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United States v. Robert Waggy ( 2019 )


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  •                            NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 5 2019
UNITED STATES OF AMERICA,                        No. 18-30171            MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Plaintiff-Appellee,                D.C. No.
2:17-cr-00212-SAB-1
v.
ROBERT WAGGY,                                    MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Stanley Allen Bastian, District Judge, Presiding
Argued and Submitted July 11, 2019
Portland, Oregon
Before: TASHIMA, GRABER, and OWENS, Circuit Judges.
Defendant Robert Waggy stands convicted of telephone harassment in
violation of Washington Revised Code section 9.61.230(1)(a), (b), which applies
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
through the Assimilative Crimes Act,
    18 U.S.C. § 13
    . In this disposition, we
consider his claims of instructional error,1 and we affirm.2
1. Instructions 8 and 9
These instructions were nearly identical to the Washington Pattern
Instruction, which lists the elements of telephone harassment. The instructions
made it sufficiently clear that the government was required to prove that, on April
19, 2016, Defendant called Sandra Payne with the specific intent to harass her.
2. Response to Jury’s Note
The fact that the jury asked a question concerning the instructions does not,
without more, demonstrate that the instructions were inadequate. The court had
discretion to refer the jury to the instructions because those instructions correctly
stated the law. Arizona v. Johnson,
    351 F.3d 988
    , 994 (9th Cir. 2003).
1
We review de novo whether a jury instruction misstates elements of the
offense. United States v. Shipsey,
    363 F.3d 962
    , 966 n.3 (9th Cir. 2004). We
review for abuse of discretion the precise formulation of instructions. United
States v. Dixon,
    201 F.3d 1223
    , 1230 (9th Cir. 2000). Finally, we review for plain
error when a defendant failed to object in the trial court. Jones v. United States,
    527 U.S. 373
    , 386–88 (1999).
2
We resolve Defendant’s First Amendment claim in an opinion filed this
date.
2
3. Instruction 11
At trial, Defendant objected on the ground that the statute reached
constitutionally protected speech, a claim that we resolve in the opinion. His
current claim, that Instruction 11 defined terms vaguely or too broadly, does not
rise to the level of plain error.
AFFIRMED.
3
FILED
United States v. Waggy, No. 18-30171
SEP 5 2019
TASHIMA, Circuit Judge, abstaining:                                   MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
Because, as stated in my dissent from the majority opinion, I would reverse
Waggy’s conviction on First Amendment grounds, I would not reach the issues
addressed by the majority’s Memorandum. I therefore abstain from joining in the
Memorandum.