United States v. Terry Steward , 472 F. App'x 589 ( 2012 )


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  •                                                                               FILED
    NOT FOR PUBLICATION                                MAR 27 2012
    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. 11-50078
    Plaintiff - Appellee,                D.C. No. 2:06-cr-00864-MRH-1
    v.
    MEMORANDUM *
    TERRY LEE STEWARD,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Central District of California
    Michael R. Hogan, District Judge, Presiding
    Argued and Submitted March 7, 2012
    Pasadena, California
    Before: FARRIS, CLIFTON, and IKUTA, Circuit Judges.
    Steward was convicted of four counts of threatening a federal judge, in
    violation of 
    18 U.S.C. § 115
    (a)(1)(B). Steward claims that his statements did not
    constitute a true threat; that the district court should have disqualified his counsel
    and substituted new counsel; that the district court erred in admitting unduly
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    prejudicial evidence; that the district court failed to make the proper findings at
    sentencing to require psychotropic medication as a condition of supervised release;
    that the supervised release condition that Steward be placed in a residential reentry
    center was not reasonably related to the 
    18 U.S.C. § 3553
     factors; and that
    Steward’s term of supervised release should be reduced for excess time served in
    custody. We affirm.
    Because Steward moved for acquittal at trial, we review de novo the
    sufficiency of the evidence. United States v. Stewart, 
    420 F.3d 1007
    , 1014 (9th
    Cir. 2005). If there is sufficient evidence to support the verdict, we review de novo
    whether the communication at issue constitutes a “true threat.” 
    Id. at 1015
    ;
    Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life Activists,
    
    290 F.3d 1058
    , 1070 (9th Cir. 2002). The constitutionally required true threat
    analysis calls for a subjective test, which requires proof “that the speaker
    subjectively intended the speech as a threat.” Stewart, 
    420 F.3d at 1017
     (internal
    citation and quotations omitted); see United States v. Bagdasarian, 
    652 F.3d 1113
    ,
    1117 (9th Cir. 2011) (subjective test “must be read into all threat statutes that
    criminalize pure speech”). The evidence was sufficient to establish the elements of
    the statutory violation, see Stewart, 
    420 F.3d at 1015
    , and to establish that
    Steward’s statements constitute a “true threat.”
    2
    We review for abuse of discretion a district court’s refusal to substitute
    counsel. United States v. Prime, 
    431 F.3d 1147
    , 1154 (9th Cir. 2004). Steward
    argues that the district court should have substituted new counsel because of his
    counsel’s relationships with the judges threatened, and that conflict with his
    counsel may have interfered with representation. Nothing in the record indicates
    “a complete breakdown in communication and a consequent inability to present a
    defense.” 
    Id.
     (internal citation omitted). There was no abuse of discretion. See
    Casey v. Albertson’s, Inc., 
    362 F.3d 1254
    , 1257 (9th Cir. 2004).
    We review for “abuse of discretion a district court’s admission of evidence”
    and its “decision that the probative value of evidence exceeds its potential for
    unfair prejudice.” United States v. Curtin, 
    489 F.3d 935
    , 943 (9th Cir. 2007)
    (internal citation omitted). We review for plain error, however, when specific
    objection to the evidence was not made at trial. United States v. Graf, 
    610 F.3d 1148
    , 1164 (9th Cir. 2010). “Alleged threats should be considered in light of their
    entire factual context, including the surrounding events and reaction of the
    listeners.” United States v. Orozco-Santillan, 
    903 F.2d 1262
    , 1265 (9th Cir. 1990),
    overruled in part on other grounds by United States v. Hanna, 
    293 F.3d 1080
     (9th
    Cir. 2002). That context here includes images on the website visited by one of the
    3
    judges and the sword in one of those images. The district court did not abuse its
    discretion as to the sword or commit plain error as to the webpages.
    We review a district court’s decision to impose a condition of supervised
    release for abuse of discretion. United States v. Daniels, 
    541 F.3d 915
    , 924 (9th
    Cir. 2008). We review de novo whether a district court’s statement of reasons for
    the sentence it imposed is adequate. United States v. Miqbel, 
    444 F.3d 1173
    , 1176
    (9th Cir. 2006). The district court imposed the requirement that Steward take
    psychotropic medication as a condition of supervised release based on a sufficient,
    medically-informed record. United States v. Williams, 
    356 F.3d 1045
    , 1056 (9th
    Cir. 2004). The district court failed at sentencing to make the required findings for
    a condition that implicates such a particularly significant liberty interest, United
    States v. Stoterau, 
    524 F.3d 988
    , 1005 (9th Cir. 2008), but it cured this error with
    subsequent written findings. See Fed. R. Crim. P. 35(a). Neither the medication
    condition nor the related requirement that Steward be placed in a residential reentry
    center constitutes abuse of discretion.
    We review de novo the district court’s application of the supervised release
    statute. United States v. Anderson, 
    519 F.3d 1021
    , 1022 (9th Cir. 2008). “The
    term of supervised release commences on the day the person is released from
    imprisonment . . . [and] does not run during any period in which the person is
    4
    imprisoned.” 
    18 U.S.C. § 3624
    (e). The terms of imprisonment and of supervised
    release are not interchangeable. United States v. Johnson, 
    529 U.S. 53
    , 58-59
    (2000). Even if a defendant has served longer than his lawful sentence, the term of
    supervised release does not begin until his release. 
    Id. at 58
    .
    AFFIRMED.
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