United States v. Jack Hessiani

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 30 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10176
Plaintiff-Appellee, D.C. No.
2:16-cr-00320-LRH-VCF-1
v.
JACK BENJAMIN HESSIANI, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted September 11, 2019
San Francisco, California
Before: WALLACE, BEA, and FRIEDLAND, Circuit Judges.
Jack Benjamin Hessiani appeals from his conviction for knowingly possessing
a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2), and from
his 77-month sentence. For the following reasons, we affirm the conviction and
sentence.
1. We decline to apply de novo review to Hessiani’s challenge of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
government’s peremptory strike against juror T.O. under Batson v. Kentucky, 476
U.S. 79 (1986). The district court made a “deliberate decision whether purposeful
discrimination occurred.” United States v. Alanis, 335 F.3d 965, 969 (9th Cir. 2003).
After hearing from the parties on the Batson challenge, the district court decided to
“overrule the challenge” because it was “satisfied with the government’s
explanation.” Because the district court evaluated Hessiani’s challenge under all
three steps of Batson, we review the challenge on appeal for clear error. See Snyder
v. Louisiana, 552 U.S. 472, 477 (2008).
The district court did not clearly err in concluding Hessiani failed to meet his
burden to show that race was a “substantial motivating factor in the prosecutor’s
decision to strike.” Cook v. LaMarque, 593 F.3d 810, 822 (9th Cir. 2010). The
district court evaluated the prosecutor’s reasons and credibility in their totality. See
Mitleider v. Hall, 391 F.3d 1039, 1047 (9th Cir. 2004). Particularly given the
criminal justice subject T.O. had studied, we do not have a basis to doubt the district
court’s conclusion that the government’s explanation for the strike based on age,
education, and life experience as a “combination” was not pretextual.
2. The district court did not constructively amend the indictment. The
indictment charged that Hessiani knowingly possessed two firearms when he was a
convicted felon. The district court’s instructions permitted the jury to convict
Hessiani if it found he knowingly possessed at least one of two firearms. Because
2
the type of firearm possessed is not an essential element of section 922(g)(1), the
jury was not permitted to convict Hessiani for uncharged conduct. See United States
v. Hartz, 458 F.3d 1011, 1021 (9th Cir. 2006). United States v. Ward, 747 F.3d
1184, 1191–92 (9th Cir. 2014), is distinguishable because there the jury instructions
allowed the jury to convict for uncharged conduct.
The variance did not prejudice Hessiani’s substantial rights. Just as in Hartz,
the difference between the indictment and jury instructions was “minor,” and not of
the nature that risked “blindsiding a defendant with an unforeseeable basis of
liability or prosecution strategy.” Hartz, 458 F.3d at 1022–23. The shooting range
manager and assistant manager both testified that every gun at the range was from
out of state. The ATF agent testified that all of the guns at issue were manufactured
in either New Hampshire or Germany. Hessiani had ample opportunity to cross-
examine these witnesses to cast doubt on the interstate nexus element of section
922(g)(1).
3. Even if the district court erred in admitting the out-of-court recorded
statement of Hessiani’s cousin, Jose Aceves, the error was harmless. Aceves
provided testimony that incriminated Hessiani independent of the recording. There
was other ample evidence in the record to support a guilty verdict. Any error did
not more likely than not affect the guilty verdict. See United States v. Edwards, 235
F.3d 1173, 1178 (9th Cir. 2000).
3
4. The district court did not plainly err in admitting evidence related to
Hessiani’s nolo contendere pleas. The district court properly admitted exhibit 11,
which contained Hessiani’s nolo contendere judgment of conviction and sentence
for willful infliction of corporal injury under California Penal Code § 273.5, threats
to commit a crime under California Penal Code § 422, and stalking under California
Penal Code § 646.9(A). Because the judgment of conviction and sentence from
Hessiani’s nolo contendere plea were introduced to show that Hessiani had
previously been convicted of a felony, they were admissible under Federal Rule of
Evidence 803(8). See United States v. Nguyen, 465 F.3d 1128, 1132 (9th Cir. 2006)
(stating that judgments of conviction may be admissible under Rule 803(8) “to prove
some other element of a subsequently charged crime”). Because exhibit 11 was
admissible, the district court’s decision to admit exhibit 10, which contained the
change of plea minutes and plea agreement for Hessiani’s nolo contendere plea to
insurance fraud under California Penal Code § 550(b)(1), did not affect Hessiani’s
substantial rights.
5. The district court properly concluded that there was sufficient evidence
to support the section 922(g)(1) conviction. Because exhibit 11 was admissible, the
government established that Hessiani had been previously convicted of a felony.
6. The district court properly enhanced Hessiani’s sentence under
U.S.S.G. §§ 2K2.1 and 4B1.2(a) for his prior convictions of willfully inflicting
4
corporal injury, see California Penal Code § 273.5, and making criminal threats, see
California Penal Code § 422. United States v. Castleman, 572 U.S. 157 (2014), did
not undermine our established precedent that the offenses in sections 273.5 and 422
are crimes of violence. See id. at 170; Arellano Hernandez v. Lynch, 831 F.3d 1127,
1132 (9th Cir. 2016) (holding “conviction for attempted criminal threats” under
California Penal Code § 422(a) “is categorically a crime of violence” even after the
Supreme Court’s decision in Castleman); United States v. Laurico-Yeno, 590 F.3d
818, 822 (9th Cir. 2010) (“Section 273.5 does not penalize minimal, non-violent
touchings. It penalizes the intentional use of force that results in a traumatic
condition.”). Hessiani’s state convictions qualified as crimes of violence, and the
enhancements were properly applied.
7. Hessiani was not entitled to relief under Rehaif v. United States, 139 S.
Ct. 2191 (2019). The indictment and the jury instructions contained the same
obvious error: They omitted the element that Hessiani knew he had previously been
convicted of a crime punishable by a term of imprisonment exceeding one year when
he possessed a firearm. See United States v. Benamor, No. 17-50308, 2019 WL
4198358, at *5 (9th Cir. Sept. 5, 2019). But because the record before the jury
established that Hessiani knew he had previously been convicted in California and
sentenced to imprisonment for more than one year when he possessed a firearm, the
error did not affect Hessiani’s substantial rights or seriously affect the fairness,
5
integrity, or public reputation of the judicial proceedings. See id. Hessiani was
sentenced to three years’ imprisonment for the felony offense of willful infliction of
corporal injury. Hessiani was also sentenced to sixteen months’ imprisonment for
making criminal threats, and to another sixteen months for stalking. The convictions
and sentences were properly before the jury.
AFFIRMED.
6