United States v. Jack Morgan

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 17, 2019
• Docket: 18-10106
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 17 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10106

Plaintiff-Appellee, D.C. No. 2:17-cr-00064-KJD-GWF-1 v.

JACK WILLIAM MORGAN, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Kent J. Dawson, District Judge, Presiding

Submitted May 15, 2019** San Francisco, California

Before: McKEOWN and GOULD, Circuit Judges, and LASNIK,*** District Judge.

Jack Morgan raises several challenges to his convictions for kidnapping and

conspiring to commit kidnapping, 18 U.S.C. § 1201(a)(1), (c), and his resulting life

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. sentence. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and

we affirm.

The district court’s failure to conduct a sua sponte competency hearing was

not plain error because “a reasonable judge would [not] be expected to experience a

genuine doubt” as to Morgan’s competence. United States v. Garza, 751 F.3d 1130,

1134 (9th Cir. 2014) (quoting United States v. Dreyer, 705 F.3d 951, 961 (9th Cir.

2013)). The absence of any “indication that [Morgan] failed to understand or assist

in his criminal proceedings” precludes a finding of plain error. United States v. Neal,

776 F.3d 645, 656 (9th Cir. 2015) (quoting Garza, 751 F.3d at 1136).

Even assuming error with respect to exclusion of evidence of Morgan’s prior

sexual relationship with the victim, any such error was harmless. See United States

v. Haines, 918 F.3d 694, 699-700 (9th Cir. 2019). There were overwhelming (and

largely undisputed) indicia of guilt, and there was no question that Morgan and the

victim ended their relationship a year and a half prior to the kidnapping. It is

inconceivable that the excluded evidence could have changed the verdict.

Likewise, assuming Morgan’s pre-trial filings and statements preserved his

constitutional speedy trial claim, that claim fails under the governing four-factor

balancing test. United States v. King, 483 F.3d 969, 976 (9th Cir. 2007). Even

crediting Morgan’s pre-trial complaints as a “prompt assertion of speedy trial

rights,” the ten-month delay here was modest and does not, if at all, weigh much in

2 his favor. United States v. Gregory, 322 F.3d 1157, 1161-62 & nn.3-4 (9th Cir.

2003). On the other hand, there was a “valid reason” that “serve[d] to justify

appropriate delay”: Morgan’s co-defendant requested two short continuances to

adequately prepare his defense. Barker v. Wingo, 407 U.S. 514, 531 (1972). Morgan

concedes that the only potential prejudice he suffered was pretrial detention—yet,

his additional time in pretrial custody was far short of the “oppressive” detention

needed to demonstrate prejudice. Gregory, 322 F.3d at 1163 (quoting Doggett v.

United States, 505 U.S. 647, 654 (1992)). Considered together, these factors reflect

that Morgan’s right to a speedy trial was respected. See Barker, 407 U.S. at 530-34.

Morgan’s claim that the district court erred by failing to impose counsel,

against his will, at sentencing fails as a matter of law: the right to self-representation

extends through sentencing, so a district court is constitutionally prohibited from

doing any such thing. See Faretta v. California, 422 U.S. 806 (1975) (recognizing

right to self-representation); Lopez v. Thompson, 202 F.3d 1110, 1117 (9th Cir.

2000) (clarifying that this right extends through sentencing).

Given that Morgan failed to “manifest[] genuine contrition for his acts,” the

district court’s determination that he did not accept responsibility was not clearly

erroneous. United States v. Rodriguez, 851 F.3d 931, 949 (9th Cir. 2017) (quoting

United States v. Cantrell, 433 F.3d 1269, 1285 (9th Cir. 2006)). Even assuming that

Morgan’s advisory counsel adequately preserved Morgan’s objections to the district

3 court’s upward departures, none of the departures was an abuse of discretion. See

United States v. Lloyd, 807 F.3d 1128, 1139 (9th Cir. 2015). Physical injury need

not result in permanent disfigurement to be “significant” under U.S.S.G. § 5K2.2,

and the numerous injuries suffered by the victim were unquestionably severe. The

botched use of a stun gun does not preclude a departure for the use or possession of

a weapon or dangerous instrumentality under U.S.S.G. § 5K2.6. Nor is there

evidence establishing that the rifle was inoperable and therefore clearly incapable of

inflicting bodily harm.

Finally, to the extent Morgan challenges the substantive reasonableness of his

sentence, that argument fails as well—this is not one of the “rare cases” where a

sentence is substantively unreasonable. United States v. Ressam, 679 F.3d 1069,

1088 (9th Cir. 2012).

AFFIRMED.