United States v. David Rico

concurring:

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 , 67 S.Ct. 385 , 91 L.Ed. 451 (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 , 118 S.Ct. 2081 , 141 L.Ed.2d 379 (1998)) (finding that an attorney’s contemporaneous notes of an interview in which he did not (primarily) direct the…

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NOT FOR PUBLICATION JUL 28 2015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…

MEMORANDUM *

David Rico appeals his conviction for engaging in sex trafficking of a child under *598 the age of eighteen years, 1 and for conspiracy to'so engage. 2 Case No. 1450141. 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 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…