United States v. Reza Hossnieh

FILED
NOT FOR PUBLICATION JAN 28 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10458
Plaintiff - Appellee, D.C. No. 2:08-cr-00271-MCE-1
v.
MEMORANDUM *
REZA HOSSNIEH,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Chief District Judge, Presiding
Argued and Submitted January 15, 2013
San Francisco, California
Before: TASHIMA, GRABER and FISHER, Circuit Judges.
Reza Hossnieh appeals his conviction for threatening a federal officer to
interfere with his duties, in violation of 18 U.S.C. § 115. We affirm.
1. The district court did not abuse its discretion by refusing to grant a
continuance to allow Hossnieh to provide the prosecution sufficient notice of intent
to rely on a psychiatric defense. Even if Hossnieh had provided adequate notice,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the district court indicated that it likely would have excluded the psychiatric report
because there was “no nexus shown” between the report and any trial issue. Thus,
any prejudice Hossnieh suffered from the denial of a continuance was insufficient
to warrant reversal. See United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir.)
(considering prejudice) amended by 764 F.2d 675 (9th Cir. 1985).
The proffered opinion of Dr. Sokolov that, as a result of bipolar disorder,
Hossnieh was acting impulsively when he threatened Detective Howisey, and that
Hossnieh may have suffered from delusions and grandiose thinking, does not
suggest that Hossnieh was incapable of forming intentions or acting to carry out
those intentions. Exclusion of the report for lack of a nexus would not have been
manifestly erroneous. See United States v. Demma, 523 F.2d 981, 987 (9th Cir.
1975) (en banc) (holding that the exclusion of psychiatric testimony proffered to
negate mens rea will not be disturbed unless it was “manifestly erroneous”); United
States v. Byers, 730 F.2d 568, 571 (9th Cir. 1984) (per curiam) (holding that “it
was not manifestly erroneous to conclude that the testimony should not be
admitted” where “the psychiatric testimony was ambiguous” and would not have
materially assisted a jury); United States v. Erskine, 588 F.2d 721, 722 (9th Cir.
1978) (recognizing a district court’s “wide latitude in admitting or excluding
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psychiatric testimony on the question of a defendant’s incapacity to form specific
intent”).
2. The district court did not abuse its discretion by admitting pictures that
Hossnieh posted on MySpace depicting himself holding firearms. Detective
Howisey viewed these pictures before receiving the threatening communication.
Therefore, though prejudicial, see United States v. Hitt, 981 F.2d 422, 424 (9th Cir.
1992), the pictures were relevant to whether Howisey would interpret the
voicemail as a serious expression of Hossnieh’s intent to harm or assault him.
3. The prosecution’s elicitation of testimony that tape is sometimes put
around the handles of shotguns to mask fingerprints and that killing a law
enforcement officer is sometimes part of a gang initiation was questionable, but not
plain error. This brief testimony – cumulatively, three questions and three answers
– was unlikely to have affected the outcome of the trial in light of the
overwhelming evidence of Hossnieh’s guilt. See United States v. Marcus, 130 S.
Ct. 2159, 2164 (2010) (holding that for error to be “plain,” there must be “a
reasonable probability that the error affected the outcome of the trial”); United
States v. Lui, 941 F.2d 844, 848 (9th Cir. 1991) (concluding that error is harmless
if there is overwhelming evidence of guilt).
AFFIRMED.
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