Page 1
Ninth Circuit Affirms Conviction in Plot to Kill Judge, Others
Opinion Says Fact That Defendant Was Speaking to Federal Agent, Not Hitman, Is Immaterial as Solicitation Law Only Requires Strong Corroboration of Intent
By Kimber Cooley, associate editor
|
|
|
|
ANDREW J. GUILFORD mediator/arbitrator
|
JOHN WALTHALL prison inmate
|
The Ninth U.S. Circuit Court of Appeals yesterday upheld the conviction and 20-year prison sentence of a man who plotted with fellow inmates—who turned out to be FBI informants—to hire a hitman to kill and torture a federal judge, two prosecutors, and two special agents who were involved in the handling of the case that landed him in prison.
Appealing his conviction was John Walthall, who sought the assassination of then-U.S. District Court Judge Andrew J. Guilford of the Central District of California (now retired), Assistant U.S. Attorney Mark Takla and his former colleague Ivy Wang (now in private practice), and FBI Special Agents Brad Howard and Frank Bernal.
In 2016, Walthall was convicted of solicitation to commit a crime of violence, in violation of 18 U.S.C. §373(a), which provides:
“Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against…the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct,…shall be imprisoned for not more than twenty years….”
Walthall argues that his conviction should be overturned because he never directly communicated with any real would-be assassin.
In an opinion, authored by Circuit Judge Eric D. Miller and joined in by Circuit Judges Ryan D. Nelson and Roopali H. Desai, the court rejected the defendant’s arguments, saying:
“[T]he statute does not require that solicitation be carried out by a direct communication, rather than through an intermediary, nor does it require that the person solicited actually exist. Although it does require circumstances strongly corroborative of the defendant’s intent for someone to commit violence, the evidence here was sufficient to allow the jury to find such corroboration.”
The defendant made the solicitation to kill while he was in custody in 2012 on fraud charges for representing himself to be a financial advisor to an elderly couple, who invested millions into a partnership that Walthall claimed was dedicated to extracting gold from old mines. Ivy and Takla were the prosecutors on the case, and Howard and Bernal were the investigating officers.
In May of that year, Guilford sentenced him to 14 years in prison for the scheme and ordered the defendant to pay $2.5 million in restitution to the victims, Mary and Tony Ganje (now deceased).
While awaiting that sentencing hearing, Walthall told another inmate that he wanted to “get rid of” the judge, the prosecutors, and the special agents involved in his prosecution. The inmate reported the conversation to prison authorities, who alerted the bureau.
An inmate, who operated as an informant for the FBI, met with Walthall while wearing a recording device. During that meeting, the informant offered that his brother-in-law “John” could act as a messenger to pass along Walthall’s wishes to a hitman-for-hire on the outside; there was, in reality, no such relative.
Walthall said he wanted “John” to “hire someone that can be at a distance…so it’s deniable,” advised the informant of the “easiest way” to find the judge, said he wanted the murder to be “nice and painful,” involving shoving the jurist’s body into a “wood chipper.”
He eventually provided the full names of his targets to another informant, acting as “John,” and said he wanted the family of one of the special agents to also be killed, directing that the assassin “make their bodies disappear.” He offered to pay “something like a million bucks a year of income” for the killings.
Plain Text
Considering the plain text of §373(a), Miller said:
“The operative verbs—that is, the words that define the prohibited conduct—are ‘solicits, commands, induces, or otherwise endeavors to persuade.’ In ordinary usage, none of those verbs requires direct communication. A CEO can ‘solicit’ applications for employment—or ‘induce’ job seekers to apply—by instructing the human-resources director to advertise a position. A general can ‘command’ an army by directing subordinate officers to relay orders to the troops. And a litigant can ‘endeavor[] to persuade’ a court by hiring a lawyer to file briefs and present oral argument.”
He added:
“Had Congress wished to require that the defendant communicate directly, it could easily have said so…directly. We will not add an adverb that Congress chose not to include in the statute.”
The jurist acknowledged that the Ninth Circuit has never directly confronted the question of whether the solicitation must be made directly to a would-be killer, but said that “[o]ur reading of section 373(a) is consistent with the decisions of other courts of appeals, which have held that the broad language of the statute applies to ‘all sorts of communication strategies.’ ”
Actual Killer
Turning to Walthall’s assertion that the solicitation must involve a person actually capable of carrying out the requested crime, Miller said that the statute, by its language, does not contain such a requirement. He said:
“What matters is the defendant’s ‘intent that another person’ commit an act of violence, not that the other person actually be prepared to do so or even that the other person exist.”
Concluding that the statute only requires that the defendant act “under circumstances strongly corroborative of…intent,” he remarked that “we have little difficulty concluding that the evidence in this case was sufficient for conviction.” He elaborated:
“Walthall engaged in multiple discussions,…and in those discussions he offered payment, described his preferred method of committing the murders, and gave detailed information about the proposed victims, including their full names, the correct spelling of their names, and how to locate them. From those facts, a rational juror could have inferred that Walthall seriously intended to have someone murder the named targets.”
Walthall argues that the strong corroboration of intent is absent because his conversations with the informants included ramblings and nonsensical ideas, including his made-up assertion that he maintained a relationship with a Colombian hit-squad. Addressing this contention, Miller wrote:
“And as a general matter, the more far-fetched a defendant’s scheme, the more likely one might be to conclude that it reflects not a genuine intent for violence but rather, as Walthall put it in his opening statement at trial, the ‘fantastical musings of a lonely man.’ But that is for the jury to decide. Here, the jury listened to recordings of the conversations and had the opportunity to assess Walthall’s intent. It was free to draw reasonable inferences and to resolve the conflicting evidence about the seriousness of Walthall’s intent in favor of the government.”
Third Jury Trial
Walthall’s conviction followed a third jury trial on the solicitation charge. The first jury was unable to reach a unanimous verdict.
He was retried and the second jury found him guilty of the crime. However, the Ninth Circuit in 2019 reversed and remanded for a new trial, saying that then-District Court Judge Cormac J. Carney (now retired) had erred in denying Walthall the right to represent himself “largely based on…antics during court appearances” rather than by making findings on the defendant’s ability to manage the rigor of presenting an effective defense.
On remand, Carney determined that Walthall, though competent to stand trial, had a “severe mental illness” that made him “unable to organize and present an effective defense” and denied his renewed effort to represent himself at trial. Yesterday’s opinion found no fault in these rulings, saying that Carney did “exactly” what he was asked to do on remand and “[t]he court’s ultimate findings were amply supported by the record.”
The case is U.S. v. Walthall, 22-50204.
Copyright 2025, Metropolitan News Company