United States v. Ricardo Bordallo, Governor of Guam (1988)

Nonetheless, we construe the arguments of Appellants, including Patrick, as also resting on a defendant’s broader and more fundamental right—rooted in the constitutional guarantee “that no one shall be deprived of liberty without due process of law”—to have “an opportunity to be heard in his defense,” which “include[s], as a minimum, a right to examine the witnesses against him, to offer testimony, and to be represented by counsel.” Rock v. Arkansas, 483 U.S. 44, 51 (1987) (…

See also United States v. Mitchell, 867 F.2d 1232, 1233 (9th Cir.1989) (per curiam) (holding that McNally v. United States, 483 U.S. 350, 356-60 , 107 S.Ct. 2875 , 97 L.Ed.2d 292 (1987), which narrowed the federal mail fraud statute to protect only property rights, is retroactive); United States v. Sood, 969 F.2d 774, 775-76 (9th Cir.1992) (holding that United States v. Bordallo, 857 F.2d 519, 524 (9th Cir.1988), which narrowed the federal bribery statute to exclude applicat…

The district court thus conducted “voir dire” of Juror H at side bar when it asked about her ability to be fair and impartial in light of her personal experiences with bank robbery, because the conversation concerned whether she was “qualified and suitable to serve on a jury.” We have previously observed that “[tjhere is authority that Rule 43 requires the defendant’s presence at the voir dire examination of prospective jurors.” United States v. Bordallo, 857 F.2d 519, 522 (…

In United States v. Bordallo, 857 F.2d 519, 523 (9th Cir.1988), the Court of Appeals for the Ninth Circuit commented that the defendant’s right to be present “does not mean ... that the judge of a court cannot organize his court and qualify his prospective jurors generally, without bringing into court for such a proceeding each and every defendant who may be tried during the entire term.” Similarly, the Court of Appeals for the Second Circuit has held that “routine administr…

United States v. Bordallo, 857 F.2d 519, 522 (9th Cir.1988).

See United States v. Rodolitz, 786 F.2d 77, 81-82 (2d Cir.1986); see also United States v. Gabriel, *237 125 F.3d 89, 102 (2d Cir.1997); United States v. Bordallo, 857 F.2d 519, 525 (9th Cir.1988), opinion amended on reh’g by 872 F.2d 334 (9th Cir.1989).

Only "[r]arely will an improper jury instruction justify a finding of plain error." United States v. Bordallo, 857 F.2d 519, 527 (9th Cir.1988), modified on other grounds, 872 F.2d 334 (9th Cir.1989).

United States v. Bordallo, 857 F.2d 519, 527 (9th Cir.1988); United States v. Green, 745 F.2d 1205, 1209 (9th Cir.1984), cert. denied, 474 U.S. 925 (1985).

Id. 15 "Reversal of a criminal conviction on the basis of plain error is an exceptional remedy, which we invoke only when it appears necessary to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process." 16 Id. at 1095 , quoting United States v. Bordallo, 857 F.2d 519, 527 (9th Cir.1988). 17 As in Holland, here there was "copious" evidence of Ball's guilt.

United States v. Bordallo, 857 F.2d 519, 527 (9th Cir.1988), cert. denied, 493 U.S. 818 (1989).

In so reviewing, we must evaluate "whether the jury instructions as a whole are misleading or inadequate to guide the jury's deliberation." United States v. Joetzki, 952 F.2d 1090, 1095 (9th Cir.1992) (emphasis added). " 'A single instruction may not be judged in artificial isolation, but must be viewed in the context of the overall charge.' " United States v. Marsh, 894 F.2d 1035, 1040 (9th Cir.), cert. denied, 493 U.S. 1083 (1990) (citing United States v. Bordallo, 857 F.2…

United States v. Posey, 864 F.2d 1487, 1491 (9th Cir.1989) (evidence inadmissible where it is "not directly pertinent to establishing appellant's state of mind"); United States v. Bordallo, 857 F.2d 519, 526 (9th Cir.1988) (government's evidence regarding political attitudes towards bribery in Guam "irrelevant because even if payoffs were common, this does not establish [appellant's] involvement"), cert. denied, 493 U.S. 818 (1989).

“Reversal of a criminal conviction on the basis of plain error is an exceptional remedy, which we invoke only when it appears necessary to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process.” United States v. Bordallo, 857 F.2d 519, 527 (9th Cir.1988) (quotation omitted), modified on other grounds, 872 F.2d 334 (9th Cir.), cert. denied, 493 U.S. 818 , 110 S.Ct. 71 , 107 L.Ed.2d 38 (1989).

United States v. Bordallo, 857 F.2d 519, 527 (9th Cir.1988), amended, 872 F.2d 334 (9th Cir.), cert. denied, 493 U.S. 818 (1989). 7 The prosecutor's comment on the evidence corroborating Patin's testimony was clearly permissible.

