United States v. Kaleb Cole ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 12 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-30015
Plaintiff-Appellee, D.C. No.
2:20-cr-00032-JCC-2
v.
KALEB J COLE, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted March 28, 2023
Seattle, Washington
Before: NGUYEN and HURWITZ, Circuit Judges, and GUTIERREZ,** Chief
District Judge.
Kaleb Cole was convicted on several counts of violating 18 U.S.C. §§ 245,
371, and 876(c) based on his participation in a campaign of mailing threatening
posters. Cole raises several challenges to his convictions and sentence. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Philip S. Gutierrez, Chief United States District Judge
for the Central District of California, sitting by designation.
jurisdiction under 28 U.S.C. § 1291 and affirm.
1. In reviewing a conviction based on a true threat, we “[d]efer[] to the
jury’s findings on historical facts, credibility determinations, and elements of
statutory liability” and “consider whether the verdict is supported by substantial
evidence.” United States v. Hanna, 293 F.3d 1080, 1088 (9th Cir. 2002). If
substantial evidence exists, “we then conduct an independent review of the record”
and decide whether the facts establish a true threat. Id. A true threat is a
“statement[] where the speaker means to communicate a serious expression of an
intent to commit an act of unlawful violence.” Thunder Studios, Inc. v. Kazal, 13
F.4th 736, 746 (9th Cir. 2021) (quoting Virginia v. Black, 538 U.S. 343, 359
(2003)).
The record supports the jury’s finding that the three mailed posters were true
threats under both an objective and subjective standard. See United States v.
Keyser, 704 F.3d 631, 638 (9th Cir. 2012). The first poster depicts a man in a skull
mask holding a Molotov cocktail in front of a burning house and states, “your
actions have consequences our patience has its limits.” The second poster states,
with the text broken up by swastikas, “we are watching we are noone [sic] we are
everyone we know where you live do not fuck with us.” And the third poster,
similarly broken up by swastikas, states, “two can play at this game these people
have names and addresses,” and depicts armed individuals below the phrase “death
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to pigs” standing behind another person. The victims who received the posters at
their homes testified that they feared for their safety, and group chat messages and
undercover recordings showed that Cole and his co-conspirators intended the
posters to communicate threats of violence.
2. We review a district court’s denial of a motion to suppress de novo,
United States v. Crews, 502 F.3d 1130, 1135 (9th Cir. 2007), and a magistrate
judge’s finding of probable cause to issue a search warrant for clear error, giving
“great deference” to that finding, United States v. Krupa, 658 F.3d 1174, 1177 (9th
Cir. 2011) (citation omitted). Here, the magistrate judge could reasonably infer
from the supporting affidavit that Cole discussed and coordinated the postering
campaign; other information also indicated Cole’s leadership and involvement in
Atomwaffen’s activities. The magistrate judge thus had a substantial basis to find
probable cause to search Cole’s house. See United States v. Gourde, 440 F.3d
1065, 1069 (9th Cir. 2006) (en banc) (explaining that courts should not “flyspeck”
an affidavit).
3. To receive a Franks hearing, a defendant must show that (1) the
affidavit contained intentionally or recklessly false statements or misleading
omissions and (2) the false statements or omissions were material to the finding of
probable cause. See United States v. Meek, 366 F.3d 705, 716 (9th Cir. 2004).
Here, the details about the FBI informant that were omitted from the affidavit were
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immaterial to the finding of probable cause. Even if the magistrate judge had
considered the informant’s fifteen-year-old conviction and receipt of
approximately $140,000 from the FBI over sixteen years, the other information in
the affidavit, such as screenshots of the group chat messages, nevertheless supports
a finding of probable cause. See United States v. Meling, 47 F.3d 1546, 1553–55
(9th Cir. 1995) (holding that the omission of an informant’s ten-year-old
convictions and receipt of a $100,000 reward was immaterial). The district court
thus did not err in denying a Franks hearing.
4. We review a district court’s denial of a motion to dismiss based on
speedy trial grounds de novo and the court’s factual findings for clear error.
United States v. Lam, 251 F.3d 852, 855 (9th Cir. 2001). The district court here
considered all applicable factors, including Cole’s eighteen-month pretrial
detention, issues stemming from the COVID-19 pandemic, the violent nature of his
felony charges, and Cole’s failure to consistently invoke his speedy trial right. The
district court thus did not err in denying Cole’s motion to dismiss. See United
States v. Olsen, 21 F.4th 1036, 1040–49 (9th Cir. 2022); United States v. King, 483
F.3d 969, 975–77 (9th Cir. 2007).
5. We review statutory and constitutional challenges to the composition
of a jury “independently and non-deferentially.” United States v. Sanchez-Lopez,
879 F.2d 541, 546 (9th Cir. 1989). Because Cole has failed to establish that jurors
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who are unvaccinated against COVID-19 constitute a distinctive group, his fair
cross section challenge fails. See Duren v. Missouri, 439 U.S. 357, 363–64 (1979);
United States v. Kleifgen, 557 F.2d 1293, 1296 (9th Cir. 1977).
6. We review factual findings made in conjunction with sentencing for
clear error and the application of the Sentencing Guidelines for abuse of discretion.
United States v. Harris, 999 F.3d 1233, 1235 (9th Cir. 2021). The district court did
not err in applying sentencing enhancements under U.S.S.G. §§ 2A6.2(b)(1)(D),
for Cole’s “threatened use[] of a dangerous weapon,” and 3B1.1(a), for Cole’s role
as an “organizer” or “leader,” because the poster depicting an individual with a
Molotov cocktail in front of a burning house is a true threat, and evidence, such as
group chat messages, undercover recordings, and trial testimony, showed that Cole
was an organizer and leader of the postering campaign.
AFFIRMED.
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