                                                                              FILED
                            NOT FOR PUBLICATION
                                                                              AUG 29 2017
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 13-30000

              Plaintiff-Appellee,                D.C. No.
                                                 3:11-cr-00022-RJB-1
 v.

FRANCIS SCHAEFFER COX,                           MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Alaska
                     Robert J. Bryan, District Judge, Presiding

                      Argued and Submitted August 16, 2017
                               Anchorage, Alaska

Before: GRABER, CLIFTON, and M. SMITH, Circuit Judges.

      Defendant Francis Schaeffer Cox appeals his convictions for conspiracy to

murder a federal officer in violation of 18 U.S.C. §§ 1117 and 1114 and for

solicitation to murder a federal officer in violation of 18 U.S.C. §§ 373 and 1114.

We affirm Defendant’s conspiracy conviction, vacate his solicitation conviction,

vacate his sentences, and remand to the district court for resentencing.


      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      1. Defendant challenges several aspects of the jury instructions. First, he

argues that the instructions failed to inform the jury that it had to find that he

conspired with the mental state required for first-degree murder in order to convict

him of conspiracy to commit first-degree murder. Reviewing for plain error, we

conclude that any error in that instruction did not affect Defendant’s substantial

rights. United States v. Olano, 507 U.S. 725, 734–35 (1993). Second, Defendant

argues that the instructions were deficient because they did not inform the jury that

it had to find that the conspiracy was not one for self-defense. We conclude that,

even assuming that Defendant has preserved the argument, the instructions

adequately covered his theory of self-defense, United States v. Gomez-Osorio, 957

F.2d 636, 642–43 (9th Cir. 1992), they were not misleading, Stoker v. United

States, 587 F.2d 438, 440 (9th Cir. 1978) (per curiam), and the district court did

not abuse its discretion in formulating the instructions as it did, United States v.

Knapp, 120 F.3d 928, 930 (9th Cir. 1997). Finally, Defendant argues that the lack

of an instruction to the effect that the jury had to agree unanimously as to the

target(s) of the conspiracy confused the jury. Reviewing for plain error, we

conclude that it is not "obvious" or "clear" that the district court erred by not giving

a specific unanimity instruction as to the intended target(s) of the conspiracy. See




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Puckett v. United States, 556 U.S. 129, 135 (2009) (noting that, for an error to be

"plain," it "must be clear or obvious, rather than subject to reasonable dispute").

      2. Defendant next challenges the sufficiency of the evidence on the

conspiracy charge. We assume, without deciding, that Defendant has properly

preserved this challenge, so that our review is de novo. See United States v.

Phillips, 704 F.3d 754, 762 (9th Cir. 2012). We conclude that, "consider[ing] the

evidence presented at trial in the light most favorable to the prosecution[,] . . .

[that] evidence, so viewed, is adequate to allow any rational trier of fact to find the

essential elements of the crime beyond a reasonable doubt." United States v.

Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc) (internal quotation marks

and alteration omitted). Defendant and his co-conspirators agreed to attack

government officials—including federal officers—in the event of certain

conditions that they subjectively thought were likely to occur. A rational trier of

fact could find beyond a reasonable doubt that the agreement was not merely one

for self-defense. A rational trier of fact could also conclude that "the agreement,

standing alone, constituted a sufficient threat to the safety of a federal officer so as

to give rise to federal jurisdiction." United States v. Feola, 420 U.S. 671, 695–96

(1975).




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      3. Defendant also challenges the sufficiency of the evidence on the

solicitation charge. We review for plain error, but "plain-error review of a

sufficiency-of-the-evidence claim is only theoretically more stringent than the

standard for a preserved claim." United States v. Flyer, 633 F.3d 911, 917 (9th Cir.

2011) (internal quotation marks omitted). We conclude that it is clear that no

rational trier of fact could find Defendant guilty of solicitation to murder a federal

official, for two independent reasons. First, no rational trier of fact could conclude

that the circumstances surrounding the formation of the security team for the

television station event "strongly confirm[ed] that [D]efendant actually intended"

for anyone to commit first-degree murder. United States v. Stewart, 420 F.3d

1007, 1020–21 (9th Cir. 2005). Second, because the federal "hit team" that the

security team was supposed to guard against did not exist, the solicitation to

murder a member of that hit team did not "constitute[] a sufficient threat to the

safety of a federal officer so as to give rise to federal jurisdiction." Feola, 420 U.S.

at 695–96.1 The error affected Defendant’s substantial rights and seriously

affected the fairness, integrity, or public reputation of a judicial proceeding, and we


      1
        The Government’s theory at trial was that Defendant’s actions in
connection with the formation of the security team for the television station event
constituted solicitation to murder a federal official. No rational trier of fact could
conclude that Defendant’s other actions—those not related to the creation of the
security team—amounted to solicitation within the meaning of 18 U.S.C. § 373.
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will correct it. See Flyer, 633 F.3d at 917 ("When a conviction is predicated on

insufficient evidence, the last two prongs of the plain-error test will necessarily be

satisfied." (brackets omitted) (quoting United States v. Cruz, 554 F.3d 840, 845

(9th Cir. 2009)); Cruz, 554 F.3d at 845 (holding that the last two prongs of the

plain-error test are necessarily met "when [a] court, as a matter of law, ha[d] no

jurisdiction to try [a defendent] for the alleged offense").

      4. Defendant next argues that several of the district court’s evidentiary

rulings were erroneous. Reviewing for plain error, we conclude that the court’s

decision to admit evidence about Defendant’s political speech and activities was

not plainly erroneous. And assuming, without deciding, that Defendant has

properly preserved his challenge to the district court’s rulings on his requested

limiting instruction, we conclude that neither the court’s particular formulation of

the limiting instruction nor the court’s refusal to give an instruction at the time the

evidence of political activity was presented to the jury constituted an abuse of its

discretion. See United States v. Campanale, 518 F.2d 352, 362 (9th Cir. 1975) (per

curiam) ("Appellants place special emphasis on the refusal of the judge to give

cautionary instructions on the statements of co-conspirators at the time evidence

was admitted. This subject was covered at the conclusion of the trial. There was




                                            5
no prejudicial error in the judge’s failure to give such an instruction also on other

occasions during the trial." (citation omitted)).

      5. We decline to reach Defendant’s ineffective-assistance-of-counsel claim.

See United States v. Jeronimo, 398 F.3d 1149, 1155 (9th Cir. 2005) ("[A]s a

general rule, we do not review challenges to the effectiveness of defense counsel

on direct appeal."), overruled on other grounds by United States v. Jacobo Castillo,

496 F.3d 947 (9th Cir. 2007) (en banc).

      6. We vacate Defendant’s sentences on all counts of conviction and remand

with instructions to resentence Defendant in light of our reversal of his solicitation

conviction. See United States v. Evans-Martinez, 611 F.3d 635, 645 (9th Cir.

2010) (holding that an appellate court has "the power to vacate all of the sentences

imposed by a district court when the district court erred with respect to one of the

sentences," and "remand of all sentences is often warranted").

      AFFIRMED in part, REVERSED in part, VACATED in part, and

REMANDED.




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