"Jury instructions, even if imperfect, are not a basis for overturning a conviction absent a showing they constitute an abuse of the trial court's discretion." 6 United States v. Bordallo, 857 F.2d 519, 527 (9th Cir.1988) (citations omitted), amended, 872 F.2d 334 , cert. denied, 493 U.S. 818 (1989).

Moreover, "the trial court has substantial latitude [in fashioning the instructions] so long as the instructions fairly and adequately cover the issues presented." United States v. Bordallo, 857 F.2d 519, 527 (9th Cir.1988), amended on other grounds, 872 F.2d 334 , cert. denied, 493 U.S. 818 , 110 S.Ct. 71 , 107 L.Ed.2d 38 (1989).

We note that only *790 "[rjarely will an improper jury instruction justify a finding of plain error.” United States v. Bordadlo, 857 F.2d 519, 527 (9th Cir.1988), modified on other grounds, 872 F.2d 334 (9th Cir.1989), ce rt. denied, 493 U.S. 818 , 110 S.Ct. 71 , 107 L.Ed.2d 38 (1989). 13 .

United States v. Bordallo, 857 F.2d 519, 527 (9th Cir.1988), cert. denied, 493 U.S. 818 (1989).

United States v. Bordallo, 857 F.2d 519, 527 (9th Cir.1988), amended 872 F.2d 334 , cert. denied, 493 U.S. 818 , 110 S.Ct. 71 , 107 L.Ed.2d 38 (1989). *1096 Finally, proposed instruction 10 merely contains an alternative definition of intent to defraud: the contemplation of “some actual harm or injury” to the alleged victims.

Moreover, jury instructions are to be read in the "context of the overall charge." United States v. Bordallo, 857 F.2d 519, 527 (9th Cir.1988) (citations omitted) modified on other grounds, 872 F.2d 334 (9th Cir.1989), cert. denied, 110 S.Ct. 71 (1989).

We note that only "[r]arely will an improper jury instruction justify a finding of plain error.” United States v. Bordado, 857 F.2d 519, 527 (9th Cir.1988), modified on other grounds, 872 F.2d 334 (9th Cir.1989), ce rt. denied, — U.S. -, 110 S.Ct. 71 , 107 L.Ed.2d 38 (1989). 13 .

In United States v. Bordallo, 857 F.2d 519, 524-26 (9th Cir. 1988), amended 872 F.2d 334 , cert. denied, — U.S. -, 110 S.Ct. 71 , 107 L.Ed.2d 38 (1989), this Court stated that King appears to conflict with the Fifth Circuit’s decision in United States v. Wesley, 748 F.2d 962 (5th Cir.1984), cert. denied sub nom.

“In reviewing jury instructions, we give the trial judge ‘substantial latitude’ so long as the instructions ‘fairly and adequately cover the issues presented.’ ” United States v. Bordallo, 857 F.2d 519, 526 (9th Cir.1988) (quoting United States v. Abushi, 682 F.2d 1289, 1299 (9th Cir.1982), amended, 872 F.2d 334 (9th Cir.), cert. denied, — U.S. -, 110 S.Ct. 71 , 107 L.Ed.2d 38 (1989). “ ‘[A] single instruction to the jury may not be judged in artificial isolation, but must b…

“Reversal of a criminal conviction on the basis of plain error is an exceptional remedy, which we invoke only when it appears necessary to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process.” United States v. Bordallo, 857 F.2d 519, 527 (9th Cir.1988) (internal quotation omitted).

Furthermore, we have previously noted that only “[rjarely will an improper jury instruction justify a finding of plain error.” United States v. Bordallo, 857 F.2d 519, 527 (9th Cir.1988), modified on other grounds, 872 F.2d 334 (9th Cir.1989). 2.

United States v. Bor dallo, 9th Cir., 857 F.2d 519, 522-23 (1988), cert. denied, 493 U.S. 818 , 110 S.Ct. 71 , 107 L.Ed.2d 38 (1989).

See United States v. Rodolitz, 786 F.2d 77, 81-82 (2d Cir. 1986); see also United States v. Gabriel, 125 F.3d 89, 102 (2d Cir. 1997); United States v. Bordallo, 857 F.2d 519, 525 (9th Cir. 1988), opinion amended on reh’g by 872 F.2d 334 (9th Cir. 1989).

See United States v. Bordallo, 857 F.2d 519, 523 (9th Cir. 1988) (applying the “harmless error rule” of Chapman v. California, 386 U.S. 18 , 21–22 (1967) (citation omitted)); see also Weaver, 582 U.S. at 299 (holding that classifying something as a “structural error” “means only 5 that the government is not entitled to deprive the defendant of a new trial by showing that the error was ‘harmless beyond a reasonable doubt’” (quoting Chapman, 386 U.S. at 24 )).

See United States v. Bordallo, 857 F.2d 519 , 522–23 (9th Cir. 1988).

