Greer

Peter S. Levitt, Assistant United States Attorney, Las Vegas, NV, for the plaintiff-appellee.

Jason F. Carr, Assistant Federal Public Defender, Las Vegas, NV, for the defendant-appellant.

Before: MARY M. SCHROEDER and JAY S. BYBEE, Circuit Judges, and OWEN M. PANNER, District Judge. [*]

Opinion by Judge BYBEE; Dissent by Judge PANNER.

BYBEE, Circuit Judge:

Jeffrey Greer was convicted by a jury of two counts of extortion under the Hobbs Act, 18 U.S.C. § 1951 , and two counts of racketeering under 18 U.S.C. § 1952 . On appeal, he argues first, that the district court failed to give a specific intent instruction and then proffered conflicting jury instructions that negated a mens rea element of extortion, and second, that the government improperly asked Greer to comment on the veracity of other witnesses during cross-examination. We review for plain error and we affirm.

In March 2007, while employed as a truck driver for French Trucking, Greer picked up bales of paper from Secured Fibers, a North Las Vegas recycling company, and delivered the bales to a plant in Alabama. After plant workers unloaded the paper, several hundred documents— about fifty pounds of paper that had come…

Opinion by Judge BYBEE; Dissent by Judge PANNER.

*1013 OPINION

Jeffrey Greer was convicted by a jury of two counts of extortion under the Hobbs Act, 18 U.S.C. § 1951 , and two counts of racketeering under 18 U.S.C. § 1952 . On appeal, he argues first, that the district court failed to give a specific intent instruction and then proffered conflicting jury instructions that negated a mens rea element of extortion, and second, that the government improperly asked Greer to comment on the veracity of other witnesses during cross-examination. We review for plain error and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Greer Discovers Confidential Documents

In March 2007, while employed as a truck driver for French Trucking, Greer picked up bales of paper from Secured Fibers, a North Las Vegas recycling company, and delivered the bales to a plant in Alabama. After plant workers unloaded the paper, several hundred documents— about fifty pounds of paper that had come loose from the wired bales — still remained on the floor of the trailer. These documents contained sensitive information about the clients of several Las Vegas casinos — primarily Harrah’s Entertainment and MGM/Mirage —…

dissenting:

I respectfully dissent. The trial court instructed the jury that for Greer to be guilty of extortion it must find he “acted with the intent to obtain money from [the casinos] that [he] knew he was not entitled to receive.” The court also instructed the jury that “[t]he government is not required to prove that the defendant knew that his actions were unlawful.” In my opinion, these conflicting instructions amount to plain error. See United States v. Olano, 507 U.S. 725, 732 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993) (defining plain error).

The error is plain because this court has long “settled the law” that a specific instruction on subjective knowledge of unlawfulness erroneously conflicts with a subsequent general “knowingly” instruction. United States v. Turman, 122 F.3d 1167, 1170 (9th Cir.1997); United States v. Stein, 37 F.3d 1407, 1410 (9th Cir.1994). Furthermore, the general instruction here did not make “sufficiently clear” which charges it applied to. See United States v. Knapp, 120 F.3d 928, 931-32 (9th Cir. 1997).

The majority apparently limits application of Stein and Turman to convictions under 18 U.S.C. § 1957 or convictions under statutes that…