                           NOT FOR PUBLICATION                         FILED
                    UNITED STATES COURT OF APPEALS                       JUN 7 2019
                                                                    MOLLY C. DWYER, CLERK
                                                                     U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                      No.   17-50345

                Plaintiff-Appellee,            D.C. No.
                                               2:15-cr-00611-SVW-2
 v.

MELISSA MORTON, AKA Melissa Ann                MEMORANDUM*
Morton, AKA Melissa Thomson Morton,
AKA Melissa Thomson, AKA Melissa Ann
Thomson,

                Defendant-Appellant.

                   Appeal from the United States District Court
                       for the Central District of California
                   Stephen V. Wilson, District Judge, Presiding

                       Argued and Submitted May 15, 2019
                              Pasadena, California

Before: NGUYEN and OWENS, Circuit Judges, and ANTOON,** District Judge.

      A jury convicted Defendant-Appellant Melissa Morton and her husband1 of


      *
            This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
      1
           Morton and her husband were tried together, and both were convicted.
Mr. Morton also appealed, but his appeal is not before us.
multiple crimes related to a complex conspiracy to defraud the United States by

filing false tax returns. After Morton’s conviction, the district court sentenced her

to two concurrent 24-month terms of incarceration. Morton now challenges

several aspects of the district court proceedings. Because the parties are familiar

with the background facts of the case, we do not recount them here. We have

jurisdiction under 28 U.S.C. § 1291. After thorough review of the many issues

presented, we affirm.

      1.     Morton first challenges the district court’s order denying her motion

to suppress. She contends that the warrant to search her apartment was both

overbroad and insufficiently particularized. We conclude that the Fourth

Amendment did not require suppression.

      Government agents submitted a warrant application to a United States

Magistrate Judge. The application included two attachments and an 87-page

affidavit. Attachment A described Morton’s apartment, the place to be searched.

Attachment B—attached to the warrant at all times—described 22 categories of

documents and evidence that the agents were authorized to search for and seize.

The affidavit, which an Internal Revenue Service investigator signed, detailed the

probable cause upon which the warrant application was based. The search warrant

application package that the magistrate judge reviewed contained the affidavit, but

the affidavit was not attached to the search warrant. The case agent overseeing the


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search left the affidavit in his locked vehicle across the street from Morton’s

apartment while agents executed the search. Morton raises overbreadth and

particularity challenges to the search warrant.2

      a. Overbreadth

      To avoid overbreadth, a warrant must give “legal, that is, not overbroad,

instructions,” United States v. SDI Future Health, Inc., 568 F.3d 684, 702 (9th Cir.

2009), meaning that “there must be probable cause to seize the particular things

named in the warrant,” id. (alterations omitted) (internal quotation marks and

citations omitted). Probable cause, in turn, means that there is “a fair probability



      2
              In their briefs, the parties argue at length about whether the warrant
“incorporated” the affidavit so as to cure any deficiencies in the warrant. But we
need not reach this issue. “The Fourth Amendment by its terms requires
particularity in the warrant, not in the supporting documents,” Groh v. Ramirez,
540 U.S. 551, 557 (2004) (citations omitted), and thus an affidavit may remedy an
insufficiently particular warrant only if the warrant “incorporated” the affidavit,
see United States v. Prop. Belonging to Talk of the Town Bookstore, Inc. (In re
Seizure of Property Belonging to Talk of the Town Bookstore, Inc.), 644 F.2d 1317,
1319 (9th Cir. 1981) (setting forth the two-pronged incorporation test). But
because an overbreadth evaluation is a type of probable cause inquiry, see United
States v. Weber, 923 F.2d 1338, 1342 (9th Cir. 1990), as amended on denial of
reh’g (Jan. 15, 1991) (referring to the overbreadth requirement as the “probable
cause rule”), we must always evaluate the affidavit—regardless of whether the
warrant at issue properly incorporated that affidavit—when determining whether a
warrant was overbroad. Cf. United States v. Grubbs, 547 U.S. 90, 98 (2006) (“The
Fourth Amendment does not require that the warrant set forth the magistrate’s
basis for finding probable cause . . . .”). Because we conclude that Attachment B
sufficiently particularized the warrant, we need not rely on the affidavit for our
particularity analysis. We therefore need not determine whether the warrant
properly incorporated the affidavit to resolve this case.

