United States v. Randall Fox

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES,
Plaintiff-Appellee,
v.
RANDALL FOX,
Defendant-Appellant.
No. 18-30119
D.C. No. 2:16-cr-00100-JCC-2
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted October 24, 2019**
Seattle, Washington
Before: CLIFTON and IKUTA, Circuit Judges, and RAKOFF,*** District Judge.
Randall Fox appeals his one-count conviction for violation of the Act to
Prevent Pollution from Ships (APPS), 33 U.S.C. § 1901 et seq., and associated
FILED
NOV 12 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Jed S. Rakoff, District Judge for the Southern District
of New York, sitting by designation.

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regulations. He argues on appeal that the trial court incorrectly instructed the jury
on the elements of the offense and that the trial court violated the Confrontation
Clause by introducing certain documents produced by the defendant’s father in
response to a grand jury subpoena. We have jurisdiction under 28 U.S.C. § 1291.
We reject both of Fox’s arguments, and we accordingly affirm his conviction.
First, we hold that any error in the district court’s instructions to the jury was
harmless. The trial court instructed the jury that an APPS violation involves four
elements, essentially including an extra element beyond the three requested by the
defense. The district court’s decision to include this element could only have made
it harder for the jury to convict Fox, because the prosecution must prove every
element of a crime beyond a reasonable doubt. Sullivan v. Louisiana, 508 U.S. 275,
277 (1993). Likewise, because Fox’s theory of the case at trial was that he did not
knowingly discharge oil or an oily mixture into the sea, any confusion caused by
the jury instruction referring to pollution prevention equipment was harmless.
We also hold that the law of the case doctrine did not bar this instruction,
even though it differed from the corresponding instruction given at co-defendant
Bingham Fox’s trial. The law of the case doctrine “applies most clearly where an
issue has been decided by a higher court,” and otherwise “does not preclude a court
from reassessing its own legal rulings in the same case.” Askins v. U.S. Dep’t of
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Homeland Sec., 899 F.3d 1035, 1042 (9th Cir. 2018). And although this Court has
previously applied the doctrine where co-defendants were tried together, see
United States v. Schaff, 948 F.2d 501 (9th Cir. 1991), Randall and Bingham Fox
were tried separately and faced different substantive counts.
Finally, the trial court did not violate the appellant’s Confrontation Clause
rights by admitting some of the documents that Bingham Fox produced in response
to the grand jury subpoena. These documents were not “testimonial,” because they
did not provide evidence of the non-existence of other documents. See United
States v. Bustamante, 687 F.3d 1190, 1193-95 (9th Cir. 2012); see also Melendez-
Dias v. Massachusetts, 557 U.S. 305, 309-10 (2009). Although Bingham Fox’s
cover letter contained a list of all the documents he produced in response to the
grand jury subpoena, the letter did not state that it contained a list of all of Native
Sun’s receipts for oily waste disposal from the relevant time period. Therefore, the
jury could not reasonably have read the receipts introduced at trial, even in
conjunction with the cover letter, as evidence of the lack of other receipts.
Furthermore, any Confrontation Clause error was harmless, because the
purportedly testimonial portion of the cover letter was not used for any purpose at
trial.
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We have considered the appellant’s other arguments and find them
unpersuasive.
AFFIRMED.
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