                                                                          FILED
                              NOT FOR PUBLICATION                           JUL 28 2015

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,              )      No. 14-50141
                                       )
      Plaintiff - Appellee,            )      D.C. No. 3:13-cr-00472-JAH-2
                                       )
      v.                               )      MEMORANDUM*
                                       )
DAVID JOSE RICO,                       )
                                       )
      Defendant - Appellant.           )
                                       )
UNITED STATES OF AMERICA,              )      No. 14-50280
                                       )
      Plaintiff - Appellee,            )      D.C. No. 3:13-cr-00472-JAH-2
                                       )
      v.                               )
                                       )
DAVID JOSE RICO,                       )
                                       )
      Defendant,                       )
                                       )
      and                              )
                                       )
JACK J. BOLTAX,                        )
                                       )
      Appellant.                       )
                                       )

                    Appeal from the United States District Court


      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                         for the Southern District of California
                       John A. Houston, District Judge, Presiding

                           Argued and Submitted July 7, 2015
                                 Pasadena, California

Before: REINHARDT, FERNANDEZ, and CLIFTON, Circuit Judges.

      David Rico appeals his conviction for engaging in sex trafficking of a child

under the age of eighteen years,1 and for conspiracy to so engage.2 Case No. 14-

50141. In addition, Jack Boltax, Rico’s attorney, appeals the district court’s

imposition of monetary sanctions upon him for his conduct in issuing a subpoena.

Case No. 14-50280. We affirm as to Rico and reverse as to Boltax.

      I. Rico’s Appeal

               A. Rico first raises issues regarding the constitutionality and the

proper interpretation of § 1591.

               Rico attacks the statute on the basis that it is void for vagueness. We

disagree. In the first place, he did not raise this argument before the district court




      1
       See 18 U.S.C. § 1591. All references to § 1591 hereafter are to 18 U.S.C.
§ 1591. Moreover, unless otherwise stated, all references to § 1591 are to its
provisions before it was amended on May 29, 2015, by the Justice for Victims of
Trafficking Act of 2015, Pub. L. No. 114-22, § 108, 129 Stat. 227, 238–39.
      2
          See 18 U.S.C. § 1594(c); see also id. § 1591.

                                            2
and we therefore review for plain error,3 but the standard is of little importance

because whether reviewing for plain error or on our usual de novo standard,4 there

was no error in the first place.

      “A conviction fails to comport with due process if the statute under which it

is obtained fails to provide a person of ordinary intelligence fair notice of what is

prohibited . . . .” United States v. Williams, 553 U.S. 285, 304, 128 S. Ct. 1830,

1845, 170 L. Ed. 2d 650 (2008). We must examine the statute “as applied to the

defendant.” United States v. Jae Gab Kim, 449 F.3d 933, 942 (9th Cir. 2006); see

also Williams, 553 U.S. at 304, 128 S. Ct. at 1845; United States v. Purdy, 264

F.3d 809, 811 (9th Cir. 2001). Rico’s conviction is based on the provisions of

§ 1591 which preclude knowingly enticing, harboring, transporting, providing,

obtaining or maintaining a person “knowing, or in reckless disregard of the fact, . .

. that the person has not attained the age of 18 years and will be caused to engage

in a commercial sex act,”5 with the addition that “[i]n a prosecution . . . in which

the defendant had a reasonable opportunity to observe the person . . . the


      3
       See United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776, 123
L. Ed. 2d 508 (1993); United States v. Mitchell, 568 F.3d 1147, 1150 (9th Cir.
2009).
      4
          See United States v. Mincoff, 574 F.3d 1186, 1191–92 (9th Cir. 2009).
      5
          § 1591(a).

                                           3
Government need not prove that the defendant knew that the person had not

attained the age of 18 years.”6

      Rico first argues that the whole of § 1591(a) & (c) is vague because two

other courts of appeals have construed the statute in different ways. Compare

United States v. Robinson, 702 F.3d 22, 31–32 (2d Cir. 2012), with United States

v. Mozie, 752 F.3d 1271, 1281–82 (11th Cir.) cert. denied, __ U.S. __, 135 S. Ct.

422, 190 L. Ed. 2d 305 (2014). We agree that their interpretations differ. However

the mere fact that “‘other courts of appeals differ in their definitions of a term[]

does not mean that the term is void for vagueness.’” United States v. Davis, 36

F.3d 1424, 1434 (9th Cir. 1994). As it is, we do not think the statute is unduly

vague as applied to Rico. While we find the Second Circuit’s explication of the

provisions persuasive, we need not decide the question because on either reading,

the facts of this case would bring Rico well within the statutory terms. We do note,

however, that Congress has now amended the statute to comport with the Second

Circuit’s approach. See Justice for Victims of Trafficking Act of 2015, Pub. L.

