditors”—was a defense to an economic extortion prosecu-
tion. Id. Here, the district court satisfied Sturm because it
instructed the jury that the government must prove Greer
“acted with the intent to obtain money from [the casinos] that
[Greer] knew he was not entitled to receive.”
[4] So far as we can determine, no circuit has held that a
specific intent instruction (i.e., specific intent to violate the
law) is required and at least one circuit has held that it is not.
See United States v. Carmichael, 232 F.3d 510, 522 (6th Cir.
2000) (“To the extent [the defendant] is arguing that the dis-
trict court was required to instruct the jury that, in order to
convict [him], it had to conclude [he] intended to violate the
Hobbs Act, we reject the argument as unsupported by the
law.”). Although we see no justification for concluding that
“wrongful” in § 1951 requires proof of specific intent to vio-
late the law, we are hesitant to hold so in this case, especially
since Greer’s contrary argument relies only on a misreading
of Sturm. But at the very least, it was not plain error for the
district court to fail to give such a specific intent instruction.
UNITED STATES v. GREER 4613
See United States v. Turman, 122 F.3d 1167, 1171 (9th Cir.
1997) (finding no plain error where “[a]t the time defendant
was tried, no circuit . . . had considered the validity of his
[jury] instructions, nor was the error so obvious that the dis-
trict judge should have recognized it on her own”).
2. Conflicting Jury Instructions
[5] Greer acknowledges that the district court’s extortion
instruction—requiring the government to prove Greer “acted
with the intent to obtain money from [the casinos] that
[Greer] knew he was not entitled to receive” —“could con-
ceivabl[y] encompass” the First Circuit’s requirement in
Sturm. Nevertheless, Greer advances a second argument—that
the district court issued contrary instructions. Greer argues
that the district court’s subsequent definition of “knowingly”
—stating that “[t]he government is not required to prove that
the defendant knew . . . his actions were unlawful” —
conflicted with the extortion instruction and essentially elimi-
nated the requirement that “[Greer know] he was not entitled
to receive” money from the casinos. We hold the district
court did not give conflicting instructions.4
We encountered a similar argument in United States v.
Gravenmeir, 121 F.3d 526 (9th Cir. 1997), where the defen-
dant was charged with, among other things, possessing a
machine gun in violation of 18 U.S.C. § 922(o). There, the
judge instructed the jury that the government must prove “the
defendant knew that the firearm [he possessed] was a machine
4
Because the district court’s instructions satisfied the First Circuit’s
requirement in Sturm, we need not decide whether to adopt Sturm as the
law of this circuit. See United States v. Dischner, 974 F.2d 1502, 1515
(9th Cir. 1992) (refusing to “decide whether the government must prove
that the defendant knew he had no entitlement” to the property he tried to
obtain where the jury instructions “read as a whole . . . necessarily
required a finding that [the defendant] knew he had no right to the pay-
ments induced”), overruled on other grounds by United States v. Morales,
108 F.3d 1031 (9th Cir. 1997) (en banc).
4614 UNITED STATES v. GREER
gun,” but, shortly thereafter, also told the jury “[t]he govern-
ment is not required to prove that the defendant knew that his
acts . . . were unlawful.” Gravenmeir, 121 F.3d at 529-30. On
appeal, the defendant argued the two instructions conflicted
because “the jury, applying the general [‘knowingly’] instruc-
tion, could have convicted him without finding that he knew
of the automatic capability of the Uzi.” Id. at 530. We rejected
this argument because we could not see “how a jury could
avoid finding that [the defendant] ‘knew that the firearm was
a machine gun’ because of a general instruction that requires
a defendant’s awareness of his acts.” Id.
[6] Here, similarly, we fail to see how the district court’s
general “knowingly” instruction negates or even conflicts
with the district court’s specific extortion instruction. While
these instructions are thematically similar—they both address
the defendant’s subjective knowledge—they are substantively
different because they address two distinct types of subjective
knowledge. The general “knowingly” instruction addresses
knowledge of unlawful activity. Specifically, this instruction
reaffirms “the rule that ignorance of the law is no excuse” by
clarifying that knowledge of an act “does not include knowl-
edge of the law.” United States v. Sherbondy, 865 F.2d 996,
1002 (9th Cir. 1988) (emphasis added); see also United States
v. Obiechie, 38 F.3d 309, 315 (7th Cir. 1994) (stating that
“ ‘knowingly’ . . . refers only to the intent to do the act that
is proscribed by law, as opposed to the intentional violation
of a known legal duty”). Thus, the district court properly
instructed the jury that “[a]n act is done knowingly if the
defendant is aware of the act and does not act through igno-
rance, mistake, or accident. The government is not required to
prove that the defendant knew that his actions were unlaw-
ful.”