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that contraband or evidence of a crime will be found in a particular place, based on

the totality of circumstances.” United States v. Diaz, 491 F.3d 1074, 1078 (9th Cir.

2007) (internal quotation marks and citations omitted). When evaluating probable

cause, we must “ensure that the magistrate had a ‘substantial basis’ for finding

probable cause.” Weber, 923 F.2d at 1343 (quoting Illinois v. Gates, 462 U.S. 213,

238 (1983)).

      Here, the affidavit provided probable cause for the seizure of 21 of the 22

categories of items listed in Attachment B. Specifically, government agents had

probable cause to seize the items listed in categories “a” through “t” and “v” of

Attachment B. These categories describe documents, records, and various

instrumentalities that Morton, her husband, or their related businesses likely used

to facilitate the fraudulent schemes described in the affidavit.

      However, category “u,” which directed agents to seize the “[c]orrespondence

and notes, in both electronic (e-mail) and physical form by and between Sean

Morton, Melissa Morton, Heaven & Earth LLC, any dog walking business, and

any cat breeding business, and/or any third party” (emphasis added), authorized

the seizure of items beyond the scope of the probable cause upon which the

warrant was based. The magistrate judge did not have a substantial basis for

finding probable cause for such a seizure. Cf. SDI Future Health, 568 F.3d at 705

(“[T]his category practically begs the search team to find and to seize the contact


                                           4
information of every person who ever dealt with SDI. It would have been far more

sensible, as well as constitutional, to limit the search to information relating to

[individuals and businesses] . . . likely to turn up conspirators in the alleged fraud.”

(citation omitted)).

      But the overbreadth of category “u” does not fell this warrant. As the

Government noted at oral argument, any seized correspondence encompassed by

category “u” and admitted at trial also falls within the descriptions of other

categories listed in Attachment B. Because the search and seizures were limited to

the proper scope of probable cause, the Fourth Amendment did not require

suppression. See United States v. Luk, 859 F.2d 667, 677–78 (9th Cir. 1988)

(applying the good-faith exception to an overbroad warrant where agents limited

their search and seizures to the scope of probable cause).

      b. Particularity

      Particularity, in the Fourth Amendment context, means that “the warrant

must make clear to the executing officer exactly what it is that he or she is

authorized to search for and seize.” SDI Future Health, 568 F.3d at 702 (internal

quotation marks and citation omitted). This “description must be specific enough

to enable the person conducting the search reasonably to identify the things

authorized to be seized.” Id. (internal quotation marks and citations omitted). The

level of detail required in a warrant, however, “is related to the particular


                                           5
circumstances and the nature of the evidence sought.” Id. (internal quotation

marks and citation omitted). We review the particularity of a warrant de novo. See

United States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986).

      Here, as described in Attachment B, government agents sought 22 categories

of items. Although Attachment B listed many items, it described those items with

particularity—including descriptions of the documents, date ranges within which

the documents had to fall, and entities or individuals to which the documents had

to relate. Attachment B, which was attached to the search warrant, thus satisfies

the particularity requirement regardless of whether the affidavit was incorporated.

See SDI Future Health, 568 F.3d at 702 (“Because the warrant was not vague as to

what it directed law enforcement officers to search for and to seize, we are satisfied

that it did not lack particularity for Fourth Amendment purposes.”).

      Based on the foregoing, we affirm the district court’s order denying

Morton’s motion to suppress.

      2.     Morton next challenges the district court’s denial of her motion for a

mistrial. We review the district court’s decision to deny a mistrial for abuse of

discretion. See United States v. Charmley, 764 F.2d 675, 677 (9th Cir. 1985).

Morton contends that inadmissible testimony by her husband—that Morton was

“in banking for many years”—undercut her defense that she had a good-faith belief

in the legality of the fraudulent schemes in which she and her husband were


                                          6
engaged. We are not persuaded.