No. 114-22, 129 Stat. 227; see also 18 U.S.C. § 1591(c) (2015) (if a defendant had

the opportunity to observe the victim, “the Government need not prove that the

defendant knew, or recklessly disregarded the fact” of the victim's age). Thus, this

      6
          § 1591(c).

                                            4
issue should not trouble courts in the future.

       Rico also argues that the phrase “a reasonable opportunity to observe” is

itself impermissibly vague and ambiguous. However, the terms used in the phrase

“are not esoteric or complicated terms devoid of common understanding.” United

States v. Osinger, 753 F.3d 939, 945 (9th Cir. 2014). Again, even if there could be

circumstances when the statute would be unduly vague as to a defendant, the facts

and circumstances of this case place it well within the plain prohibitions of the

statute.

       Rico next attacks the district court’s instructions regarding the elements of

the crimes. The district court instructed the jury in accordance with the

construction of the statute approved in Robinson. Rico’s principal argument is, in

effect, that the district court should have used the construction set forth in Mozie.

       Here, again, we see no reason to resolve that particular dispute. Based on

the evidence before the jury, even if the instruction was in error, that error was

harmless because “it is clear beyond a reasonable doubt that a rational jury would

have found the defendant guilty absent the error.” United States v. Anchrum, 590

F.3d 795, 801 (9th Cir. 2009) (internal quotation marks omitted). The evidence

that Rico knew, had a reasonable opportunity to observe, and recklessly

disregarded the victim’s age was powerful. Thus, any error was harmless beyond a

                                           5
reasonable doubt. See United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1197

(9th Cir. 2000) (en banc).

      Rico also argues that the district court erred when it imported its definition

of the substantive crime into the conspiracy count, because in charging conspiracy

the indictment did not specifically mention the § 1591(c) portion of the substantive

crime. That, he asserts, constituted a constructive amendment of the indictment.

See United States v. Hartz, 458 F.3d 1011, 1019–20 (9th Cir. 2006); see also

United States v. Garcia-Paz, 282 F.3d 1212, 1215–16 (9th Cir. 2002). We

disagree. An indictment count that charges conspiracy “need not allege the offense

that is the object of the conspiracy with the same precision as would be necessary

where that offense is itself the crime charged.” United States v. Lo, 231 F.3d 471,

481 (9th Cir. 2000). There can be little doubt that, taken as a whole, reasonable

observation was an evident part of both counts of the indictment in the eyes of the

grand jury. See United States v. Berger, 473 F.3d 1080, 1103 (9th Cir. 2007).

Moreover, Rico could not have been misled or blind-sided. See Hartz, 458 F.3d at

1022–23.

             B. Other Issues

                   (1) Rico argues that the district court erred when it admitted as

a business record a letter sent by Time Warner to a government agent in response

                                          6
to a subpoena, which was seeking an internet protocol address. See Fed. R. Evid.

803(6). We agree. The letter was not prepared in the regular course of business; it

was prepared for use in litigation. See Melendez-Diaz v. Massachusetts, 557 U.S.

305, 321–22, 129 S. Ct. 2527, 2538, 174 L. Ed. 2d 314 (2009); United States v.

Miller, 771 F.2d 1219, 1238 (9th Cir. 1985). Thus, it was improperly admitted.

However, it added very little to the evidentiary mix, and did not substantially affect

the verdict. See United States v. Morales, 720 F.3d 1194, 1199, 1203 (9th Cir.

2013). In short, the error was harmless.

                      (2) Rico also asserts error in the district court’s sustaining of an

objection to a question asked of the victim by Rico’s counsel. We disagree. The

district court did not abuse its discretion7 when it sustained the objection on the

basis that the question sought irrelevant evidence.8 The district court had

previously indicated that it would allow questions about the victim’s mode of dress

if they were limited to the relevant time frame. The question was not so limited.

                      (3) Rico finally claims that we should reverse because the

district court erred when it quashed a subpoena directed by his counsel to the

counsel for a co-defendant. The subpoena sought materials and testimony with


      7
          See United States v. Alvarez, 358 F.3d 1194, 1216 (9th Cir. 2004).
      8
          See United States v. Shabani, 48 F.3d 401, 403 (9th Cir. 1995).

                                             7
which to impeach the testimony of the co-defendant. While, as we will explain

hereafter, we do not find an abuse of discretion,9 even if we did, the error would be

harmless.10 The subpoena was issued in order to obtain information with which to

impeach the witness if she appeared to testify untruthfully, which she did not.

