NOT FOR PUBLICATION
D.C. No. 2:17-cr-00212-SAB-1 MEMORANDUM Appeal from the United States District Court for the Eastern District of Washington
Stanley Allen Bastian, District Judge, Presiding Argued and Submitted July 11, 2019 Portland, Oregon Before: TASHIMA, GRABER, and OWENS, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Defendant Robert Waggy stands convicted of telephone harassment in violation of Washington Revised Code section 9.61.230(1)(a), (b), which applies through the Assimilative Crimes Act, 18 U.S.C. § 13. In this disposition, we consider his claims of instructional error, and we affirm.
We review de novo whether a jury instruction misstates elements of the offense. United States v. Shipsey, 363 F.3d 962, 966 n.3 (9th Cir. 2004). We review for abuse of discretion the precise formulation of instructions. United States v. Dixon, 201 F.3d 1223, 1230 (9th Cir. 2000). Finally, we review for plain error when a defendant failed to object in the trial court. Jones v. United States, 527 U.S. 373, 386-88 (1999).
We resolve Defendant's First Amendment claim in an opinion filed this date. --------
1. Instructions 8 and 9
These instructions were nearly identical to the Washington Pattern Instruction, which lists the elements of telephone harassment. The instructions made it sufficiently clear that the government was required to prove that, on April 19, 2016, Defendant called Sandra Payne with the specific intent to harass her.
2. Response to Jury's Note
The fact that the jury asked a question concerning the instructions does not, without more, demonstrate that the instructions were inadequate. The court had discretion to refer the jury to the instructions because those instructions correctly stated the law. Arizona v. Johnson, 351 F.3d 988, 994 (9th Cir. 2003).
3. Instruction 11
At trial, Defendant objected on the ground that the statute reached constitutionally protected speech, a claim that we resolve in the opinion. His current claim, that Instruction 11 defined terms vaguely or too broadly, does not rise to the level of plain error.
AFFIRMED. TASHIMA, Circuit Judge, abstaining:
Because, as stated in my dissent from the majority opinion, I would reverse Waggy's conviction on First Amendment grounds, I would not reach the issues addressed by the majority's Memorandum. I therefore abstain from joining in the Memorandum.