United States v. Ronald Horner ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 10 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30240
Plaintiff-Appellee, D.C. No.
4:16-cr-00040-BMM-1
v.
RONALD RAY HORNER, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Submitted December 6, 2018**
Seattle, Washington
Before: GRABER, McKEOWN, and CHRISTEN, Circuit Judges.
Ronald Horner appeals the district court’s refusal to declare a mistrial after a
Canadian law enforcement officer testified that Horner responded, “No way, nice
try,” when asked if he wanted to provide a statement while detained in Canada. At
the conclusion of trial, the jury found Horner guilty of transporting child
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
pornography in violation of 18 U.S.C. § 2252(a)(1), (b). Because the parties are
familiar with the facts, we do not repeat them here. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
We review for abuse of discretion the denial of a motion for mistrial. United
States v. Lemus, 847 F.3d 1016, 1024 (9th Cir. 2016).1 Even if we assume the
officer’s testimony violated Horner’s Fifth Amendment rights, the district court’s
curative jury instruction was insufficient, and Horner did not waive his objection to
the testimony, the Government has “demonstrate[d], beyond a reasonable doubt,
that the error was harmless.” United States v. Caruto, 532 F.3d 822, 827 (9th Cir.
2008) (citing United States v. Baker, 999 F.2d 412, 416 (9th Cir. 1993)). The brief
“extent of comments made by the [officer]” and the fact that “an inference of guilt
from silence was [not] stressed to the jury” support this conclusion. Id. at 831
(quoting United States v. Velarde–Gomez, 269 F.3d 1023, 1034 (9th Cir. 2001) (en
banc)). Importantly, even setting aside the disputed testimony, the totality of
evidence presented at trial was “virtually conclusive of guilt.” Whitehead,
200 F.3d at 639. Canadian officials testified that an initial review of Horner’s
laptop uncovered several illicit images, and a forensic examination revealed
hundreds of image and video files of child pornography and Internet activity
1
Because we would affirm under either standard of review, we need not decide
whether plain error review is more appropriate here. See United States v.
Whitehead, 200 F.3d 634, 638 (9th Cir. 2000).
2
suggesting that Horner accessed these and other illicit materials online. The jury
was presented with an illustrative sample of these files. Finally, the short duration
of jury deliberations here (i.e., less than an hour) further “suggest[s] that any error
in allowing [the disputed] testimony . . . was harmless.” United States v. Lopez,
500 F.3d 840, 846 (9th Cir. 2007) (two and a half hours of deliberation indicate
that it was not a “difficult case” for the jury to decide) (citation omitted).
AFFIRMED.
3