Thus, Rico neither suffered nor points to any prejudice.

      Therefore, we affirm Rico’s conviction.

      II. Boltax’s Appeal

      When the district court quashed the subpoena that Boltax directed at Rico’s

co-defendant’s attorney, it considered the issuance unreasonable and, therefore,

ordered him to show cause why he should not be sanctioned. Ultimately, it did

impose sanctions. Boltax appealed, and we reverse.

      The district court imposed sanctions pursuant to its inherent power and the

provisions of 28 U.S.C. § 1927. We review its imposition of sanctions for abuse of

discretion. See Lahiri v. Universal Music & Video Distrib. Corp., 606 F.3d 1216,

1218 (9th Cir. 2010); see also United States v. Hinkson, 585 F.3d 1247, 1262 (9th

Cir. 2009) (en banc).



      9
          See United States v. Bergeson, 425 F.3d 1221, 1224 (9th Cir. 2005).
      10
       See United States v. Edwards, 235 F.3d 1173, 1178–79 (9th Cir. 2000) (per
curiam).

                                           8
      At the threshold it is important to consider whether the district court abused

its discretion when it quashed the subpoena. See Bergeson, 425 F.3d at 1224. If it

did err, an award of sanctions could not be upheld. The court did not err. Despite

what Boltax argues, the subpoena was quite broad. Besides commanding Mr.

Garrison, the co-defendant’s attorney, to appear to testify, the subpoena ordered

him to bring: “All notes and/or summaries of any interview or debrief between

Assistant U.S. Attorney A. Serano [AUSA] and/or law enforcement including but

not limited to interview and/or debrief held on or about August 2, 2013 with co-

defendant . . . .” (emphasis added). Notably, the subpoena was not limited to any

particular interview with any particular person, nor was it limited to any particular

type of note or summary. And lest there be any doubt about what was intended,

Boltax sent the AUSA a missive indicating that it was Boltax’s intention to

question Garrison about the “exposure of his client under the plea agreement if she

doesn’t cooperate and that cooperation will get her a recommendation from the

government for less time.” He also indicated that he might question Garrison

about “what his client said during the debrief session.”

      The district court had discretion to quash the subpoena if it was




                                          9
“unreasonable or oppressive”;11 the court expressly determined that it was both.

The demands of the subpoena implicated the attorney-client privilege,12 attorney

work product concerns,13 and the attorney-client relationship.14

      The courts take all of those attorney-client protections, which were erected

for good and sufficient public policy purposes, very seriously. It is true that the

attorney-client privilege would not offer protection to disclosures made by

Garrison’s client to the AUSA. But, the district court did not put weight upon the

attorney-client privilege. It did put weight on the work product privilege, and

rightly so. Similarly, it put weight on the overall need to protect the attorney-client

relationship. Boltax’s general concerns that the witness might lie did not outweigh

the dangers posed by his course of action. The district court did not abuse its

discretion when it quashed the subpoena based on its scope and timing.

      The court then sanctioned Boltax by relying on its inherent power15 and on

      11
           Fed. R. Crim. P. 17(c)(2).
      12
        See United States v. Ruehle, 583 F.3d 600, 612 (9th Cir. 2009); United
States v. Bauer, 132 F.3d 504, 510 (9th Cir. 1997).
      13
        See Hickman v. Taylor, 329 U.S. 495, 510–11, 67 S. Ct. 385, 393–94, 91
L. Ed. 451 (1947)
      14
           See Bergeson, 425 F.3d at 1224–27.
      15
           See, e.g., Roadway Express, Inc. v. Piper, 447 U.S. 752, 764–65, 100 S. Ct.
                                                                         (continued...)

                                           10
the statute that authorizes sanctions against an attorney who unnecessarily and

vexatiously litigates.16 However, a court’s inherent power must be utilized with

caution and restraint,17 although it can be used when counsel’s actions are in “bad

faith” or are “tantamount to bad faith.”18 Imposition of sanctions under § 1927

requires similar, if slightly different, determinations. The statute indicates that

actions that multiply the proceedings must be both unreasonable and vexatious,

and we have also stated that recklessness alone will not suffice. What is required is

recklessness plus something more — for example knowledge, intent to harass, or

frivolousness. See B.K.B., 276 F.3d at 1107; see also In re Girardi, 611 F.3d 1027,

1061 (9th Cir. 2010);19 Fink, 239 F.3d at 993–94. The district court recognized

those standards.