Assuming arguendo that the voir dire procedures violated defendants’ statutory right to be present under Federal Rule of Criminal Procedure 43, we hold that the error was harmless because “there is no reasonable possibility that prejudice resulted from the [defendant’s] absence.” United States v. Rosales-Rodriguez, 289 F.3d 1106, 1109 (9th Cir. 2002) (quoting United States v. Kupau, 781 F.2d 740, 743 (9th Cir. 1986)); see also United States v. Bordallo, 857 F.2d 519, 523 (9t…

See, e.g., United States v. Bordallo, 857 F.2d 519, 523 (9th Cir.1988).

See United States v. Bordallo, 857 F.2d 519, 524 (9th Cir.1988); Territory of Guam v. Landgraf, 594 F.2d 201, 202 (9th Cir.1979) ("When Congress has intended to extend § 1443(1) to an entity other than one of the fifty states, it has done so expressly."). 5 This proposition was recently confirmed by the Supreme Court in Kircher, where the Court reiterated that "`[w]here a remand order is based on one of [the grounds enumerated in 28 U.S.C. § 1447 (c)], review is unavailable …

See United States v. Bordallo, 857 F.2d 519, 524 (9th Cir.1988); Territory of Guam v. Landgraf, 594 F.2d 201, 202 (9th Cir.1979) ("When Congress has intended to extend § 1443(1) to an entity other than one of the fifty states, it has done so expressly.”). 5 .

See also United States v. Kessi, 868 F.2d 1097, 1102 (9th Cir.1989). " 'Plain error is highly prejudicial error affecting substantial rights, and is found only in exceptional circumstances.' " United States v. Williams, 990 F.2d 507, 511 (9th Cir.) (quoting Kessi, 868 F.2d at 1102 ), cert. denied, 114 S.Ct. 333 (1993). " 'Rarely will an improper jury instruction justify a finding of plain error.' " Williams, 990 F.2d at 512 (quoting United States v. Bordallo, 857 F.2d 519, 5…

See United States v. Bordallo, 857 F.2d 519, 527 (9th Cir.1988) ("Rarely will an improper jury instruction justify a finding of plain error."), amended on other grounds, 872 F.2d 334 (9th Cir.), cert. denied, 493 U.S. 818 (1989); see also United States v. Kessi, 868 F.2d 1097, 1102 (9th Cir.1989). 17 We reject Caravalho's contention that the jury instructions were misleading because Instruction No. 13 requires the jury to find a violation of § 924(c)(1) regardless of whether…

See United States v. Bordallo, 857 F.2d 519, 527 (9th Cir.1988) (" '[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.' ") (quoting United States v. Park, 421 U.S. 658, 674 (1975)), amended on other grounds, 872 F.2d 334 (9th Cir.), cert. denied, 493 U.S. 818 (1989). 47 Benary also challenges the absence of a specific unanimity instruction.

See United States v. Bordallo, 857 F.2d 519, 527 (9th Cir.1988), amended on other grounds, 872 F.2d 334 (9th Cir.), cert. denied, 493 U.S. 818 (1989).

See United States v. Bordallo, 857 F.2d 519, 526 (9th Cir.1988). 6 We find no colorable argument that admitting evidence of political influence violates due process. 7 Real Bird and Jefferson also challenge the court's calculation of restitution.

See 18 U.S.C. § 1512 ; see also United States v. Bordallo, 857 F.2d 519, 524 (9th Cir.1988), amended on other grounds, 872 F.2d 334 (9th Cir.), cert. denied, 493 U.S. 818 , 110 S.Ct. 71 , 107 L.Ed.2d 38 (1989).

See 18 U.S.C. § 1512 ; see also United States v. Bordallo, 857 F.2d 519, 524 (9th Cir.1988), amended on other grounds, 872 F.2d 334 (9th Cir.), cert. denied, 493 U.S. 818 , 110 S.Ct. 71 , 107 L.Ed.2d 38 (1989).

See United States v. Bordallo, 857 F.2d 519, 528 (9th Cir.1988) (reversing convictions for conspiracy to commit extortion because of spill-over prejudice from an erroneous extortion instruction), cert. denied, — U.S. -, 110 S.Ct. 71 , 107 L.Ed.2d 38 (1989).

See, e.g., United States v. Coyne, 4 F.3d 100 (2d Cir.1993) (affirming § 666 conviction of county executive), cert. denied, — U.S. -, 114 S.Ct. 929 , 127 L.Ed.2d 221 (1994); United States v. Santopietro, 996 F.2d 17 (2d Cir.1993) (affirming § 666 conviction of city mayor), ce rt. denied, — U.S. -, 114 S.Ct. 922 , 127 L.Ed.2d 215 (1994); see also United States v. Bordallo, 857 F.2d 519 (9th Cir.1988) (assuming Governor of Guam to be agent, yet reversing § 666 conviction on gr…