886 F. 2d 1320 - United States v. G Alvord

MEMORANDUM*

Appellant, Thomas G. Alvord ("Alvord"), appeals his conviction on one count of violating 18 U.S.C. Sec. 1029(b)(2) (conspiracy to traffic in and use one or more access devices), one count of violating 18 U.S.C. Sec. 1029(a)(2) (unauthorized use of an access device), and six counts of violating 18 U.S.C. Sec. 1029(a)(3) (possession of fifteen or more unauthorized access devices) on the grounds that the district court: (1) committed prejudicial error under Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), when it told the jury that "usually a person intends to do that which he actually does"; (2) committed error when it refused to give Alvord's last minute instructions regarding specific intent; and (3) committed error in its supplemental instruction that "ignorance of the law is no excuse." We affirm.

Appellant Alvord owned an electronics repair shop in South Lake Tahoe, California. In early 1984, he became interested in "hacking." Hackers dial a long distance telephone carrier's access number and attempt to find a working access code by systematically punching in different combinations of digits. From then until his arrest on September 1, 1987, Alvord supplied access codes to customers for pay.

Alvord essentially admitted that he had the done the acts alleged in the indictment. His defense was that he lacked the intent to defraud, based on testimony that: (1) he had never tried to hide his hacking business; (2) he had distributed business cards and had placed an advertisement in the telephone directory advertising the services he offered; (3) he had openly told investigators about what he was doing; and (4) he believed that his practice was somehow protected by a constitutional right of privacy.

After the jury had retired it asked a number of questions to which the court responded partly in writing, partly extemporaneously in open court. At one point the jury also indicated that it might be hung. For this reason appellant contends that error in the supplemental instructions on intent to defraud and ignorance of the law being no excuse were especially important.

A district court's formulation of jury instructions is reviewed for abuse of discretion. United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir.1985). Jury instructions are considered as a whole to determine if they are misleading or inadequate. United States v. Burgess, 791 F.2d 676, 678 (9th Cir.1986). Isolated individual statements within the jury instructions do not by themselves establish error. United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1455 (9th Cir.1986). The necessity, extent, and character of additional jury instructions are matters within the discretion of the court. United States v. Hayes, 794 F.2d 1348 (9th Cir.1986).

If appellant has failed to object to an instruction at trial, the standard for reversal is plain error. See United States v. Flake, 746 F.2d 535 (9th Cir.1984), cert. denied, 469 U.S. 1225 (1985); United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979 (1979). If a timely objection has been made, the standard for reversal is harmless error.

Sandstrom errors are reviewed under the harmless error standard. See Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986); see also McKenzie v. Risley, 842 F.2d 1525, 1530 (9th Cir.1988) (en banc ) ("whether 'the facts found by the jury were such that it is clear beyond a reasonable doubt that if the jury had never heard the impermissible instruction its verdict would have been the same' ") (quoting Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987)).

Shortly before closing arguments began, defendant submitted two proposed jury instructions relating to "specific intent." The court declined to give them on the grounds that they were late and were covered by the government's proposed instructions. Apart from expressing his desire to compare the government's intent to defraud instruction to his own, appellant voiced no objection to omission of his proposed intent to defraud instruction.

The jury was properly instructed on intent to defraud. Even assuming that appellant preserved his right to assign error, see Fed.R.Cr.P. 30, there was none in failing also to instruct on "specific intent." Stock "specific intent" instructions of the sort proferred have been disapproved as confusing and misleading, see, e.g., United States v. Arambasich, 597 F.2d 609, 612 (7th Cir.1979); see also Liparota v. United States, 471 U.S. 419, 433 n. 16, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), and neither was in the form recommended by the Manual of Model Jury Instructions for the Ninth Circuit, see Sec. 5.06, Comment.

Appellant contends that Sandstrom error occurred on the second day of deliberation, when the jury met in open court and the court responded to questions incorrectly by: (1) "condensing" the definition of "intent to defraud" to "if he knew what he was doing, and he did it because he was going to either profit by it or cause somebody else to lose by it"; (2) failing to explain, as it had in the written jury instructions, that "intent to defraud" means "to act willfully or with conscious objective, desire or purpose to deceive or cheat"; (3) concurring with a juror's understanding that "it doesn't matter whether or not you knew it was cheating, it's just the fact whether or not you cheated the entity out of their rightful gain or that you were able to make some financial gain through the actions that you did"; and (4) explaining to the jury that "if [defendant] was insane or something like that, he wouldn't have the intent, but usually a person intends to do that which he actually does."

In Sandstrom, the Supreme Court held unconstitutional a jury instruction which stated that "[t]he law presumes that a person intends the ordinary consequences of his voluntary acts." 442 U.S. at 513. The Court reasoned that this instruction could be interpreted by a jury as shifting the burden of proof on intent from the government to the defendant, thereby undermining defendant's constitutional right to the presumption of innocence. Id. at 524.

Of the court's supplemental instructions in this case, only the last, "usually a person intends to do that which he actually does," arguably shifts the burden of proving an essential element of the offense charged. Cf. McKenzie v. Risley, 842 F.2d 1525, 1529 (9th Cir.1988) ("a person is presumed to intend the ordinary consequences of his voluntary act"); Evans v. Lewis, 855 F.2d 631, 635 (9th Cir.1988) ("[y]ou may determine that the defendant intended to do that act if he did it voluntarily"); United States v. Washington, 819 F.2d 221, 225 (9th Cir.1987) ("[u]se of a weapon or other instrument in a way that causes death is evidence of malice aforethought"). However, "[i]n determining the nature of an inference, the test is simply how 'a reasonable juror could have interpreted the instruction.' " Evans, 855 F.2d at 635 (quoting Sandstrom, 442 U.S. at 514)). Under the court's wording, the jury was not constrained to believe that a person necessarily intends to do that which he actually does; because the court used the term "usually" rather than "always," the inference created is a permissive one, rather than the mandatory presumption necessary to sustain a Sandstrom error. Cf. Evans, 822 F.2d at 635 ("the instruction '[y]ou may determine that the defendant intended to do the act if he did it voluntarily' states a permissive inference"); Washington, 819 F.2d at 225 ("Advising the jury that it may treat the use of a deadly weapon as evidence of malice aforethought is not the same as requiring it to presume or infer malice aforethought from that evidence"). Moreover, the court did, on at least two separate occasions, elsewhere properly instruct the jury that the government bears the burden of proof. Accordingly, the district court did not commit reversible Sandstrom error.

The court also gave supplemental instructions to the effect that "ignorance of the law is no excuse." Though appellant does not contend that statement of the "ignorance of the law" principle is per se error, he does contend that, in the circumstances of this case, it misled the jury and had a prejudicial effect. Appellant argues that a similar situation was presented in United States v. Petersen, 513 F.2d 1133, 1135 (9th Cir.1975). In that case, we determined that reversal was proper since the jury had "indicated that it was having difficulty with the terms intent and motive, and the judge's summary treatment of the meaning of ignorance of the law may have caused the jury to eliminate it as a factor affecting specific intent."

This case differs crucially from Petersen in that, in this case, appellant failed to make a timely objection to the court's "ignorance of the law" instruction. Appellant contends that he made general, off-the-record objections to the court's written response to the jury's written questions as well as to the court's oral response to the jury's oral questions. However, the record reflects no specific objection to the "ignorance of the law" instructions. Because appellant has failed to show a serious miscarriage of justice, there was no reversible error.

AFFIRMED.