      That leaves the question of whether the district court applied those correct



      15
       (...continued)
2455, 2463, 65 L. Ed. 2d 488 (1980).
      16
           28 U.S.C. § 1927.
      17
           Roadway Express, 447 U.S. at 764, 100 S. Ct. at 2463.
      18
        Fink v. Gomez, 239 F.3d 989, 994 (9th Cir. 2001); see also B.K.B. v. Maui
Police Dep’t, 276 F.3d 1091, 1108 (9th Cir. 2002).
      19
        The standard appears explicitly in the appendix, which is a report by Judge
Tashima to the panel that is adopted in full by the panel. See In re Girardi, 611
F.3d at 1034–35.

                                           11
legal standards correctly. Hinkson, 585 F.3d at 1262. Our careful review of the

record convinces us that it did not. Not every overbroad subpoena is an occasion

for sanctions;20 we have said that in general, “sanctions should be reserved for the

‘rare and exceptional case.’”21 This record does not present a rare or exceptional

situation. True it is that Boltax issued an inappropriately broad subpoena without

sufficiently considering the importance of the protections that must surround an

attorney’s relationship and duties toward his client. Despite that insensitivity, we

are unable to see how it meets the level of egregiousness we have seen in other

cases where sanctions have been imposed and upheld.22 Moreover, the mere

issuance of the overbroad subpoena would not suffice to sustain sanctions. See

Mount Hope, 705 F.3d at 429–30. Here, at least, Boltax submitted evidence that


      20
           See Mount Hope Church v. Bash Back!, 705 F.3d 418, 423, 429 (9th Cir.
2012).
      21
           Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 649 (9th Cir.
1997).
      22
        See, e.g., In re Girardi, 611 F.3d at 1062–63 (respondents intentionally and
recklessly misled the court with false statements); Lahiri, 606 F.3d at 1221–23
(cumulative acts over five years evidenced a pattern of bad faith warranting
sanctions); B.K.B., 276 F.3d at 1107–08 (attorney’s knowing and reckless
introduction of inadmissible evidence); Pac. Harbor Capital, Inc. v. Carnival Air
Lines, Inc., 210 F.3d 1112, 1118–19 (9th Cir. 2000) (lawyer insufficiently
informed client regarding a temporary restraining order); Salstrom v. Citicorp
Credit Servs., Inc., 74 F.3d 183, 185 (9th Cir. 1996) (lawyer made too much out of
a simple debt collection matter).

                                            12
other attorneys deeply involved in representing defendants in criminal cases had

used subpoenas directed to counsel where the need for the requested information

seemed important under the circumstances, or had discussed their use at criminal-

law-practitioner conferences. We doubt that the practice is widespread; nor should

it be. Important concerns weigh on both sides of the balance: on one side, the need

to protect the sanctity of the attorney-client relationship for everyone, and on the

other, the need to protect everyone’s right to vigorous, effective advocacy by

counsel. Both of those are essential to the proper functioning of our system of

justice. Both can be threatened when a subpoena directed to another party’s

attorney is issued. Proper praxis requires that counsel show a great deal of care

when considering, drafting and issuing subpoenas of that kind. Boltax was not

careful enough, but that lapse under the circumstances was not sufficient to support

a discretionary determination that his actions were so inappropriate that they

demonstrated bad faith, or were tantamount to bad faith, or were reckless, or

vexatious. Therefore, the district court abused its discretion when it imposed

sanctions upon him, and the award must be reversed.

      AFFIRMED as to Rico (No. 14-50141). REVERSED as to Boltax (No. 14-

50280).




                                          13
                                                                             FILED
United States of America v. Boltax, 14-50280                                    JUL 28 2015
Reinhardt, Circuit Judge, concurring:                                     MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS

      I concur in the memorandum disposition. I would add that I do not construe

our disposition as a flat ruling that defense counsel may never issue a narrow

subpoena to an attorney regarding what occurred at a conference between the

attorney’s client and the prosecuting authority, as it may well be critical to whether

there has been a violation of Brady or Napue. Whether defense counsel is always

required to rely only on the notes taken by persons on the prosecution’s side is a

question that should be decided, if at all, in a case with a fuller record. There are of

course some exceptions to the work product rule. See Hickman v. Taylor, 329 U.S.

495, 511 (1947). These exceptions have not yet been fully explored by the courts.

Whether a case like this, with different facts, could constitute one of those

exceptions is a question we need not answer here. See also In re Sealed Case, 124

F.3d 230, 236 (D.C. Cir. 1997) (rev'd on other grounds sub nom. Swidler & Berlin

v. United States, 524 U.S. 399 (1998)) (finding that an attorney’s contemporaneous

notes of an interview in which he did not (primarily) direct the conversation are not

given iron-clad protection by the work product rule).
