United States v. Karen Hanover

FILED
NOT FOR PUBLICATION APR 23 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50023
Plaintiff - Appellee, D.C. No. 8:11-cr-00047-JST-1
v.
MEMORANDUM*
KAREN HANOVER, AKA Karen Elaine
Hanover,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Josephine Staton Tucker, District Judge, Presiding
Argued and Submitted April 12, 2013
Pasadena, California
Before: M. SMITH and MURGUIA, Circuit Judges, and ZOUHARY, District
Judge.**
After a short bench trial, the district court convicted Defendant–Appellant
Karen Hanover of violating 18 U.S.C. § 912 by pretending to be an agent of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
Federal Bureau of Investigation in order to demand information from—and make
threats to—a victim living in Southern California. The district court imposed a
sentence of six months imprisonment, a $5,000 fine, and a year of supervised
release. Owing to the circumstances by which Hanover came to be acquainted
with the victim (and others like the victim), the district court forbade Hanover from
being “self-employed, or employed by a business owned by a family member or
close personal friend” during her period of supervised release, “without prior
approval of the Probation Officer.” Hanover appeals, arguing the district court
lacked sufficient evidence to convict her of violating Section 912, that she was the
victim of prosecutorial misconduct (warranting dismissal of her indictment), and
that the aforementioned condition of supervised release is unconstitutionally
vague. We affirm the district court.
We review de novo the sufficiency of the evidence to convict Hanover, and
ask “whether, ‘after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” United States v. Juvenile Male, 666 F.3d
1212, 1214 (9th Cir. 2012) (citation omitted). The violation of Section 912 with
which Hanover was charged required the Government to prove that Hanover
claimed to be an FBI agent, and proceeded to “act[] as such.” 18 U.S.C. § 912.
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Hanover argues that while the evidence may have been sufficient to demonstrate
she claimed to be an FBI agent, it is insufficient to demonstrate that she
subsequently acted like one. We reject that argument. The evidence before the
district court demonstrated that Hanover not only told the victim that she was an
FBI agent, but also elicited information from the victim in that
capacity—information the victim would never have provided, but for Hanover’s
ruse. See United States v. Alvarez, 132 S. Ct. 2537, 2554 (2012) (Breyer, J.,
concurring) (“Statutes forbidding impersonation of a public official typically focus
on acts of impersonation . . . and may require showing that . . . someone was
deceived into following ‘a course [of action] he would not have pursued but for the
deceitful conduct.’” (quoting United States v. Lepowitch, 318 U.S. 702, 704
(1943))). Hanover then threatened to have the victim jailed. The credibility of
such a threat is at least enhanced by, if not dependent upon, the predicate that the
person making the threat is a federal agent.
Hanover next argues that prosecutorial misconduct—allegedly, the
withholding of evidence tending to impeach the victim—requires either the
dismissal of the indictment against her, or at least a hearing in the district court.
We review the district court’s refusal to dismiss an indictment because of
prosecutorial misconduct for abuse of discretion, and accept its factual findings
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supporting that decision unless clearly erroneous. United States v. Reyes, 660 F.3d
454, 461 (9th Cir. 2011); United States v. Struckman, 611 F.3d 560, 573, 577 (9th
Cir. 2010); United States v. Chapman, 524 F.3d 1073, 1084 (9th Cir. 2008). But
there is no punishable misconduct—that is, no violation of the Government’s
obligation to turn over supposed impeachment evidence in its possession—if the
withheld evidence is “inadmissible or could not be used for impeachment” or “is
‘merely cumulative’” of evidence already produced. United States v. Kohring, 637
F.3d 895, 901–03 (9th Cir. 2010) (quoting Morris v. Ylst, 447 F.3d 735, 741 (9th
Cir. 2006)). And whether evidence is admissible or useful in impeachment is also
a matter left to the district court’s discretion. Id.Hanover admits that, as it stands, “the record is clear” as to the victim’s
supposed history of dishonesty; consequently, any further evidence of the victim’s
dishonesty would be cumulative. Further, as the district court noted, the particular
evidence the Government is accused of withholding are “[s]tatements made more
than 13 years ago on an unrelated case [that] do not pertain to the subject matter to
which [the victim] will testify on direct examination in this case.” From these
facts, we would strain to discern any prosecutorial misconduct, and certainly
cannot find that the district court abused its discretion by declining to dismiss the
indictment.
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Finally, we turn to the argument that a condition of Hanover’s supervised
release is unconstitutionally vague. A condition of supervised release is
unconstitutionally vague if it leaves a defendant to guess about its intended
meaning. United States v. Preston, 706 F.3d 1106, 1122 (9th Cir. 2013). Here, if
Hanover questioned whether her prospective employer was too close a friend to
satisfy the condition that she not work for a “close personal friend,” she needed
only ask her probation officer for clarification. Indeed, Hanover was also required
by the terms of her supervised release to consult her probation officer before
accepting any employment, meaning she could never accidentally violate the close
personal friend condition, and thus would never be left to guess whether her
acceptance of a job would lead to the revocation of her supervised release.
AFFIRMED.
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