United States v. Shane Peterson ( 2019 )

FILED
NOT FOR PUBLICATION
JUL 18 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30144
Plaintiff-Appellee, D.C. No. 3:16-cr-00076-SLG-1
v.
MEMORANDUM*
SHANE DENALI PETERSON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Argued and Submitted June 10, 2019
Anchorage Old Federal Building, Alaska
Before: TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.
Shane Peterson appeals his conviction and sentence after a jury found him
guilty of violating 18 U.S.C. § 922(g)(1), which prohibits a person convicted of a
felony from possessing a firearm. We have jurisdiction under 28 U.S.C. § 1291
and we affirm. Because the parties are familiar with the facts of the case, we recite
them only as necessary.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Peterson challenges three actions of the district court. First, he argues that
the district court abused its discretion by denying his motion for a mistrial based on
the admission of unduly prejudicial information. Second, he argues that the district
court should have sua sponte conducted a limited hearing into juror bias or
misconduct. Third, he argues that the district court miscalculated his Sentencing
Guidelines range by erroneously applying the obstruction of justice enhancement.
I. Mistrial Motion
Peterson moved for a mistrial because several government witnesses
referenced the fact that he was taken into state custody on unrelated charges before
officers found the firearm that gave rise to the present charges.
Federal Rule of Evidence 404(b) generally prohibits admission of
“[e]vidence of other crimes, wrongs, or acts” than the charged offense. However,
other-acts evidence is not subject to Rule 404(b) if it is “inextricably intertwined”
with the charged offense. United States v. Vizcarra-Martinez, 66 F.3d 1006, 1012
(9th Cir. 1995). Evidence can be “inextricably intertwined” if it “was necessary
. . . to permit the prosecutor to offer a coherent and comprehensible story regarding
the commission of the [charged] crime.” Id. at 1012–13.
The district court did not abuse its discretion in denying a mistrial after
determining that the custody evidence was necessary to explain the events leading
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up to the discovery of the rifle and ammunition in Peterson’s car. The district
court could find “sufficient contextual . . . connection between the proffered
evidence and the alleged crime to justify exempting the evidence from the
strictures of Rule 404(b).” See id. at 1013.
In any event, the custody evidence was indistinct and its introduction was
therefore harmless. The evidence did not identify Peterson as the suspect in the
burglary investigation, there was no testimony as to why Peterson was taken into
custody, there was strong evidence of guilt, and the judge gave a jury instruction
admonishing that “You’re here only to determine whether the defendant is guilty
or not guilty of the charge in the indictment. The defendant is not on trial for any
conduct or offense not charged in the indictment.”
II. Juror Bias or Misconduct
A trial court has “broad discretion” to “respon[d] to allegations of juror bias
or misconduct,” including “discretion to determine whether and when to hold an
evidentiary hearing on such allegations.” United States v. Hendrix, 549 F.2d 1225,
1227 (9th Cir. 1977).
Here, the juror in question had volunteered at voir dire that she was “good
friends” with an Assistant U.S. Attorney, who was not involved in the prosecution
of this case. At that time, defense counsel did not request further questioning and
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did not move to strike the juror, either for cause or using one of several remaining
peremptories. The government informed the court on the final day of trial that the
juror had spoken on the phone with the AUSA’s spouse regarding an emergency
need for childcare because of a snowstorm. Defense counsel objected but again
did not request further questioning. Under these circumstances, the district court
did not abuse its discretion by finding no grounds to strike the juror for cause, even
without sua sponte inquiring further into the juror’s conversation.
Peterson’s reliance on Remmer v. United States, 347 U.S. 227 (1954), is
misplaced. Unlike the defendant in Remmer, Peterson was aware of the potential
misconduct during trial and yet did not request a hearing. Id. at 228. In addition,
unlike in Remmer, the juror’s outside communication in this case was not contact
that “is bound to impress the juror and is very apt to do so unduly.” Id. at 230.
III. Obstruction of Justice Enhancement
A defendant’s total offense level under the United States Sentencing
Guidelines may be increased by two levels if the defendant “willfully obstructed or
impeded, or attempted to obstruct or impede, the administration of justice.”
U.S.S.G. § 3C1.1. “[C]ommitting . . . perjury,” “unlawfully influencing a . . .
witness,” and “suborning . . . perjury” all constitute obstruction of justice. Id. cmt.
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4(A), (B). The district court found that Peterson both committed perjury himself
and suborned perjury by influencing his girlfriend to testify falsely under oath.
Peterson argues we must remand because the district court did not identify
the materiality of Peterson’s perjured testimony. As to Peterson’s own testimony,
we agree that the district court erred. See United States v. Castro-Ponce, 770 F.3d
819, 822 (9th Cir. 2014) (“To enhance a guidelines sentencing range, . . . a district
court must make explicit findings that not only did the defendant give false
testimony, but also that the falsehoods were willful and material to the criminal
charges.”). However, we affirm the district court on its alternative ground that
Peterson unlawfully influenced a witness and suborned perjury.
The strict requirement that a district court make an explicit finding of
materiality as to a defendant’s own perjury was adopted in part out of a concern
about “punishing a defendant for exercising her constitutional right to testify.”
United States v. Jimenez, 300 F.3d 1166, 1171 (9th Cir. 2002); see also Castro-
Ponce, 770 F.3d at 823 (noting that, as to a defendant’s perjury, “a more forgiving
standard . . . could have the unintended consequence of chilling a criminal
defendant’s willingness to take the stand and give testimony in his or her
defense”). This concern is not present where the obstruction enhancement is based
on suborning perjury of another witness.
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We review for clear error the district court’s factual finding that Peterson
influenced his girlfriend to give false testimony. See United States v. Garro, 517
F.3d 1163, 1171 (9th Cir. 2008). The district court did not clearly err in so finding.
The recorded jail calls, in combination with the trial testimony, provide adequate
grounds for the district court’s determination.
AFFIRMED.
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