FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
UTAH (D.C. NO. 2:12-CR-00645-TC-DBP-1)
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.
TYMKOVICH, Chief Judge, BRISCOE, and MATHESON, Circuit
TYMKOVICH, Chief Judge.
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.
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.
remand for the limited purpose of clarifying the general
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.
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
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.
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.
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.
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.
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.
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 ...