United States v. Gregory Shrader , 639 F. App'x 501 ( 2016 )

FILED
NOT FOR PUBLICATION
MAY 06 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10563
Plaintiff - Appellee, D.C. No. 2:14-cr-00355-NVW-1
v.
MEMORANDUM*
GREGORY LYNN SHRADER,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted April 13, 2016
San Francisco, California
Before: O’SCANNLAIN, CLIFTON, and N.R. SMITH, Circuit Judges.
Gregory Lynn Shrader appeals from his convictions and sentence for
wilfully making a threat by means of an explosive, transporting explosive material,
mailing an injurious article, and unlawfully possessing explosive material. We
affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The district court did not abuse its discretion in denying Shrader’s requests
to dismiss his retained counsel. Shrader’s initial motions to dismiss counsel did not
specify what course of action he intended to pursue if counsel was dismissed. He
could not be left unrepresented. The district court explicitly advised him that if he
wanted to represent himself, he had to request permission, as the court would have
to confirm his competence to waive counsel. If he wanted to substitute new
retained counsel, he could submit a stipulation with new counsel. If he wanted to
have counsel appointed on the basis of indigency, he would have to file a motion
that demonstrated his lack of resources. Shrader let more than a month pass before
responding. He did not move to appoint new counsel until December 5, 2014, ten
days before sentencing. At that point the district court appropriately provided him
with a financial affidavit form to be used for filing an application for appointed
counsel, but that form was not returned to the court until the same day that had
long been scheduled for sentencing. The district court was not even made aware of
it until after the hearing had started. In light of Shrader’s multiple earlier
opportunities to request the appointment of counsel, which he chose not to
exercise, the district court’s decision not to delay sentencing was justifiably
“compelled by ‘purposes inherent in the fair, efficient and orderly administration
of justice.’” United States v. Rivera-Corona, 618 F.3d 976, 979 (9th Cir. 2010).
2
Shrader’s sentence did not violate double jeopardy. We review double
jeopardy claims de novo. United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.
2005). In analyzing whether two offenses are duplicative we must determine
whether each statutory provision “requires proof of a fact which the other does not
not.” Blockburger v. United States, 284 U.S. 299, 304 (1932). The offenses in
counts 1 and 2 of the indictment are not duplicative. A conviction under 18 U.S.C.
§ 844(e), unlike one under § 844(d), requires that the jury find the existence of a
wilful threat, while a conviction under § 844(d), unlike § 844(e), requires the
transportation of an explosive. Similarly, count 3 is not a lesser included offense of
count 1 because the crime charged in count 3, unlike the wilful threat conviction,
requires a “deposit[] for mailing or delivery.” 18 U.S.C. § 1716(j)(1).
There was sufficient evidence to support convictions for both counts 1 and 2.
So long as “any rational trier of fact could have found the essential elements of the
crime[s] beyond a reasonable doubt” we must affirm the convictions. United States
v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en banc). Regardless of whether the
explosive device mailed by Shrader was functional, the jury could rationally have
found that he intended that Sheriff Arpaio view the device as a sufficiently serious
threat or act of intimidation to motivate an investigation of William Stewart.
3
The district court did not abuse its discretion in applying the official-victim
sentencing enhancement under U.S.S.G. § 3A1.2. The enhancement applies even
where the harm to the official victim is purely a means to an end. See United States
v. Rivera-Alonzo, 584 F.3d 829, 836–37 (9th Cir. 2009). Irrespective of whether
Shrader’s ultimate goal was to harm Sheriff Arpaio, he intended that Arpaio be
intimidated as an element of his plan to frame Stewart and chose Arpaio as a victim
in part because of his official status.
Finally, the district court did not err in admitting into evidence testimony
and documents relating to Shrader’s business relationship with Stewart and his
other attempts to frame Stewart for illegal activities. The evidence was directly
relevant to establishing Shrader’s motive for committing his crimes and his identity
as their perpetrator. Fed. R. Evid. 404(b)(2).
AFFIRMED.
4