United States v. Payne

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 8, 2025
• Docket: 23-1592
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 8 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-1592

Plaintiff - Appellee, D.C. No. 8:17-cr-00053-JLS-1

v. MEMORANDUM* DAVID HOBART PAYNE,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California Josephine L. Staton, District Judge, Presiding

Submitted March 28, 2025** Pasadena, California

Before: TASHIMA, NGUYEN, and MENDOZA, Circuit Judges.

Defendant-Appellant David Payne (“Payne”) appeals his jury conviction for

conspiracy and substantive violations of the honest-services fraud statute, 18

U.S.C. § 371 (Conspiracy) and §§ 1343, 1346 (Wire Fraud Involving Deprivation

* 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). of Honest Services), and for using an interstate facility in aid of unlawful activity

under the Travel Act, 18 U.S.C. § 1952(a). On appeal, Payne challenges the

sufficiency of the indictment on three grounds: (1) the scope of the honest-services

fraud statute does not extend to physician-patient relationships; (2) honest-services

fraud requires that the defendant cause or intend to cause some kind of tangible

harm to the fraud victim, which the indictment did not allege; and (3) the Travel

Act counts fail to state an offense because the California state offenses underlying

the Travel Act counts are overbroad. With regard to the first and second grounds,

Payne challenges the jury instructions as well.

We have jurisdiction under 28 U.S.C. § 1291. Preserved objections to jury

instructions on the grounds that the instructions misstate or omit an element of the

charged offense are reviewed de novo. United States v. Anderson, 741 F.3d 938,

945 (9th Cir. 2013). Absent an objection to the jury instruction, the court reviews

for plain error. Id. Pre-trial challenges to the sufficiency of an indictment are

reviewed de novo. United States v. Qazi, 975 F.3d 989, 992 (9th Cir. 2020). For

challenges to the indictment made post-trial, plain error applies. Id. We affirm.

1. Payne’s argument that his indictment was legally defective because

the honest-services fraud statute does not extend to doctor-patient relationships is

foreclosed by United States v. Solakyan, 119 F.4th 575 (9th Cir. 2024). In

Solakyan, we considered whether the physician-patient relationship fell within our

2 definition of a fiduciary relationship and held that it “squarely” does. Id. at 585.

“[H]onest-services mail fraud, as proscribed by 18 U.S.C. §§ 1341 and 1346,

encompasses bribery and kickback schemes that deprive patients of their intangible

right to the honest services of their physicians.”1 Id. Accordingly, the indictment

was sufficient, and the district court properly instructed the jury.

2. Payne’s argument that honest-services fraud requires that the

defendant cause or intend to cause some kind of tangible harm to the fraud victim

is likewise squarely foreclosed by Solakyan. Id. at 587. There we held that “actual

or intended tangible harm is not an element of honest-services fraud.” Id. Thus,

the indictment was sufficient, and the district court properly instructed the jury.

Accordingly, Payne has not established any error, much less plain error, in his

prosecution for honest-services wire fraud under §§ 1343 and 1346.

3. Lastly, Payne challenges the sufficiency of the indictment on a third

ground: the Travel Act counts are categorically overbroad and thus require

dismissal. In his view, to serve as Travel Act predicates, the California bribery

statutes must be categorical matches for generic bribery, but California’s bribery

1 Although Payne was charged and convicted for wire fraud under 18 U.S.C. § 1343, Solakyan’s holding is equally applicable to him, as “[i]t is well settled that cases construing the mail fraud and wire fraud statutes are applicable to either.” United States v. Green, 592 F.3d 1057, 1063 n.3 (9th Cir. 2010) (citation omitted); see also United States v. Manion, 339 F.3d 1153, 1156 (9th Cir. 2003) (per curiam) (noting that the elements of wire and mail fraud are the same).

3 statutes are too broad to serve as Travel Act predicates because generic bribery

requires a finding of corrupt intent, which is absent from California’s bribery

statutes. Contrary to Payne’s contention, the generic definition of bribery does not

include an element of corrupt intent, and this Court recently held in United States v.

Shen Zhen New World I, LLC, 115 F.4th 1167, 1185 (9th Cir. 2024), that the Travel

Act’s underlying state predicate offenses need not be categorical matches for

generic bribery. Surveying the law as it existed in 1961, we conclude that generic

bribery does not include an element of corrupt intent. Id. at 1183 (“The generic

definition of bribery in 1961 thus controls what the Travel Act proscribes.”);

United States v. Garcia-Jimenez, 807 F.3d 1079, 1084 (9th Cir. 2015) (“A court

applying categorical analysis ordinarily surveys a number of sources—including

state statutes, the Model Penal Code, federal law, and criminal law treatises—to

establish the federal generic definition of a crime.”). Turning to the second flaw in

Payne’s argument, Shen Zhen held that “[e]ven if broader, state law violations can

serve as predicates under the Travel Act if the jury convicted the defendant based

on elements that conformed to the generic definition of the crime.” 115 F.4th at

1185. Thus, because the California statutes that Payne was convicted under

include elements that conform to the generic definition of bribery, the indictment is

sufficient.

AFFIRMED.