United States v. Richard Latka | Court Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT AUG 18 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, No. 16-50044

Plaintiff-Appellee, D.C. No. 2:15-cr-00095-DSF-1 v.

RICHARD DOUGLAS LATKA, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding

Argued and Submitted August 7, 2017 Pasadena, California

Before: REINHARDT, KOZINSKI and CHRISTEN, Circuit Judges.

1. Latka’s indictment was sufficient because “it contain[ed] the elements

of the charged crime in adequate detail to inform [him] of the charge, and . . .

enable[d] him to plead double jeopardy.” See United States v. Morlan, 756 F.2d

1442, 1444 (9th Cir. 1985) (citation omitted).

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. page 2 Further, the indictment wasn’t “constructive[ly 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 (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 Latka’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). page 3 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 (2013). The

district court didn’t abuse its discretion because it had good cause to remove Juror

4. There being no individual errors, Latka’s cumulative error claim fails.

AFFIRMED

Opinions