FILED
NOT FOR PUBLICATION
AUG 29 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30000
Plaintiff-Appellee, D.C. No.
3:11-cr-00022-RJB-1
v.
FRANCIS SCHAEFFER COX, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Robert J. Bryan, District Judge, Presiding
Argued and Submitted August 16, 2017
Anchorage, Alaska
Before: GRABER, CLIFTON, and M. SMITH, Circuit Judges.
Defendant Francis Schaeffer Cox appeals his convictions for conspiracy to
murder a federal officer in violation of 18 U.S.C. §§ 1117 and 1114 and for
solicitation to murder a federal officer in violation of 18 U.S.C. §§ 373 and 1114.
We affirm Defendant’s conspiracy conviction, vacate his solicitation conviction,
vacate his sentences, and remand to the district court for resentencing.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. Defendant challenges several aspects of the jury instructions. First, he
argues that the instructions failed to inform the jury that it had to find that he
conspired with the mental state required for first-degree murder in order to convict
him of conspiracy to commit first-degree murder. Reviewing for plain error, we
conclude that any error in that instruction did not affect Defendant’s substantial
rights. United States v. Olano, 507 U.S. 725, 734–35 (1993). Second, Defendant
argues that the instructions were deficient because they did not inform the jury that
it had to find that the conspiracy was not one for self-defense. We conclude that,
even assuming that Defendant has preserved the argument, the instructions
adequately covered his theory of self-defense, United States v. Gomez-Osorio, 957
F.2d 636, 642–43 (9th Cir. 1992), they were not misleading, Stoker v. United
States, 587 F.2d 438, 440 (9th Cir. 1978) (per curiam), and the district court did
not abuse its discretion in formulating the instructions as it did, United States v.
Knapp, 120 F.3d 928, 930 (9th Cir. 1997). Finally, Defendant argues that the lack
of an instruction to the effect that the jury had to agree unanimously as to the
target(s) of the conspiracy confused the jury. Reviewing for plain error, we
conclude that it is not "obvious" or "clear" that the district court erred by not giving
a specific unanimity instruction as to the intended target(s) of the conspiracy. See
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Puckett v. United States, 556 U.S. 129, 135 (2009) (noting that, for an error to be
"plain," it "must be clear or obvious, rather than subject to reasonable dispute").
2. Defendant next challenges the sufficiency of the evidence on the
conspiracy charge. We assume, without deciding, that Defendant has properly
preserved this challenge, so that our review is de novo. See United States v.
Phillips, 704 F.3d 754, 762 (9th Cir. 2012). We conclude that, "consider[ing] the
evidence presented at trial in the light most favorable to the prosecution[,] . . .
[that] evidence, so viewed, is adequate to allow any rational trier of fact to find the
essential elements of the crime beyond a reasonable doubt." United States v.
Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc) (internal quotation marks
and alteration omitted). Defendant and his co-conspirators agreed to attack
government officials—including federal officers—in the event of certain
conditions that they subjectively thought were likely to occur. A rational trier of
fact could find beyond a reasonable doubt that the agreement was not merely one
for self-defense. A rational trier of fact could also conclude that "the agreement,
standing alone, constituted a sufficient threat to the safety of a federal officer so as
to give rise to federal jurisdiction." United States v. Feola, 420 U.S. 671, 695–96
(1975).
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3. Defendant also challenges the sufficiency of the evidence on the
solicitation charge. We review for plain error, but "plain-error review of a
sufficiency-of-the-evidence claim is only theoretically more stringent than the
standard for a preserved claim." United States v. Flyer, 633 F.3d 911, 917 (9th Cir.
2011) (internal quotation marks omitted). We conclude that it is clear that no
rational trier of fact could find Defendant guilty of solicitation to murder a federal
official, for two independent reasons. First, no rational trier of fact could conclude
that the circumstances surrounding the formation of the security team for the
television station event "strongly confirm[ed] that [D]efendant actually intended"
for anyone to commit first-degree murder. United States v. Stewart, 420 F.3d
1007, 1020–21 (9th Cir. 2005). Second, because the federal "hit team" that the
security team was supposed to guard against did not exist, the solicitation to
murder a member of that hit team did not "constitute[] a sufficient threat to the
safety of a federal officer so as to give rise to federal jurisdiction." Feola, 420 U.S.
at 695–96.1 The error affected Defendant’s substantial rights and seriously
affected the fairness, integrity, or public reputation of a judicial proceeding, and we
1
The Government’s theory at trial was that Defendant’s actions in
connection with the formation of the security team for the television station event
constituted solicitation to murder a federal official. No rational trier of fact could
conclude that Defendant’s other actions—those not related to the creation of the
security team—amounted to solicitation within the meaning of 18 U.S.C. § 373.
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will correct it. See Flyer, 633 F.3d at 917 ("When a conviction is predicated on
insufficient evidence, the last two prongs of the plain-error test will necessarily be
satisfied." (brackets omitted) (quoting United States v. Cruz, 554 F.3d 840, 845
(9th Cir. 2009)); Cruz, 554 F.3d at 845 (holding that the last two prongs of the
plain-error test are necessarily met "when [a] court, as a matter of law, ha[d] no
jurisdiction to try [a defendent] for the alleged offense").
4. Defendant next argues that several of the district court’s evidentiary
rulings were erroneous. Reviewing for plain error, we conclude that the court’s
decision to admit evidence about Defendant’s political speech and activities was
not plainly erroneous. And assuming, without deciding, that Defendant has
properly preserved his challenge to the district court’s rulings on his requested
limiting instruction, we conclude that neither the court’s particular formulation of
the limiting instruction nor the court’s refusal to give an instruction at the time the
evidence of political activity was presented to the jury constituted an abuse of its
discretion. See United States v. Campanale, 518 F.2d 352, 362 (9th Cir. 1975) (per
curiam) ("Appellants place special emphasis on the refusal of the judge to give
cautionary instructions on the statements of co-conspirators at the time evidence
was admitted. This subject was covered at the conclusion of the trial. There was
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no prejudicial error in the judge’s failure to give such an instruction also on other
occasions during the trial." (citation omitted)).
5. We decline to reach Defendant’s ineffective-assistance-of-counsel claim.
See United States v. Jeronimo, 398 F.3d 1149, 1155 (9th Cir. 2005) ("[A]s a
general rule, we do not review challenges to the effectiveness of defense counsel
on direct appeal."), overruled on other grounds by United States v. Jacobo Castillo,
496 F.3d 947 (9th Cir. 2007) (en banc).
6. We vacate Defendant’s sentences on all counts of conviction and remand
with instructions to resentence Defendant in light of our reversal of his solicitation
conviction. See United States v. Evans-Martinez, 611 F.3d 635, 645 (9th Cir.
2010) (holding that an appellate court has "the power to vacate all of the sentences
imposed by a district court when the district court erred with respect to one of the
sentences," and "remand of all sentences is often warranted").
AFFIRMED in part, REVERSED in part, VACATED in part, and
REMANDED.
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