United States v. Richard Latka

Ninth Circuit

United States v. Richard Latka

696 F. App'x 287

CourtCourt of Appeals for the Ninth Circuit

DecidedAugust 18, 2017

Docket16-50044

StatusUnpublished

This text of 696 F. App'x 287 (United States v. Richard Latka) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Richard Latka, 696 F. App'x 287 (9th Cir. 2017).

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Opinion

MEMORANDUM *

1.Latka’s indictment was sufficient because “it contained] the elements of the charged crime in adequate detail to inform [him] of the charge, and ... enablefd] him to plead double jeopardy.” See United States v. Morlan, 756 F.2d 1442, 1444 (9th Cir. 1985) (citation omitted).

Further, the indictment wasn’t “constructively amended, which] occurs when the defendant is charged with one crime but, in effect, is tried for another crime.” United States v. Mancuso, 718 F.3d 780, 792 (9th Cir. 2013) (citations omitted); see also Stirone v. United States, 361 U.S. 212, 214-15, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) (holding that an indictment for moving sand was impermissibly amended when the conviction was for moving steel); United States v. Choy, 309 F.3d 602, 607-08 (9th Cir. 2002) (holding that an indictment for bribing a public official was impermissibly amended when the conviction was for giving money to a private individual).

“The continuous nature of [Latka’s offense] prevents the indictment from being duplicitous.” Mancuso, 718 F.3d at 792 (citation omitted). The trial court’s unanimity instruction also remedied any possible duplicity. See United States v. Ramirez-Martinez, 273 F.3d 903, 915 (9th Cir. 2001), overruled on other grounds by United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007).

2. The district court didn’t violate Lat-ka’s right to confront Ellsworth because the excluded evidence wasn’t relevant and the jury had “sufficient information to assess [Ellsworth’s] ... credibility[.]” United States v. Cazares, 788 F.3d 956, 983-84 (9th Cir. 2015).

3. A district court may, for good cause, remove “any jurors who are unable to perform or who are disqualified from performing their duties.” Fed. R. Crim. P. 24(c)(1); see Williams v. Cavazos, 646 F.3d 626, 652 (9th Cir. 2011), rev’d on other grounds sub nom. Johnson v. Williams, 568 U.S. 289, 133 S.Ct. 1088, 185 L.Ed.2d 105 (2013). The district court didn’t abuse its *288 discretion because it had good cause to remove Juror 9.

4. There being no individual errors, Lat-ka’s cumulative error claim fails.

AFFIRMED

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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MEMORANDUM *

1.Latka’s indictment was sufficient because “it contained] the elements of the charged crime in adequate detail to inform [him] of the charge, and ... enablefd] him to plead double jeopardy.” See United States v. Morlan, 756 F.2d 1442, 1444 (9th Cir. 1985) (citation omitted).

Further, the indictment wasn’t “constructively amended, which] occurs when the defendant is charged with one crime but, in effect, is tried for another crime.” United States v. Mancuso, 718 F.3d 780, 792 (9th Cir. 2013) (citations omitted); see also Stirone v. United States, 361 U.S. 212, 214-15, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) (holding that an indictment for moving sand was impermissibly amended when the conviction was for moving steel); United States v. Choy, 309 F.3d 602, 607-08 (9th Cir. 2002) (holding that an indictment for bribing a public official was impermissibly amended when the conviction was for giving money to a private individual).

“The continuous nature of [Latka’s offense] prevents the indictment from being duplicitous.” Mancuso, 718 F.3d at 792 (citation omitted). The trial court’s unanimity instruction also remedied any possible duplicity. See United States v. Ramirez-Martinez, 273 F.3d 903, 915 (9th Cir. 2001), overruled on other grounds by United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007).

2. The district court didn’t violate Lat-ka’s right to confront Ellsworth because the excluded evidence wasn’t relevant and the jury had “sufficient information to assess [Ellsworth’s] ... credibility[.]” United States v. Cazares, 788 F.3d 956, 983-84 (9th Cir. 2015).

3. A district court may, for good cause, remove “any jurors who are unable to perform or who are disqualified from performing their duties.” Fed. R. Crim. P. 24(c)(1); see Williams v. Cavazos, 646 F.3d 626, 652 (9th Cir. 2011), rev’d on other grounds sub nom. Johnson v. Williams, 568 U.S. 289, 133 S.Ct. 1088, 185 L.Ed.2d 105 (2013). The district court didn’t abuse its *288 discretion because it had good cause to remove Juror 9.

4. There being no individual errors, Lat-ka’s cumulative error claim fails.

AFFIRMED

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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696 F. App'x 287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-richard-latka-ca9-2017.

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