United States v. Michelle Osborn ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 14 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30092
20-30144
Plaintiff-Appellee,
D.C. Nos.
v. 3:19-cr-05358-RBL-1
3:19-cr-05358-RBL
MICHELLE MADONA OSBORN,
Defendant-Appellant. MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted October 6, 2021**
Seattle, Washington
Before: PAEZ, M. SMITH, and NGUYEN, Circuit Judges.
Michelle Madona Osborn appeals her conviction and sentence for residential
burglary, theft, and possession of stolen property, in violation of Washington state
law. The property crimes occurred in Olympic National Park. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.
*
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).
1. Osborn challenges the district court’s dismissal of prospective Juror
31 “for cause” based on hardship. We review the district court’s decision for abuse
of discretion. See United States v. Milner, 962 F.2d 908, 911 (9th Cir. 1992).
Prospective Juror 31 worked for a cannabis grow farm and was responsible for
“compliance and inventory.” When asked if he had any hardship, prospective
Juror 31 stated that he was “concerned with being able to keep the company []
compliant, which is 24 hours a day.” The district court may remove prospective
jurors for hardship. 28 U.S.C § 1866(c). Doing so here was not an abuse of
discretion.
Osborn’s claim that the removal of prospective Juror 31
violated her Sixth Amendment right to an impartial jury also fails. Osborn does
not specifically argue the elements of a fair representation challenge, see Duren v.
Missouri, 439 U.S. 357, 364 (1979), and does not show that the district court
otherwise abused its broad discretion during jury selection, see United States v.
Calhoun, 542 F.2d 1094, 1103 (9th Cir. 1976) (“A trial judge has broad discretion
in this area which will not be reversed absent clear abuse.”). Osborn points to no
evidence that the seated jurors were partial or otherwise failed to perform their
duties.
2. Osborn also challenges the district court’s formulation of several jury
instructions. We review for abuse of discretion. See United States v. Garcia, 768
2
F.3d 822, 827 (9th Cir. 2014).
The district court did not abuse its discretion in denying Osborn’s request for
a special unanimity instruction on the two counts for theft and the third count for
possession of stolen property. The aggregation of items under a single count of
theft or possession of stolen property is specifically contemplated under
Washington state law. See Wash. Rev. Code §§ 9A.56.010(21)(c), (d). Under
Washington law, a person is guilty of theft in the third degree if he commits theft
of property or services which do not exceed $750 in value.1 Wash. Rev. Code §
9A.56.050. The statute does not define the type or quantum of property that must
be stolen. Wrongfully obtaining one item instead of or in addition to another is
simply a different means of committing third-degree theft. See State v. Vining, 472
P.2d 564, 568 (Wash. 1970) (providing that property stolen from the same owner
and the same place by a series of acts may fall under a single crime). The same is
true for the possession of stolen property charge. See Wash. Rev. Code §
9A.56.170; State v. McReynolds, 71 P.3d 663, 677 (Wash. 2003) (allowing
prosecutors to aggregate discrete possessions into a single count). Osborn further
contends that the jury’s note evidenced a “genuine possibility of jury
confusion.” United States v. Chen Chiang Liu, 631 F.3d 993, 1000 (9th Cir. 2011);
1
The value thresholds are not at issue here, because there is no minimum value for
third-degree theft or possession of stolen property, and the parties do not dispute
that the maximum amount of $750 has not been exceeded.
3
see also United States v. Echeverry, 719 F.2d 974, 975 (9th Cir. 1983). The
district court, however, considered the testimony about the household items and
reasonably concluded that the jury would be able to determine which items were
charged under Count 5. Therefore, the district court did not abuse its discretion in
denying Osborn’s request for specific unanimity instructions.
The district court also did not abuse its discretion in giving the jury an aiding
and abetting instruction. Aiding and abetting may be implied in every federal
offense. United States v. Vaandering, 50 F.3d 696, 702 (9th Cir. 1995). The
aiding and abetting instruction was particularly appropriate here because, during
closing arguments, Osborn raised the possibility that she did not personally remove
the stolen property. Osborn also introduced testimony that the safe she allegedly
stole weighed 50-60 pounds, then argued in closing arguments that it would have
been difficult to remove without help.
3. Finally, Osborn argues that her four-month custodial sentence
followed by three years of supervised release was substantively unreasonable
because the district court was concerned that she would be a “Typhoid Mary” for
the COVID-19 pandemic. Osborn failed to raise this objection below, and we
therefore review for plain error. United States v. Valencia-Barragan, 608 F.3d
4
1103, 1108 (9th Cir. 2010).2 Osborn faults the district court for its concern that she
may be unable to comply with public health measures relating to COVID-19, but
she has failed to show that this resulted in an unreasonable sentence. Other factors
under 18 U.S.C. § 3553(a) support Osborn’s sentence, which was on the lower end
of the mandatory three to nine months guideline range under Washington state law,
and substantially lower than the federal Sentencing Guidelines range of 30-37
months. Given Osborn’s arrest history, bond violations, and pending charges for
forgery and violating a no-contact order, her sentence was clearly reasonable and
well-supported by the record.
AFFIRMED.
2
But even if we were to review for abuse of discretion, as Osborn contends we
should, we would nevertheless affirm.
5