[7] By contrast, the district court’s extortion instruction
addresses knowledge of legal entitlement to the property the
alleged extortionist tried to obtain. Specifically, this instruc-
tion seeks to prevent the jury from concluding “that it could
UNITED STATES v. GREER 4615
find [Greer] guilty of attempted extortion even if [the jury]
found credible [Greer’s] claim that he sincerely believed . . .
he was legally entitled to [money from the casinos].” Sturm,
870 F.2d at 775 (1st Cir. 1989). Thus, the district court
advised the jury, consistent with Sturm, that the government
must prove “the Defendant acted with the intent to obtain
money from Harrah’s Entertainment or MGM/Mirage that the
defendant knew he was not entitled to receive.” But whether
Greer sincerely believed he was entitled to obtain money from
the casinos tells us nothing about whether Greer also had to
know that his underlying acts violated the Hobbs Act.
Because the general “knowingly” instruction addresses only
this latter type of knowledge—clarifying that the prosecution
did not have to prove Greer knew his acts violated the law,
but only that Greer’s criminal acts were done intentionally—
it could not modify the extortion instruction.
Our analysis in United States v. Stein, 37 F.3d 1407 (9th
Cir. 1994), helps clarify why the general “knowingly” instruc-
tion in Greer’s case was not error. In Stein, the defendant was
charged with money laundering as well as various acts of
fraud that produced the laundered proceeds. Stein, 37 F.3d at
1408. On appeal, the defendant then argued that “part of the
district court’s instructions . . . on the money laundering
counts were negated by a general instruction on when an act
is done ‘knowingly.’ ” Id. at 1409. Specifically, the defendant
claimed that the money laundering instruction—requiring the
government to “prove . . . the defendant knew the property
[laundered] represented the proceeds of [unlawful activity]”
—conflicted with the general “knowingly” instruction, which
did not require the government to prove the defendant “knew
that his acts . . . were unlawful.”5 Id. at 1410 (emphasis
5
The money laundering statute itself requires the government to prove
the defendant knew the laundered money came from an unlawful activity:
Whoever, knowing that the property involved in a financial trans-
action represents the proceeds of some form of unlawful activity,
4616 UNITED STATES v. GREER
added). As we explained, “[a] distinction must be drawn
between the two types of knowledge implicated by the money
laundering statute. While to sustain a conviction the defendant
must have known that the primary predicate activity . . . was
unlawful, he need not have known that the secondary act of
laundering the proceeds was unlawful.” Id. (citations omit-
ted). We then held the two instructions conflicted because
“th[e] general [‘knowingly’] instruction . . . purport[ed] to
apply to all of the defendant’s actions—his predicate acts of
fraud as well as his secondary act of money laundering.” Id.
Accordingly, “by applying the later general instruction, a jury
could convict [the defendant] without finding that he knew his
predicate acts of fraud were unlawful.” Id.
Because the money laundering statute explicitly requires
that the defendant know of other unlawful activity, a money
laundering instruction and a general “knowingly” instruction
address the same type of knowledge: knowledge of unlawful
activity. This substantive overlap between the two instructions
was crucial to our finding in Stein that the instructions were
in conflict. As we later explained, it was also crucial to our
analysis that the defendant was charged with the underlying
unlawful acts which produced the laundered proceeds: “The
statement that ‘the government is not required to prove that
the defendant knew his acts were unlawful’ conflicted with
the knowledge requirement of the money-laundering statute
since the defendant’s acts included the underlying act[s] of
fraud.” United States v. Golb, 69 F.3d 1417, 1428 (9th Cir.
1995) (emphasis added). Had the defendant not been charged
with the underlying acts of fraud, “the general knowledge
instruction could [have] applied [only to the defendant’s
conducts or attempts to conduct such a financial transaction
which in fact involves the proceeds of specified unlawful activity
. . . with the intent to promote the carrying on of specified unlaw-
ful activity, [is guilty of money laundering].
