United States v. Cox

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 6, 2024
• Docket: 23-2713
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 6 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 23-2713 UNITED STATES OF AMERICA, D.C. No. Plaintiff - Appellee, 3:11-cr-00022-RJB-1 v.

MEMORANDUM* FRANCIS SCHAEFFER COX,

Defendant - Appellant.

Appeal from the United States District Court for the District of Alaska Robert J. Bryan, District Judge, Presiding

Argued and Submitted November 20, 2024 Seattle, Washington

Before: McKEOWN, GOULD, and H.A. THOMAS, Circuit Judges.

Francis Schaeffer Cox seeks review of a district court judgment denying his

petition for a writ of habeas corpus. The district court certified for appeal the

questions of whether Cox required a new trial on his conspiracy to murder conviction

because one basis for conviction became legally unavailable when we vacated Cox’s

solicitation to murder conviction on direct appeal, and whether Cox received

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ineffective assistance of counsel. We have jurisdiction under 28 U.S.C. §§ 1291 and

2253. We review de novo a district court’s denial of a habeas petition. United States

v. Jones, 877 F.3d 884, 886 (9th Cir. 2017). We affirm the denial of Cox’s petition.

Cox argues first that he is entitled to a new trial on his conspiracy conviction

because “the verdict is supportable on one ground, but not on another, and it is

impossible to tell which ground the jury selected.” Yates v. United States, 354 U.S.

298, 312 (1957), overruled in part on other grounds by Burks v. United States, 437

U.S. 1 (1978). On direct appeal, we vacated the solicitation conviction in part

because the sole theory supporting the conviction—Cox’s agreement with his co-

conspirators to kill imaginary “federal assassins” during Cox’s appearance at local

television station KJNP—did not put federal officers at sufficient risk of harm to

confer federal jurisdiction. United States v. Cox, 705 F. App’x 573, 576 (9th Cir.

2017) (citing United States v. Feola, 420 U.S. 671, 695–96 (1975)). We upheld the

conspiracy conviction. Id. Cox argues that the lack of jurisdiction that vacated the

solicitation count also applies to the conspiracy count to the extent the conspiracy

count relies on the KJNP theory.

The law of the case doctrine does not bar Cox from raising this argument. On

direct appeal, we ruled on the sufficiency of the evidence for Cox’s conspiracy

conviction, but did not decide the distinct legal error now raised. See Griffin v.

United States, 502 U.S. 46, 59–60 (1991). Our subsequent decision denying Cox’s

2 motion for a writ of audita querela also supports proceeding to the merits, as it held

Cox could raise this issue in a habeas motion. United States v. Cox, No. 19-30254,

2021 WL 4705233 (9th Cir. Oct. 8, 2021).

But Cox’s claim fails on the merits as “errors of the Yates variety are subject

to harmless-error analysis” and here the error was harmless as it is “beyond a

reasonable doubt that the jury verdict would have been the same absent the

error.” United States v. Galecki, 89 F.4th 713, 740, 741 (9th Cir. 2023) (internal

citations omitted). Because the parties are familiar with the facts, we do not recount

them here. Even if the KJNP theory was the focus at trial, the record supports Cox’s

conviction on a separate database theory.

Cox’s ineffective assistance of counsel claims also fail. Under Strickland v.

Washington, 466 U.S. 668, 687 (1984), Cox must establish that “deficient

performance prejudiced the defense.” Cox first argues that trial counsel failed to

distinguish real federal employees from state and imaginary federal employees,

which was especially crucial as to the KJNP theory. Even assuming without

deciding that this was deficient performance, Cox does not demonstrate prejudice as

the database theory was sufficient to support conviction beyond a reasonable doubt,

and evidence was presented that Cox directed Anderson to add the names of three

real, specific federal officers to the database—two of whom he also directly

harassed—apart from any fictitious or state targets.

3 Cox also argues trial counsel erred in not seeking further mens rea or

unanimity jury instructions. Counsel’s performance was neither erroneous nor

prejudicial. As to mens rea, the malice aforethought mens rea for murder was

included in Jury Instruction No. 48, which provided that the government did not

need to prove the elements of murder but was “required to prove that the defendants

entered into an agreement to commit that crime.” Although the government was not

required to prove that a murder occurred, “[u]nder [the] combination of instructions,

the jury, in finding that [Cox] specifically intended to help accomplish the murder

of [federal officers], necessarily had to find malice aforethought; murder had been

defined to include that mental state.” United States v. Croft, 124 F.3d 1109, 1122

(9th Cir. 1997) (emphasis in original); see also United States v. Pemberton, 853 F.2d

730, 734–35 (9th Cir. 1988) (jury instruction that “ma[d]e clear that the ultimate

objective of the conspiracy need not be accomplished for the crime of conspiracy to

be complete” was “substantively correct,” and not misleading viewed in context of

full instructions.)

As to the unanimity argument, the district court instructed that the jurors must

“agree as to the particular crime which the conspirators agreed to commit,” and “on

a particular overt act that you find was committed.” While “a specific unanimity

instruction is required if there is a genuine possibility of jury confusion,” Cox did

not make such a showing here. United States v. Lapier, 796 F.3d 1090, 1096 (9th

4 Cir. 2015) (internal quotation marks omitted). Cox argues again that the jury could

have convicted based on either the KJNP or database theory, but that argument is

distinct from arguing the jury was not unanimous in its decision as directed by the

instructions. The database theory supports conviction beyond a reasonable doubt.

As these alleged errors were not individually prejudicial, they also did not

cumulatively prejudice Cox.

AFFIRMED.