USA v. Gabriel Watter

Filing

FILED OPINION (J. CLIFFORD WALLACE, JEROME FARRIS and JAY S. BYBEE) AFFIRMED. Judge: JCW Authoring, FILED AND ENTERED JUDGMENT. [8655219]

Case: 11-10362

06/05/2013

ID: 8655219

DktEntry: 68-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ,
Plaintiff - Appellee,

No. 11-10362

v.

D.C. No.
2:09-cr-00198JAM-1

GABRIEL DEAN WATTERS,
Defendant - Appellant.
OPINION

Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted
January 17, 2013—San Francisco, California
Filed June 5, 2013
Before: J. Clifford Wallace, Jerome Farris,
and Jay S. Bybee, Circuit Judges.
Opinion by Judge Wallace

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UNITED STATES V . WATTERS
SUMMARY*

Criminal Law
Affirming a conviction for making a false statement and
obstruction of justice under 18 U.S.C. §§ 1001 and 1512(c),
the panel rejected the defendant’s contention that the district
court erred by not including the words “evil” and “wicked” in
its instruction to the jury on the meaning of “corruptly” in
§ 1512(c).

COUNSEL
Mark J. Reichel (argued), Reichel & Plesser, L.L.P.,
Sacramento, California, for Defendant-Appellant.
R. Steven Lapham (argued) and Lee S. Bickley, Assistant
United States Attorneys, Sacramento, California, for PlaintiffAppellee.

OPINION
WALLACE, Senior Circuit Judge:
Watters appeals from his conviction for making a false
statement and obstruction of justice under 18 U.S.C. §§ 1001
and 1512(c). In a separately filed unpublished disposition we

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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consider most of Watters’s claims. In this opinion we deal
only with his claim that the district court gave an erroneous
instruction on 18 U.S.C. § 1512(c). We have jurisdiction
under 28 U.S.C. § 1291 and we affirm.
I
On April 29, 2009, Watters was indicted on nineteen
counts of conspiracy, transportation of stolen vehicles, and
sale or receipt of stolen vehicles under 18 U.S.C. §§ 371,
2312, and 2313. The government alleged that Watters
traveled to New Orleans in the wake of Hurricane Katrina as
part of an unlawful scheme to take and sell vehicles left
behind by their owners during the storm.
In the time between the indictment and his trial, Watters
lived with his cousin Starr for six weeks. In 2008, the Federal
Bureau of Investigation (FBI) contacted Starr to discuss
Watters. Starr left with the impression that the FBI wanted
Starr to find out whatever he could about Watters’s car sales
and report back.
Starr testified at trial that while he and Watters lived
together, Watters had stated that he planned to acquire a
forged receipt to show that he had purchased some of the
vehicles in question. Starr relayed this information to the FBI.
At a subsequent pretrial hearing, Watters’s attorney gave
a copy of a receipt to the government purportedly showing
that Watters purchased some of the vehicles on which the
indictment was based from a salvage yard in New Orleans.
Shortly thereafter, the government filed a superseding
indictment against Watters alleging, in additional to the

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UNITED STATES V . WATTERS

original charges, that Watters obstructed justice and made a
false statement.
Watters was subsequently convicted of obstruction of
justice and making a false statement and acquitted on all
other charges. He appeals from that judgment on multiple
grounds. The only argument we consider here is whether the
district court properly charged the jury as to the meaning of
the word “corruptly” in 18 U.S.C. § 1512(c). We review de
novo whether an instruction correctly defines the elements of
an offense. United States v. Anaya-Acosta, 629 F.3d 1091,
1093 (9th Cir. 2011).
II
18 U.S.C. § 1512(c) penalizes one who “corruptly . . .
obstructs, influences, or impedes any official proceeding, or
attempts to do so.” The district court instructed the jury that
“corruptly” meant acting with “consciousness of
wrongdoing.” Watters argues that the court should have
instead instructed the jury that “corruptly” means “acting
with an evil or wicked purpose,” relying on language in
Arthur Andersen LLP v. United States, 544 U.S. 696 (2005)
and United States v. Ryan, 455 F.2d 728 (9th Cir. 1972).
As a threshold matter, we must make clear that Arthur
Andersen defined terms found in 18 U.S.C. § 1512(b), which
is formulated differently than section 1512(c), the provision
at issue here. Section 1512(b) penalizes “knowingly” doing
one of four things, one of which is “corruptly persuad[ing].”
Arthur Andersen analyzed the meaning of “knowingly
corruptly,” and concluded with a definition that was a
synthesis of the two terms: “consciousness of wrongdoing.”
544 U.S. at 705–06 (“Joining these meanings together here

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makes sense both linguistically and in the statutory scheme.
Only persons conscious of wrongdoing can be said to
knowingly . . . corruptly persuade”) (internal quotation marks
omitted). Section 1512(c), on the other hand, does not have
a “knowingly” component. It follows that using Arthur
Andersen’s formulation to define section 1512(b) would
impose an unnecessary knowledge requirement.
However, the flaw in the instruction does not require
reversal—if anything, the district court placed a higher
burden of proof on the government than section 1512(c)
demands. If the jury convicted under the higher burden, it
would have convicted under the lower. Thus, it is “clear
beyond a reasonable doubt that a rational jury would have
found the defendant guilty absent the error.” United States v.
Awad, 551 F.3d 930, 938 (9th Cir. 2009).
We need not, at this point, launch into a full scale
interpretive process to come up with a definition of
“corruptly” in section 1512(c)—what would be an issue of
first impression—because the parties have not raised it.
Rather, Watters has restricted his argument to the proposition
that Arthur Andersen and Ryan required the inclusion of the
words “wicked” and “evil.” We therefore will confine our
analysis to those cases, and leave the issue of a
comprehensive definition of “corruptly” in section 1512(c)
for a case in which it is properly raised.
Obviously, because Arthur Andersen is not directly
applicable to section 1512(c), Watters is wrong that the case
required the district court to define corruptly in the manner he
suggests. Even if some part of Arthur Andersen’s reasoning
regarding section 1512(b) could be stretched to cover section
1512(c), Watters’s argument would fail. While the Court in

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Arthur Andersen did observe, citing various dictionaries, that
“corruptly” is generally associated with “wrongful, immoral,
depraved, or evil,” 544 U.S. at 705, the Court’s holding was
not that the definition of “corruptly” had to include those
words. Rather, consideration of the dictionaries was merely
a step towards the Court’s ultimate conclusion, which was
that to act “knowingly corruptly” requires “consciousness of
wrongdoing.” Id. at 706. Therefore, Arthur Andersen does not
require inclusion of the words “evil” or “wicked” when
defining “corruptly” in section 1512(b), and certainly cannot
be read to require those words in the definition of section
1512(c).
As for Ryan, it is true that the opinion states that “[t]he
word ‘corrupt’ in [18 U.S.C. § 1503] means for an evil or
wicked purpose.” 455 F.2d at 734. However, to whatever
extent this statement about section 1503 is even applicable to
section 1512(c), we have held that it is dicta. See United
States v. Rasheed, 663 F.2d 843, 852 (9th Cir. 1981).
We therefore reject Watters’s argument that the district
court erred by not including the words “evil” and “wicked” in
the challenged instruction.
AFFIRMED.

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