18 U.S.C. § 1956(a)(1)(A)(i) (emphasis added).
UNITED STATES v. GREER 4617
money laundering acts]” and would have thus been “a correct
statement of the law.” Id.
[8] By contrast, there is no similar substantive overlap
between the district court’s extortion instruction and the gen-
eral “knowingly” instruction because the extortion instruction
addresses a different type of knowledge: the defendant’s sub-
jective knowledge that he was not entitled to the property he
tried to obtain.6 Because knowing that one is not entitled to
receive property does not mean that one thereby knows of
unlawful activity, an instruction addressing only the latter
type of knowledge cannot modify an instruction addressing
the former. Relying on United States v. Turman, 122 F.3d
1167 (9th Cir. 1997), and Stein, the dissent argues that the dis-
trict court plainly erred in this case because “this court has
long ‘settled the law’ that a specific instruction on subjective
knowledge of unlawfulness erroneously conflicts with a sub-
sequent general ‘knowingly’ instruction.” Dissent at 4622.
However, the dissent’s reliance on Turman and Stein is mis-
placed because these cases relate to the federal money laun-
dering statute, 18 U.S.C. § 1957, which by its terms requires
some knowledge of unlawful activity. As we have explained
above, the extortion statute does not require knowledge of
unlawful activity; though in cases of economic extortion it
may require that the defendant know he was not legally enti-
tled to the property he tried to obtain, knowledge of legal enti-
tlement to property is not the same as knowledge of unlawful
activity. The dissent simply assumes that these two types of
knowledge are the same.
Greer again argues his case is similar to United States v.
Sturm, where the First Circuit reversed an attempted extortion
6
Indeed, the extortion statute merely requires that the defendant obtain
property from another by “wrongful use of actual or threatened . . . fear.”
18 U.S.C. § 1951(b)(2). Unlike the money laundering statute, the extortion
statute contains no additional requirement that the defendant know of other
unlawful activity.
4618 UNITED STATES v. GREER
conviction under the plain error standard because of erroneous
jury instructions. Sturm, 870 F.2d at 776-77. There are some
similarities between the jury instructions in Sturm and the jury
instructions in this case, but in the end we think Sturm is dis-
tinguishable from Greer’s case. In Sturm—as here—the trial
court first instructed the jury that “wrongful, as in wrongful
use of fear, means that the Defendant had no lawful right to
the property he sought to obtain.” Id. at 775 (alterations omit-
ted). The trial court then provided a general “knowingly”
instruction: “the government is not required to provide, how-
ever, evidence that the Defendant knew those intentional acts
were themselves illegal. In this case, ignorance of the law is
no excuse.” Id. (alterations omitted). However, Sturm is ulti-
mately inapposite because there “the trial court did not
instruct the jury that . . . to convict the defendant . . . it would
have to find that Sturm knew that he was not legally entitled
to [the property he tried to obtain].” Id. Indeed, as the First
Circuit explained, “[b]y making no reference to the defen-
dant’s state of mind, the [trial court’s ‘wrongful’] instruction
suggested that Sturm’s mens rea was irrelevant.” Id. More-
over, the general “knowingly” instruction “exacerbated” this
error because although the instruction “may have referred to
ignorance of the Hobbs Act itself, . . . given the absence of
any instruction on the defendant’s subjective intent with
respect to the element of wrongfulness, the jury may have
concluded that it could find Sturm guilty of attempted extor-
tion even if it found credible his claim that he sincerely
believed . . . he was legally entitled to [the property in ques-
tion].” Id. (emphasis added).
[9] Here, as we have pointed out, the district court pro-
vided an instruction similar to the one the First Circuit found
missing in Sturm. It instructed the jury that, to convict, the
jury had to determine Greer “acted with the intent to obtain
money from [the casinos] that the defendant knew he was not
entitled to receive.” Accordingly, the district court’s general
“knowingly” instruction could not exacerbate an error that did
not exist. Indeed, given the district court’s instruction on the
UNITED STATES v. GREER 4619
defendant’s subjective intent, the general “knowingly”
instruction could only “refer[ ] to ignorance of the Hobbs Act
itself.” Sturm, 870 F.2d at 775. The district court’s instruc-
tions, read as a whole, “necessarily required a finding that
[Greer] knew he had no right to [obtain money from the casi-
nos].”7 Dischner, 974 F.2d at 1515. We thus hold the district
court did not proffer conflicting jury instructions in this case.
