United States v. Jimmy Miller, Jr. , 627 F. App'x 664 ( 2015 )

FILED
NOT FOR PUBLICATION
DEC 23 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30196
Plaintiff - Appellee, D.C. No. 2:13-cr-00249-RAJ
v.
MEMORANDUM*
JIMMY MILLER,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Western Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted December 07, 2015
Seattle, Washington
Before: HAWKINS and McKEOWN, Circuit Judges and GLEASON,** District
Judge.
Jimmy Miller appeals his conviction for felon in possession of a firearm,
arguing that the evidence was insufficient and that the district court abused its
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Sharon L. Gleason, District Judge for the U.S. District
Court for the District of Alaska, sitting by designation.
discretion when it admitted a witness’s prior consistent statements. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Viewing the evidence in the light most favorable to the government, Jackson
v. Virginia, 443 U.S. 307, 319 (1979), we hold there was sufficient evidence such that
a “rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” United States v. Gonzalez, 528 F.3d 1207, 1211 (9th Cir. 2008).
The jury was presented with considerable evidence that Miller possessed the gun,
including testimony by a witness who reported that earlier that same evening Miller
had shown her a handgun tucked into the waistband of his pants.
Miller also argues that the district court erred in admitting a witness’s prior
consistent statements. But these statements were properly admitted to rebut Miller’s
contention that the witness had testified untruthfully in the hope of receiving favorable
treatment with respect to her outstanding bench warrants. See Federal Rule of
Evidence 801(d)(1)(B); Arizona v. Johnson, 351 F.3d 988, 998–99 (9th Cir. 2003).
Moreover, even if the statements were admitted in error, any such error was harmless.
United States v. Rohrer, 708 F.2d 429, 433 (9th Cir. 1983) (“It is not, however, more
probable than not that its admission affected the verdict.” (internal quotation marks
omitted)). For if the prior consistent statements were not admitted, the jury would
have nonetheless heard the witness’s statements about the gun from three different
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sources: the witness herself, a bartender, and the 911 call. Thus, the prior consistent
statements were unlikely to have affected the verdict.
AFFIRMED.
3