United States v. Conti

Omission of an element from jury instructions is not plain error where the facts supporting the element are proven by strong and convincing evidence.

Gary Conti was convicted of twenty-seven charges relating to his involvement in a conspiracy to steal millions of dollars of federal grant funding. One conviction in particular was for conspiracy to defraud the United States. Under 18 U.S.C. § 371, conspiracy “to commit any offense against the United States, or to defraud the United States” is criminalized. However, the jury in Conti’s trial was given only instructions on the offense element and not on the defraud element. Conti appealed his conviction. On appeal, the Ninth Circuit decided whether a court’s failure to provide jury instructions on both the defraud and offense clauses of 18 U.S. C. § 371 amounted to plain error. The panel held that omission of an element from jury instructions is not plain error where the facts supporting the element are proven by strong and convincing evidence. Here, the panel found no plain error because there was overwhelming evidence to support that Conti had defrauded the United States. AFFIRMED.