United States v. Mikhel

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 07-99008 Plaintiff-Appellee, D.C. No. v. CR-02-00220-DT-1 IOURI MIKHEL, Defendant-Appellant. UNITED STATES OF AMERICA, No. 07-99009 Plaintiff-Appellee, D.C. No. v. CR-02-00220-DT-2 JURIJUS KADAMOVAS, Defendant-Appellant. OPINION Appeal from the United States District Court for the Central District of California Dickran M. Tevrizian, District Judge, Presiding Argued and Submitted January 10, 2018 Pasadena, California Filed May 9, 2018 2 UNITED STATES V. MIKHEL Before: Jay S. Bybee, Milan D. Smith, Jr., and Michelle T. Friedland, Circuit Judges. Opinion by Judge Bybee SUMMARY* Criminal Law / Federal Death Penalty The panel affirmed Iouri Mikhel’s and Jurijus Kadamovas’s convictions and death sentences for several federal crimes, including multiple counts of hostage taking resulting in death under the Hostage Taking Act. Guilt Phase The panel reaffirmed that the Hostage Taking Act does not require proof of a nexus to international terrorism. The panel held that the Act was a valid exercise of Congress’s power under the Necessary and Proper Clause together with the Treaty Power, and rejected as unavailing the defendants’ independent Tenth Amendment challenge. The panel rejected as meritless the defendants’ argument that even if the Act does not itself exceed Congress’s power, the subsequent amendment authorizing the death penalty exceeded Congress’s power. The panel held that the defendants’ motion for recusal of the district judge was untimely and fails on its merits. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. MIKHEL 3 Affirming the district court’s rejection of the defendants’ Batson challenge to the government’s peremptory strike of a juror, the panel held that the defendants did not meet their burden of demonstrating race was a substantial motivating factor. The panel held that the district court committed no error in empaneling an anonymous jury. The panel held that the district court did not violate the defendants’ Sixth Amendment right to a public trial by excluding from the courtroom a person who was observed behaving in an intimidating manner. The panel held that the district court did not err in using this circuit’s model reasonable-doubt jury instruction in the guilt phase. The panel explained that the purpose of 18 U.S.C. § 3005, under which a capital defendant has the right to two counsel, is not undermined by one attorney’s de minimis absence from trial, and that any error stemming from the three-day absence from trial of one of Mikhel’s attorneys was harmless. The panel held that the district court’s denial of Kadamovas’s motions for a continuance to allow one of his attorneys more time to prepare did not violate § 3005, and that any technical error would be harmless. The panel held that the district court did not abuse its discretion in excluding as irrelevant testimony of a person who, without repercussion, committed perjury as a cooperating witness in a different case. 4 UNITED STATES V. MIKHEL The panel ...

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