B. Improper Cross-Examination
Greer next argues that the prosecutor’s conduct during
Greer’s cross examination constitutes reversible plain error
because the prosecutor repeatedly asked Greer to comment on
the veracity of government witnesses. We disagree and hold
that, even assuming the district court erred by allowing the
questioning Greer complains of, the error was not plain.
[10] Although we have repeatedly stated that a prosecutor
may not ask the defendant to comment on the veracity of
another witness, we have found improper prosecutorial ques-
tioning in only one particular context: when the prosecutor
specifically asked the defendant whether another witness was
lying. See, e.g., United States v. Harrison, 585 F.3d 1155,
1158 (9th Cir. 2009) (holding it was improper for the prosecu-
tor to ask the defendant whether a government witness was
7
“The requirement that the defendant know that he was not legally enti-
tled to the property in question stems from the [extortion] statute’s use of
the term ‘wrongful.’ ” Sturm, 870 F.2d at 775 (emphasis added). Here, the
district court’s “wrongful” definition, by itself, made no reference to what
the defendant subjectively must know; a better definition would have
informed the jury not only that the defendant had no claim of right to the
casinos’ money, but also that the defendant knew this. However, because
a different instruction contained this missing element, the instructions as
a whole satisfied the concerns the Sturm court identified. See United States
v. Dearing, 504 F.3d 897, 903 (9th Cir. 2007) (“In reviewing jury instruc-
tions, the relevant inquiry is whether the instructions as a whole are ade-
quate to guide the jury’s deliberation.”) (citation omitted); United States
v. Ward, 914 F.2d 1340, 1344 (9th Cir. 1990) (“The availability of a better
instruction is not a ground for reversal.”).
4620 UNITED STATES v. GREER
lying); United States v. Combs, 379 F.3d 564, 572 (9th Cir.
2004) (same); United States v. Geston, 299 F.3d 1130, 1136
(9th Cir. 2002) (same); United States v. Sanchez, 176 F.3d
1214, 1219 (9th Cir. 1999) (same). Thus, our precedents
clearly establish that it is improper for the prosecutor to ask
the defendant if a witness was lying. But we have not yet
addressed whether it is improper for the prosecutor to ask the
defendant, as the prosecutor did in this case, if a witness testi-
fied inaccurately.8 At least three circuits, however, have held
that merely asking the defendant whether another witness was
“mistaken” or “wrong” rather than “lying” is proper because
of the significant distinction between these formulations. See,
e.g, United States v. Gaines, 170 F.3d 72, 82 (1st Cir. 1999)
(holding that it is proper to ask the defendant whether another
witness was “wrong” because the defendant is “not required
to choose between conceding the point or branding another
witness as a liar”); United States v. Gaind, 31 F.3d 73, 77
(2nd Cir. 1994) (“Asking [the defendant] whether a previous
witness who gave conflicting testimony is ‘mistaken’ high-
lights the objective conflict without requiring the witness to
condemn the prior witness as a purveyor of deliberate false-
hood, i.e., a ‘liar.’ ”); see also United States v. Harris, 471
F.3d 507, 512 (3d Cir. 2006) (citing Gaines and Gaind
approvingly for the proposition that “it is often necessary on
cross-examination to focus [the defendant] on the differences
and similarities between his testimony and that of another wit-
ness”).
8
On one occasion, the prosecutor asked Greer whether a government
witness had been “less than candid” during his testimony. Because we see
no difference between asking whether a witness was “lying” or being “less
than candid,” this question was improper. Nevertheless, this single
improper question cannot constitute plain error because “the probability of
a different result [absent this question] is [not] sufficient to undermine
confidence in the outcome of the proceeding.” Ameline, 409 F.3d at 1078
(citing United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004)); see
also Harrison, 583 F.3d at 1159, 1163 (no plain error where the prosecu-
tor asked at least twenty-six improper veracity-based questions).
