United States v. Karl Thompson, Jr. , 579 F. App'x 552 ( 2014 )

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                           NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS                            FILED
FOR THE NINTH CIRCUIT                              JUN 17 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 12-30366
Plaintiff - Appellee,              D.C. No. 2:09-cr-00088-FVS-1
v.
MEMORANDUM*
KARL F. THOMPSON, Jr.,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, Senior District Judge, Presiding
Argued and Submitted June 2, 2014
Seattle, Washington
Before: McKEOWN and WATFORD, Circuit Judges, and WHYTE, Senior
District Judge.**
1. The government does not challenge the district court’s determination that
it suppressed exculpatory material by failing to disclose its full knowledge of the
opinions of its expert, Grant Fredericks. That failure, however, did not prejudice
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Ronald M. Whyte, Senior District Judge for the U.S.
District Court for the Northern District of California, sitting by designation.
Page 2 of 3
Karl Thompson under Brady v. Maryland,

373 U.S. 83

 (1963), as Thompson has
not shown that “there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.”
Strickler v. Greene,

527 U.S. 263

, 280 (1999).
Unlike the evidence at issue in United States v. Olsen,

704 F.3d 1172

, 1184
(9th Cir. 2013), the evidence here could not have been used to impeach the
government’s expert at trial, since Fredericks did not testify. Further, the
government’s pre-trial disclosures put Thompson on notice of potentially favorable
opinions in Fredericks’ reports; Thompson was thus not deprived of the
opportunity to develop a defense strategy that utilized those opinions. Finally, the
non-disclosure did not impede Thompson’s ability to cross-examine the
government’s witnesses. Almost all of Fredericks’ opinions, to the extent they
were favorable to Thompson, were “merely cumulative” of Thompson’s own
expert’s opinions. United States v. Kohring,

637 F.3d 895

, 902 (9th Cir. 2011).
2. The district court did not abuse its discretion in admitting testimony
about the victim’s behavior prior to and during the incident. See Boyd v. City &
Cnty. of S.F.,

576 F.3d 938

, 948 (9th Cir. 2009). Evidence that the victim was not
fleeing or hiding from police undermined Thompson’s claim that the victim used
the soda bottle he was holding as a weapon. The evidence did not raise an undue
Page 3 of 3
risk that the jury would impute knowledge of the victim’s innocence to Thompson.
See

id.

 at 947–49.
3. The district court did not err in instructing the jury. The court’s
instructions correctly stated the intent requirement of

18 U.S.C. § 242

. As we have
previously held, “‘willfulness’ encompasses reckless disregard of a constitutional
requirement that has been made specific and definite.” United States v. Koon,

34 F.3d 1416

, 1449 (9th Cir. 1994) (internal quotation marks omitted), aff’d in part,
rev’d in part on other grounds,

518 U.S. 81

 (1996).
4. The district court did not err in denying Thompson’s motion for a new
trial on the ground of alleged juror misconduct. The juror’s “off-the-cuff
statement” about historical corruption in Spokane does not “resemble the type of
‘extraneous information’ this court proscribes.” Price v. Kramer,

200 F.3d 1237

,
1255 (9th Cir. 2000). Even if the juror’s isolated comment constituted
impermissible extraneous information, Thompson has not shown “a reasonable
possibility that the extrinsic material could have affected the verdict.” United
States v. Mills,

280 F.3d 915