United States of America v. Bret Ogilvie

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA
Plaintiff - Appellee,
v.
BRET OGILVIE,
Defendant - Appellant.
No. 14-10163
D.C. No. 3:12-cr-00121-LRH-
WGC-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted November 17, 2015**
San Francisco, California
Before: FERNANDEZ and M. SMITH, Circuit Judges and MORRIS,*** District
Judge.
FILED
DEC 17 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision without
oral argument. See Federal Rule of Appellate Procedure 34(a)(2).
*** The Honorable Brian M. Morris, District Judge for the U.S. District Court
for the District of Montana, sitting by designation.
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Bret Ogilvie appeals his convictions for conspiracy to defraud the United
States, 18 U.S.C. § 371, corruptly interfering with the IRS, 26 U.S.C. § 7212(a),
and five counts of making false claims, 18 U.S.C. § 287. Ogilvie argues that (1) no
rational jury could have found sufficient evidence to convict him of any count
charged in the Indictment; and (2) he was denied his constitutional right to a fair
trial because he did not receive complete discovery and because he was denied the
ability to subpoena witnesses. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
I
We review de novo the sufficiency of the evidence supporting a defendant’s
conviction. United States v. Green, 592 F.3d 1057, 1065 (9th Cir. 2010). This
Court must affirm the conviction if, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 319 (1979); see also United States v. Nevils, 598 F.3d 1158,
1163–65 (9th Cir. 2010). Under this deferential standard, we conclude that the
Government provided sufficient evidence to allow a rational trier of fact to convict
Ogilvie of all counts charged in the Indictment.
II
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To reverse a conviction for a discovery violation, we must find not only that
the district court abused its discretion, but also that the error resulted in prejudice
to substantial rights. United States v. Baker, 10 F.3d 1374, 1398 (9th Cir. 1993),
overruled on other grounds by United States v. Nordby, 225 F.3d 1053 (9th Cir.
2000). The defendant must show a likelihood that the verdict would have been
different had the Government complied with the discovery rules. Id. at 1398 n. 8.
The Government’s failure to provide information as required by Brady v.
Maryland, 373 U.S. 83 (1963), rises to the level of constitutional error only if a
reasonable probability exists that the result of the proceeding would have been
different had the Government disclosed the information. Kyles v. Whitley, 514 U.S.
419, 434–36 (1995).
The Government conceded during trial that it had failed to produce the IRS
agent’s case history. Both the district court and the Government advised Ogilvie
that the revenue agent remained available for additional cross-examination should
Ogilvie find it necessary after having reviewed the file. At no time during the
remaining day of trial did Ogilvie again raise the issue or re-call the agent to
question her about the case history. Ogilvie also did not request dismissal of his
case, a continuance, a new trial, or any other relief based on the Government’s late
production of the file. Fed. R. Crim. P. 16(d)(2).
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Ogilvie has failed to allege any specific prejudice attributable to the
Government’s untimely production of the revenue agent’s case history. Likewise,
he never has claimed to have found any exculpatory evidence in the agent’s case
history file. Ogilvie has failed to establish any “likelihood that the verdict would
have been different had the Government complied with the discovery rules” and
timely provided the agent’s case history. Baker, 10 F.3d at 1398, n.8. Accordingly,
we reject this claim.
III
We review de novo ineffective assistance of counsel claims. United States v.
Nickerson, 556 F.3d 1014, 1018 (9th Cir. 2009). Ogilvie contends that his standby
counsel’s failure to subpoena witnesses deprived him of the ability to put on any
defense whatsoever and denied him a fair trial.
Assuming that Ogilvie would not be foreclosed from raising this issue, the
record arguably provides at least a hint of support for Ogilvie’s belief that the
district court had ordered standby counsel to subpoena witnesses on his behalf. The
record remains silent, however, about what Ogilvie actually said or requested of his
standby counsel. We cannot determine on this record whether Ogilvie’s standby
counsel strategically declined to subpoena any witnesses. We do, however, note
that Ogilvie’s witness list contained numerous witnesses who would not have had
any relevant testimony to offer.
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The Government asserts that the record proves inadequate to consider issues
regarding the performance of Ogilvie’s standby counsel. United States v. Mohsen,
587 F.3d 1028 (9th Cir. 2009). An appellate court generally should not review
ineffective assistance of counsel claims on direct appeal because they usually lack
“a sufficient evidentiary record as to what counsel did, why it was done, and what,
if any, prejudice resulted.” Id. at 1033. An evidentiary hearing would be required
to establish these facts.
Without additional evidentiary support, Ogilvie likely cannot show prejudice
from any alleged failure of his standby counsel to subpoena witnesses on his
behalf. The district court gave Ogilvie and standby counsel an opportunity to
discuss the issue of calling witnesses in his defense after the Government had
concluded its case in chief. Standby counsel informed the court outside the
presence of the jury that three of the four witnesses whom the court would allow
Ogilvie to call on short notice, in his professional opinion, were irrelevant to
Ogilvie’s case. The court excluded the fourth witness from testifying as irrelevant.
Even if Ogilvie’s standby counsel had subpoenaed these witnesses, it
remains unclear from the record whether the court would have allowed them to
testify on his behalf. The Government correctly contends that the evidentiary
record remains incomplete regarding the effectiveness of Ogilvie’s standby counsel
and we decline to further consider that claim.
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AFFIRMED.
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