UNITED STATES v. GREER 4621
[11] We need not decide today whether it was improper for
the prosecutor to ask Greer if other government witnesses tes-
tified inaccurately because, even assuming the district court
erred by allowing this questioning, the error was not “so
clear-cut, so obvious, a competent district judge should [have]
be[en] able to avoid it without benefit of objection.” Turman,
122 F.3d at 1170. “When the state of the law is unclear at trial
and only becomes clear as a result of later authority, the dis-
trict court’s error is perforce not plain; we expect district
judges to be knowledgeable, not clairvoyant.” Id. Because
neither the Supreme Court nor this court has yet ruled on the
propriety of the prosecutor’s questions in this case, the district
court did not plainly err.
CONCLUSION
We hold the district court did not plainly err by failing to
give a specific intent instruction, nor did it give conflicting
jury instructions that negated a mental state requirement of
extortion. We also hold the district court did not plainly err by
allowing the prosecutor to ask Greer whether other govern-
ment witnesses testified inaccurately. Accordingly, we affirm
Greer’s convictions for extortion and racketeering.
AFFIRMED.
PANNER, Senior District Judge, dissenting:
I respectfully dissent. The trial court instructed the jury that
for Greer to be guilty of extortion it must find he “acted with
the intent to obtain money from [the casinos] that [he] knew
he was not entitled to receive.” The court also instructed the
jury that “[t]he government is not required to prove that the
defendant knew that his actions were unlawful.” In my opin-
ion, these conflicting instructions amount to plain error. See
4622 UNITED STATES v. GREER
United States v. Olano, 507 U.S. 725, 732 (1993) (defining
plain error).
The error is plain because this court has long “settled the
law” that a specific instruction on subjective knowledge of
unlawfulness erroneously conflicts with a subsequent general
“knowingly” instruction. United States v. Turman, 122 F.3d
1167, 1170 (9th Cir. 1997); United States v. Stein, 37 F.3d
1407, 1410 (9th Cir. 1994). Furthermore, the general instruc-
tion here did not make “sufficiently clear” which charges it
applied to. See United States v. Knapp, 120 F.3d 928, 931-32
(9th Cir. 1997).
The majority apparently limits application of Stein and Tur-
man to convictions under 18 U.S.C. § 1957 or convictions
under statutes that similarly require a subjective knowledge of
unlawfulness. I can only conclude, however, that instructions
requiring a finding of subjective knowledge of unlawfulness
plainly conflict with a general knowingly instruction, regard-
less of whether the subjective knowledge element is required
by statute or, as here, by judge-made law. The majority appar-
ently believes Greer could have known he was not legally
entitled to the money but not know his actions were unlawful.
I disagree.
Moreover, the supplemental definition of “wrongful,” as
used in the phrase “wrongful use of fear of economic harm,”
required only objective unlawfulness. This instruction, pro-
vided during deliberations at the jury’s request, compounded
the earlier error of conflicting general and specific jury
instructions on the subjective mental element required for
conviction on the extortion counts.
This is not a case where the error can be ignored because
of overwhelming evidence of guilt. See United States v.
Ramirez, 537 F.3d 1075, 1086 (9th Cir. 2008). Rather, the
jury could have reasonably found that Greer did not know the
unlawfulness of his actions.
UNITED STATES v. GREER 4623
The majority cites United States v. Gravenmeir, 121 F.3d
526 (9th Cir. 1997), but Gravenmeir is not on point. There,
the defendant was convicted of possession of a machine gun,
a crime which does not require the defendant subjectively
know that possessing a machine gun was illegal. Id. at 529.
The general knowledge instruction was therefore consistent
with the instructions on the elements of the crime.
In contrast, here the jury could have found Greer guilty of
extortion even if it did not find that Greer knew he was not
entitled to receive money from the casinos. See Stein, 37 F.3d
at 1410 (“Where two instructions conflict, a reviewing court
cannot presume that the jury followed the correct one.”). The
jury’s request during deliberations for examples of “wrongful
use of fear of economic harm” and for a supplemental instruc-
tion on “wrongful” suggests some confusion as to the mental
element required for conviction.
Greer’s extortion convictions should be reversed. Further-
more, his racketeering convictions should also be reversed
because the jury returned a general verdict, making it uncer-
tain whether the jury based its guilty findings for racketeering
on its guilty findings for extortion. See Hedgpeth v. Pulido,
129 S. Ct. 530, 530-31 (2008) (per curiam) (explaining such
a flaw in the instructions is error if it “had substantial and
injurious effect or influence in determining the jury’s ver-
dict”) (internal quotation marks omitted).