                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                            NOV 12 2019
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
UNITED STATES,                                   No. 18-30119

              Plaintiff-Appellee,                D.C. No. 2:16-cr-00100-JCC-2

 v.
                                                 MEMORANDUM*
RANDALL FOX,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Western District of Washington
                   John C. Coughenour, District Judge, Presiding

                           Submitted October 24, 2019**
                               Seattle, Washington

Before: CLIFTON and IKUTA, Circuit Judges, and RAKOFF,*** District Judge.

      Randall Fox appeals his one-count conviction for violation of the Act to

Prevent Pollution from Ships (APPS), 33 U.S.C. § 1901 et seq., and associated

      *
             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 Fed. R. App. P. 34(a)(2).
      ***
           The Honorable Jed S. Rakoff, District Judge for the Southern District
of New York, sitting by designation.
regulations. He argues on appeal that the trial court incorrectly instructed the jury

on the elements of the offense and that the trial court violated the Confrontation

Clause by introducing certain documents produced by the defendant’s father in

response to a grand jury subpoena. We have jurisdiction under 28 U.S.C. § 1291.

We reject both of Fox’s arguments, and we accordingly affirm his conviction.

      First, we hold that any error in the district court’s instructions to the jury was

harmless. The trial court instructed the jury that an APPS violation involves four

elements, essentially including an extra element beyond the three requested by the

defense. The district court’s decision to include this element could only have made

it harder for the jury to convict Fox, because the prosecution must prove every

element of a crime beyond a reasonable doubt. Sullivan v. Louisiana, 508 U.S. 275,

277 (1993). Likewise, because Fox’s theory of the case at trial was that he did not

knowingly discharge oil or an oily mixture into the sea, any confusion caused by

the jury instruction referring to pollution prevention equipment was harmless.

      We also hold that the law of the case doctrine did not bar this instruction,

even though it differed from the corresponding instruction given at co-defendant

Bingham Fox’s trial. The law of the case doctrine “applies most clearly where an

issue has been decided by a higher court,” and otherwise “does not preclude a court

from reassessing its own legal rulings in the same case.” Askins v. U.S. Dep’t of
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Homeland Sec., 899 F.3d 1035, 1042 (9th Cir. 2018). And although this Court has

previously applied the doctrine where co-defendants were tried together, see

United States v. Schaff, 948 F.2d 501 (9th Cir. 1991), Randall and Bingham Fox

were tried separately and faced different substantive counts.

         Finally, the trial court did not violate the appellant’s Confrontation Clause

rights by admitting some of the documents that Bingham Fox produced in response

to the grand jury subpoena. These documents were not “testimonial,” because they

did not provide evidence of the non-existence of other documents. See United

States v. Bustamante, 687 F.3d 1190, 1193-95 (9th Cir. 2012); see also Melendez-

Dias v. Massachusetts, 557 U.S. 305, 309-10 (2009). Although Bingham Fox’s

cover letter contained a list of all the documents he produced in response to the

grand jury subpoena, the letter did not state that it contained a list of all of Native

Sun’s receipts for oily waste disposal from the relevant time period. Therefore, the

jury could not reasonably have read the receipts introduced at trial, even in

conjunction with the cover letter, as evidence of the lack of other receipts.

Furthermore, any Confrontation Clause error was harmless, because the

purportedly testimonial portion of the cover letter was not used for any purpose at

trial.



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      We have considered the appellant’s other arguments and find them

unpersuasive.

      AFFIRMED.




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