      The district court sustained Morton’s objection to her husband’s testimony

on relevance grounds. We need not resolve whether the testimony was admissible

because even if it were not, the district court’s curative action—sustaining an

objection, striking the testimony, and instructing the jury that stricken testimony

should not be considered—dissipated any effect the testimony may have had on the

trial. See United States v. Lemus, 847 F.3d 1016, 1025 (9th Cir. 2016) (“When the

court strikes testimony and gives . . . an instruction [to disregard it], there is a

strong presumption that the jury has followed the court’s instruction.” (alterations

in original) (internal quotation marks omitted)).

      Accordingly, the district court did not abuse its discretion in denying

Morton’s motion for a mistrial.

      3.     Finally, Morton challenges several of the jury instructions given by

the district court. However, Morton waived some of these challenges, and she

failed to preserve others.

      Preliminarily, we note that at trial Morton waived two of her challenges to

the jury instructions. On appeal Morton challenges the jury instructions relating to

the charges of presenting a false, fictitious, or fraudulent claim against the United

States in violation of 18 U.S.C. § 287 and conspiring to defraud the United States

in violation of 18 U.S.C. § 371. But Morton and the Government jointly proposed


                                            7
the instructions relating to those two offenses, and Morton’s challenge to these

instructions is based on case law that existed well before she was indicted. We

have previously found waiver in nearly identical circumstances. See United States

v. Cain, 130 F.3d 381, 383–84 (9th Cir. 1997) (concluding that the defendant

waived his right to challenge a jury instruction because defense counsel jointly

proposed the instruction and the case law on which the defendant relied was

published at the time of the trial). In accordance with Cain, we conclude that

Morton waived her challenge to the jury instructions relating to the false claims

and conspiracy charges—18 U.S.C. §§ 287, 371.

      Morton also challenges the district court’s jury instructions on the charges of

passing and causing others to pass false or fictitious financial instruments in

violation of 18 U.S.C. § 514(a). Because Morton did not object to these

instructions at trial, we review the instructions for plain error. See United States v.

Conti, 804 F.3d 977, 981 (9th Cir. 2015). The Government charged Morton with

passing the instruments herself and causing others to do so, and the jury convicted

her of all charges. The district court provided a general instruction covering all

charges under § 514(a), and also provided specific instructions on the individual

counts of (1) passing false or fictitious financial instruments, and (2) causing others

to pass false or fictitious financial instruments.




                                            8
      First, Morton challenges the instruction relating to the charge of passing a

false or fictitious financial instrument herself. However, that instruction accurately

stated the law. We thus find no error in that instruction.

      Second, Morton alleges that the district court erred in instructing the jury on

the charges of causing others to pass false or fictitious financial instruments. The

district court included the intent element when it instructed the jury on the charge

of Morton passing the false or fictitious financial instrument herself, but it did not

reiterate the intent element when instructing the jury on the charges of causing

others to pass false or fictitious financial instruments. Morton contends that the

district court’s failure to reiterate the intent element when instructing the jury on

the charges of causing others to pass false or fictitious financial instruments could

have allowed the jury to convict her of violating § 514(a) without finding that she

had the requisite intent. We are not persuaded.

      While it was perhaps not best practice, we are not convinced that the district

court’s failure to repeat the intent element allowed the jury to convict Morton

without finding that she had the requisite intent. The district court did not

completely omit the intent element of § 514(a), and it also read the jury the

statutory language of § 514(a), which included the intent element, during its

general instruction on all the § 514(a) charges. Even if the causing-others

instruction was erroneous, any error was harmless and did not affect Morton’s


                                           9
substantial rights, as required to reverse for plain error. See Conti, 804 F.3d at 981

(“[A]n omission of an element from a jury instruction that is harmless, under the

standard set forth in Neder [v. United States, 527 U.S. 1 (1999)], does not affect a

defendant’s substantial rights for purposes of plain error review.”). We thus

conclude that the district court did not plainly err in instructing the jury on the

charges of causing others to pass false or fictious financial instruments.

      AFFIRMED.




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