                                                                            FILED
                            NOT FOR PUBLICATION                              AUG 24 2010

                                                                         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. 09-30213

              Plaintiff - Appellee,              D.C. No. 3:07-cr-00103-RRB-1

  v.
                                                 MEMORANDUM *
DANNY MICHAEL HARVEY,

              Defendant - Appellant.



                   Appeal from the United States District Court
                             for the District of Alaska
                 Ralph R. Beistline, Chief District Judge, Presiding

                        Argued and Submitted July 27, 2010
                                Anchorage, Alaska

Before: SCHROEDER, O’SCANNLAIN and CLIFTON, Circuit Judges.

       Danny Michael Harvey appeals his conviction and sentence. He raises

several arguments, but his primary position is that the district court should have

dismissed the indictment, either as a matter of due process or in the exercise of the

district court’s supervisory authority. We affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      A district court may dismiss an indictment with prejudice if the government

engages in conduct that is so outrageous that it amounts to a due-process violation

or, in certain circumstances, in the exercise of its supervisory authority. See United

States v. Barrera-Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991). We address each

theory in turn. We do not describe the challenged conduct, with which the parties

are familiar.

      To justify dismissing an indictment on the basis of outrageous conduct, “the

Government’s conduct must be so grossly shocking and so outrageous as to violate

the universal sense of justice.” United States v. Smith, 924 F.2d 889, 897 (9th Cir.

1991). Additionally, the conduct must have violated “some protected right of the

defendant” to justify reversal. United States v. Payner, 447 U.S. 727, 737 n.9

(1980); see also United States v. Struckman, No. 08-30312, 2010 WL 2573211, at

*10 (9th Cir. June 29, 2010). No protected right of Harvey’s was violated here. We

have approved analogous conduct when appropriately controlled, and there is no

reason to believe that Harvey’s reaction would have been any different if

appropriate controls had been in place. See United States v. Mitchell, 915 F.2d 521,

526 (9th Cir. 1990).

      Turning to the district court’s refusal to dismiss the indictment in the

exercise of its supervisory authority, we note first that the district court did


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expressly consider this theory in its order concerning Harvey’s motion to dismiss

the second superseding indictment. The district court determined that it had

sufficiently exercised its supervisory responsibilities both by suppressing certain

evidence and by referring the questionable conduct to two agencies for review. We

agree.

         We review the district court’s determination for abuse of discretion. See

United States v. Chapman, 524 F.3d 1073, 1086 (9th Cir. 2008). In reviewing the

district court’s decision, we consider whether there has been flagrant misconduct,

whether that conduct resulted in substantial prejudice to the defendant, and whether

any lesser remedial action was available. See id. at 1087. The government asserts

that only prosecutorial misconduct can justify a court’s exercise of supervisory

authority, but our cases do not support that limitation. Cf. United States v. Simpson,

927 F.2d 1088, 1090 (9th Cir. 1991) (“Unless the law enforcement officers break

the law, the court has no authority to sanction them.”). Yet as we discussed above,

Harvey suffered no prejudice from the government’s conduct. And the district

court demonstrated that a lesser remedial action was available by taking it.

Refusing to dismiss the indictment was not an abuse of discretion.

         Harvey also contends that the district court erred by granting the

government’s motion in limine concerning the cross-examination of the agent who


                                             3
investigated Harvey’s case. We need not reach the question whether the district

court abused its discretion, because any error was harmless beyond a reasonable

doubt. See United States v. Larson, 495 F.3d 1094, 1107–08 (9th Cir. 2007) (en

banc). The evidence against Harvey, including chat transcripts, emails, and the

physical evidence that Harvey carried with him to Alaska, overwhelmingly

supports his convictions. Impeaching the agent would not have affected the

outcome. Allowing expanded cross-examination would not have changed the

result.

          Harvey next suggests that the district court failed to rule on whether

evidence that had been suppressed at trial could be considered at sentencing and

whether Harvey should have the right to confront witnesses against him during the

sentencing hearing. The transcript of the sentencing hearing contradicts this

assertion. The district court ruled, correctly, that it could consider both the

suppressed evidence and the hearsay concerning Harvey’s prior conduct. See

United States v. Littlesun, 444 F.3d 1196, 1200 (9th Cir. 2006); United States v.

Haynes, 216 F.3d 789, 801 (9th Cir. 2000).

          Harvey finally argues that his sentence was substantively unreasonable.

Harvey frames the argument as procedural, asserting that the district court reneged

on a promise not to place undue emphasis on conduct that Harvey engaged in


                                              4
earlier in his life. But the district court’s weighing of “the history and

characteristics of the defendant” goes to a sentence’s substantive reasonableness.

18 U.S.C. § 3553(a)(1). We review for abuse of discretion. See United States v.

Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).

      Harvey’s conviction for attempting to violate 18 U.S.C. § 2241 required the

district court to impose a mandatory minimum sentence of thirty years. After

considering not only Harvey’s prior conduct, but also his lack of remorse, the

vulnerability of his intended victim, the danger he posed to the public, and his

convictions on three additional counts, including two that involved actual victims,

the district court sentenced Harvey to thirty-six years’ imprisonment. Considering

the totality of the circumstances, including the variance below the Guidelines range

of life imprisonment, the sentence was substantively reasonable and was not an

abuse of the district court’s discretion. See Carty, 520 F.3d at 993.

      AFFIRMED.




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