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United States v. Lustyik

United States Court of Appeals, Tenth Circuit

August 15, 2016

ROBERT G. LUSTYIK, JR., Defendant-Appellant.


          Michael J. Langford, Law Office of Michael J. Langford, Salt Lake City, Utah, for Appellant.

          William A. Glaser, Appellate Section, Criminal Division (Leslie R. Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy Assistant Attorney General, Peter M. Koski, Deputy Chief, Public Integrity Section, Maria N. Lerner, Public Integrity Section, Anne Marie Blaylock Bacon, Asset Forfeiture & Money Laundering Section, United States Department of Justice, Washington, DC, and John W. Huber, United States Attorney for the District of Utah, Salt Lake City, Utah, with him on the brief), United States Department of Justice, Washington, DC, for Appellee.

          Before TYMKOVICH, Chief Judge, BRISCOE, and MATHESON, Circuit Judges.

          TYMKOVICH, Chief Judge.

         Robert G. Lustyik served as a special agent with the Federal Bureau of Investigation for twenty-four years before he was indicted on charges related to the obstruction of justice. Prior to trial, Lustyik pleaded guilty to all charges in the indictment without a plea agreement. After his plea, his lead counsel withdrew and Lustyik obtained new counsel. On the eve of sentencing, counsel sought an order allowing him to obtain security clearance to review classified material he believed might be relevant for sentencing. The district court, having previously reviewed the documents, deemed them irrelevant to the sentencing issues, denied the motion, and subsequently sentenced Lustyik to 120 months' imprisonment.

         Lustyik argues that the district court's order denying his counsel access to the classified materials violated his Sixth Amendment rights at sentencing. We affirm the district court's denial of Lustyik's motion and its judgment below. The court's decision was not presumptively prejudicial to Lustyik's advocacy at sentencing, nor did the district court abuse its discretion in concluding the documents were not relevant for sentencing.

         We remand for the limited purpose of clarifying the general sentence.

         I. Background

         Former FBI agent Robert G. Lustyik wanted to help his friend and business partner, Michael L. Taylor, in return for payment. Taylor owned American International Security Corporation (AISC), a company that offered security and defense contracting services. The Department of Defense awarded AISC a contract in 2007 to provide training and related services to Afghan Special Forces. In mid-2010, the United States began investigating AISC regarding fraud and money laundering in connection with the 2007 contract.

         In September 2011, the United States filed a civil forfeiture action against assets owned by Taylor and AISC, which resulted in the seizure of more than $5 million dollars from AISC's bank account. Lustyik used his status as an FBI agent to impair the government's investigation of Taylor, including attempting to establish Taylor as a confidential source. From February through August 2012, Lustyik contacted multiple individuals connected with the AISC investigation to dissuade them from indicting Taylor and promoted him as a confidential source.

         In return for Lustyik's efforts, Taylor promised Lustyik cash payments and shared profits from their joint business venture. Lustyik repeatedly reminded Taylor of his need for money, and Taylor promised, "You will have more coin than you know what to do with." R., Vol. I at 141.

         In 2012, a grand jury indicted Lustyik, Taylor, and their middle-man Johannes Thaler, for conspiracy, honest services wire fraud, obstruction of justice, and obstruction of agency proceedings. The United States proceeded to disclose more than one million pages of unclassified discovery, and more than 10, 000 pages of partially-redacted classified discovery to all defense counsel with security clearance including Lustyik's lead counsel. Of those 10, 000 classified pages, the government disclosed 6, 961 pages to Lustyik, even though he no longer had a security clearance.

         Pursuant to the Classified Information Procedures Act (CIPA) § 5(a), Lustyik and his co-defendants identified classified information-80 pages of interviews, 400 pages of documents, and 15 topics-they wished to present at trial. After the government objected, the court met ex parte with Defendants' counsel to understand how Defendants wanted to use the evidence. The court held a hearing on the government's motion and subsequently determined the confidential information was inadmissible, concluding most of the information was not relevant under Federal Rule of Evidence 401. To the extent a piece of evidence was relevant, the court found it inadmissible under Rule 403 because Defendants "intend[ed] to offer details of information Mr. Taylor provided to the FBI[, ]" which "would create a sideshow that would waste time and substantially risk confusing the jury." R., Vol. I at 180. Further, the question for the jury was not the actual value of Taylor as a source, but rather Lustyik's good faith belief that what he was doing was legitimate. The court also described equally probative evidentiary alternatives.

         A few days later, during Lustyik's first day of trial, he pleaded guilty to each of the eleven counts in the indictment without a plea agreement. In November 2014, the court granted Lustyik's lead counsel's motion to withdraw and appointed Lustyik's local counsel as substitute counsel. The court rescheduled sentencing to March 30, 2015, allowing more than four months to prepare. On February 12, defense counsel received the pre-sentence investigation report (PSR), prepared by a probation officer who was not provided with classified information. On March 2, Lustyik filed a motion for an order allowing his attorney to seek security clearance in preparation for sentencing.

         A magistrate judge denied the motion. The district court affirmed and denied Lustyik's corresponding motion to continue. At the March 30 sentencing hearing, Lustyik's attorney indicated he only knew the case, "to the extent [he could]." R., Vol. III at 85. The court responded that the classified information "would not add to your ability to make a good argument and to argue for your client." Id. The court added, "To the extent that it would be relevant, I am well aware, mainly from the materials that Mr. Taylor has sent, that Mr. Taylor may have had some value as an operative or as a contact, which is what I think you were needing it for." Id. Counsel responded, "Yes, Judge." Id. at 86.

         Lustyik's counsel went on to present sentencing considerations under 18 U.S.C. § 3553(a) (nature of the offense, just punishment, deterrence, public protection, and rehabilitation). Counsel described that Lustyik's crime did not involve violence, did not implicate national security, and was not successful. He detailed the legal and extra-legal punishment Lustyik had ...

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