United States v. Jesse Harrison ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 25 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-10634
Plaintiff - Appellee, D.C. No. 2:13-cr-00290-GMS-1
v.
MEMORANDUM*
JESSE QUINN HARRISON,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted March 11, 2015
San Francisco, California
Before: BERZON, BYBEE, and OWENS, Circuit Judges.
Jesse Quinn Harrison appeals his conviction for two counts of making
threats against the President of the United States in violation of 18 U.S.C. § 871,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
and the fifteen-month sentence imposed thereon. We affirm in part and dismiss in
part.1
1. Harrison argues that the district court plainly erred in permitting the
prosecutor, without objection from defense counsel, to mischaracterize the
subjective intent element of the crime in her closing argument. We conclude the
prosecutor did not misstate the law. Even if she had, Harrison is unable to show
the prejudice required for reversal. See United States v. Begay, 673 F.3d 1038,
1046-47 (9th Cir. 2011) (en banc). The prosecutor’s alleged misstatements were
preceded by correct statements of law, both by the court in the jury instructions and
by the prosecutor in her closing argument, and followed by correct statements of
law by the prosecutor and defense counsel in their respective closing arguments.
See id. at 1046; United States v. Medina Casteneda, 511 F.3d 1246, 1249-50 (9th
Cir. 2008) (no plain error where the jury instructions properly defined the relevant
law and no other evidence overcame the presumption that the jury accepts the law
as stated by the court). The fact that prior juries had failed to convict Harrison on
these charges does not convince us to conclude otherwise. See United States v.
1
The government’s motion to strike Harrison’s errata to his opening brief is
denied.
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Powell, 469 U.S. 57, 65 (1984). Contra United States v. Schuler, 813 F.2d 978,
982 (9th Cir. 1987).
2. The district court did not abuse its discretion in admitting evidence of
uncharged, dismissed, or acquitted threats under Rule 404(b). The prior acts were
probative of Harrison’s intent and motive, and that probative value outweighed any
risk of unfair prejudice to Harrison, particularly in light of the limiting instructions
given.
3. The district court did not err in imposing a two-level sentencing
enhancement because “the offense involved more than two threats.” U.S.
Sentencing Guidelines Manual (U.S.S.G.) § 2A6.1(b)(2)(A) (2013). Contrary to
Harrison’s argument, the Guideline does not require the district court to
specifically find that prior threats are “relevant conduct” under U.S.S.G. § 1B1.3
prior to applying the enhancement. Prior threatening acts may be considered so
long as they have a substantial and direct connection to the offense. U.S.S.G.
§ 2A6.1 cmt. n.1; see United States v. Neal, 776 F.3d 645, 660 (9th Cir. 2015).
The record shows at least two threats beyond those for which Harrison was
convicted that had a substantial and direct connection to the offenses of conviction.
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4. Harrison acknowledges that his appeal is moot insofar as it challenges a
particular condition of supervised release imposed in his original sentence, and
which no longer applies.
As to Harrison’s challenge to the condition of supervised release that no
longer applies, the appeal is DISMISSED. In all other respects, the conviction and
sentence are AFFIRMED.
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