United States v. John Abell

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 27 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-10165
Plaintiff - Appellee, D.C. No. 2:11-cr-00354-GMN-
GWF-1
v.
JOHN ABELL, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief District Judge, Presiding
Argued and Submitted July 9, 2015
San Francisco, California
Before: TALLMAN, M. SMITH, and MURGUIA, Circuit Judges.
John Abell appeals his jury conviction for attempted coercion and
enticement of a minor, in violation of 18 U.S.C. § 2422(b).
1. The district court did not abuse its discretion when, in response to a jury
inquiry, the court informed the jury it did not need to unanimously agree as to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
which of Abell’s actions constituted a substantial step. The district court correctly
interpreted our holding in United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir.
2010), in a manner that fulfilled its “obligation, when a jury requests clarification
on an issue, to clear away confusion with concrete accuracy.” United States v.
McIver, 186 F.3d 1119, 1130 (9th Cir. 1999) (quotation omitted), overruled on
other grounds as recognized by United States v. Pineda-Moreno, 688 F.3d 1087,
1091 (9th Cir. 2012). Further, although the district court originally instructed the
jury it needed to unanimously agree on a substantial step—based on jointly-
stipulated jury instructions taken from an outdated version of our model
instructions—Abell has failed to show prejudice. The response appropriately
clarified confusion. There was no abuse of discretion.
2. The government did not commit prosecutorial misconduct during closing
arguments when it argued that a number of Abell’s actions, in the aggregate, could
constitute a substantial step. This is not a misstatement of our law. See United
States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (“When a defendant
initiates conversation with a minor, describes the sexual acts that he would like to
perform on the minor, and proposes a rendezvous to perform those acts, he has
crossed the line toward persuading, inducing, enticing, or coercing a minor to
engage in unlawful sexual activity.”).
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3. While the district court did err in admitting certain portions of Detective
Yurek’s testimony, speculating as to the motivations behind plain-language emails
from Abell and providing opinion testimony about legal conclusions on three
occasions, see United States v. Freeman, 498 F.3d 893, 905 (9th Cir. 2007), Abell
has failed to establish that the error affected his “substantial rights.” United States
v. Olano, 507 U.S. 725, 736 (1993). Abell has not alleged sufficient facts to
demonstrate a reasonable probability that, but for Detective Yurek’s impermissible
speculation, the jury would not have convicted him. Cf. United States v. Marcus,
560 U.S. 258, 262 (2010). Detective Yurek testified on the basis of evidence that
the jury had before it during deliberations. Moreover, the jury openly questioned
Detective Yurek’s testimony when the district court permitted a juror to ask, in the
middle of his testimony, whether he possessed any training in psychology on
which to base his speculation. The record thus demonstrates the jury was
appropriately critical in evaluating the weight to be accorded his improper
opinions.
4. No circuit has held any portion of 18 U.S.C. § 2422(b) unconstitutionally
void for vagueness, and Abell fails to present a compelling reason convincing us to
do so. Indeed, we have already outlined what behavior constitutes a substantial
step for the purposes of this statute. See Goetzke, 494 F.3d at 1237.
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5. The record currently before us is insufficient to reach the merits of
Abell’s ineffective assistance of counsel claim. See United States v. Rahman, 642
F.3d 1257, 1259-60 (9th Cir. 2011). To the extent he may have a colorable claim,
he may pursue it on petition for habeas corpus and a properly developed
evidentiary record.
6. Because we have identified only one error, there is nothing to
accumulate. See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002). We see
no basis to conclude cumulative error deprived Abell of a fair trial.
AFFIRMED.
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