In United States v. Walthall, --- F.4th ---, No. 22-50204 (9th Cir. 2025), the Court affirmed Walthall’s conviction for solicitation to commit a crime of violence, in violation of 18 U.S.C. § 373(a). Here are some key parts of the opinion:
While awaiting sentencing after having been found guilty of fraud, John Walthall asked a fellow inmate to help arrange for hit men to murder the judge, the investigators, and the attorneys involved in his fraud case. The inmate contacted authorities, and Walthall was ultimately convicted of solicitation to commit a crime of violence, in violation of 18 U.S.C. § 373(a). He now appeals, arguing that the evidence was insufficient because he had no direct contact with the hit men, who apparently did not exist. But the 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. Walthall’s other challenges to his conviction also lack merit—including his argument that the district court erred in finding him incapable of representing himself. We affirm.Walthall argues that the evidence was insufficient to allow the jury to find him guilty of soliciting a crime of violence because, he says, “nobody that Mr. Walthall spoke to was asked to murder the federal officials, nor was there any direct and known conduit to an actual person who would engage in the violent conduct.” In his view, 18 U.S.C. § 373(a) requires (1) that the defendant have “direct” communication with the person whom he intends to commit an act of violence and (2) that the person with whom he communicates be a specific “actual person.” We think the statute requires neither of those things.[W]e have little difficulty concluding that the evidence in this case was sufficient for conviction.Walthall advances three challenges to the jury instructions. The parties debate the standard of review that applies to those challenges, which Walthall did not advance below and arguably affirmatively waived. We need not resolve that debate because even if we were to review de novo, we would conclude that Walthall’s challenges fail.First, Walthall objects that although section 373(a) requires the defendant to intend that “another person” engage in a crime of violence and to solicit “such other person to engage in such conduct,” the instructions did not refer to “such other person” but simply repeated the phrase “another person.” As a result, he says, “the instructions eliminated the unity required between the solicited person and the intended violent conduct.” But the instructions required the jury to find that Walthall “solicited, commanded, induced, or otherwise endeavored to persuade another person to carry out a federal felony crime of violence”—in other words, that he solicited the person whom he intended to carry out the crime of violence. That is precisely the offense that the statute describes. Even if some other instruction might have been clearer, “[t]he availability of a better instruction is not a ground for reversal.” United States v. Garza, 980 F.2d 546, 554 (9th Cir. 1992) (quoting United States v. Ward, 914 F.2d 1340, 1344 (9th Cir. 1990)).Second, Walthall objects that the instructions did not specify that “another person” must be an actual person. As we have already explained, however, that is not an element of the statute.Third, Walthall contends that the district court erred in instructing the jury that “killing or attempting to kill any officer or employee of the United States . . . is a federal felony crime of violence.” In his view, the reference to attempt was confusing because the district court did not define attempt. The government acknowledges that given the nature of the charged conduct—that is, solicitation of actual murder, not attempted murder—it would have been better for the instructions not to refer to attempt. Assuming without deciding that the reference to attempt was legally erroneous, the error was harmless. See United States v. Bachmeier, 8 F.4th 1059, 1065 (9th Cir. 2021). Other parts of the instructions stated that “the United States alleges that the federal felony crimes of violence solicited were” murder and assault, without mentioning attempt. No evidence suggested that Walthall solicited attempted murder, and the prosecutor did not mention attempted murder in the opening statement or the closing arguments. And on the verdict form, the jury specifically found Walthall guilty of “soliciting the murder of” the five named victims, not of soliciting attempted murder. The reference to attempt therefore had no effect on the verdict.Next, Walthall challenges the district court’s denial of his right to represent himself.In the earlier appeal, we held that “once the district court determined that Walthall was competent to stand trial, the district court erred by not making further inquiry to support findings concerning Walthall’s ability to represent himself.” Walthall, 782 F. App’x at 580. We did not foreclose the district court from denying Walthall’s self-representation request under Edwards; we simply required the district court to conduct “further inquiry” and make appropriate “findings concerning Walthall’s ability to represent himself.” Id. That is exactly what it did.Walthall also asserts that Edwards does not apply in federal court because 28 U.S.C. § 1654 gives federal criminal defendants an absolute right to self-representation. It does not.Finally, Walthall asserts that the district court erred in calculating the applicable sentencing range under the advisory Sentencing Guidelines based on the maximum sentence for soliciting murder rather than for soliciting attempted murder. Because Walthall did not raise this issue at sentencing, we review for plain error. United States v. Bautista, 989 F.3d 698, 701 (9th Cir. 2021). We find none.As we have already explained, the jury returned a verdict finding Walthall guilty of soliciting the murder, not the attempted murder, of five people. The district court did not err in calculating Walthall’s sentence accordingly.
