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United States v. Phillips

United States Court of Appeals, Ninth Circuit

July 11, 2019

United States of America, Plaintiff-Appellee,
v.
David Phillips, AKA David John Phillips, Defendant-Appellant.

          Argued and Submitted June 10, 2019 Pasadena, California

          Appeal from the United States District Court for the Central District of California Fernando M. Olguin, District Judge, Presiding No. 2:17-cr-00498-FMO-1.

          Glen T. Jonas (argued), Jonas & Driscoll LLP, Torrance, California, for Defendant-Appellant.

          Kevin G. Boitmann (argued), Chief of Appeals; Peter G. Strasser, United States Attorney; United States Attorney's Office, New Orleans, Louisiana; for Plaintiff-Appellee.

          Before: Kim McLane Wardlaw, Jay S. Bybee, and John B. Owens, Circuit Judges.

         SUMMARY[*]

         Criminal Law

         In a case in which the defendant was convicted of conspiracy to use interstate telephone calls in the commission of a murder-for-hire in violation of 18 U.S.C. § 1958, the panel affirmed the district court's conclusion that the defendant's promise to forgive an uncollectible and legally unenforceable debt satisfies the pecuniary value requirement of § 1958.

         The panel explained that the pecuniary value requirement does not require the murder-for-hire agreement to comport with contract rules; the defendant's promise to relieve the hit man of a debt for an illegal marijuana venture gave the hit man an economic benefit, satisfying the pecuniary value requirement for murder-for-hire.

         In a concurrently filed memorandum, the panel concluded that the district court erred in excluding all evidence relating to the defendant's kidney disease, but that the error was harmless.

          OPINION

          Owens, Circuit Judge.

         David Phillips appeals from his jury conviction for conspiracy to use interstate telephone calls in the commission of a murder-for-hire in violation of 18 U.S.C. § 1958. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court's conclusion that Phillips' promise to forgive an uncollectable debt satisfies the pecuniary value requirement of § 1958.[1]

         I. BACKGROUND

         Phillips owned NKP Medical, a digital marketing agency focused on promoting plastic surgeons, cosmetic dentists, and similar "aesthetic" medical procedures. He hired Steven Fruchter as a contractor to serve, in effect, as NKP's Chief Technology Officer. Phillips and Fruchter initially ...


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