                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 28 2013

                                                                         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. 11-10458

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00271-MCE-1

       v.
                                                 MEMORANDUM *
REZA HOSSNIEH,

              Defendant - Appellant.

                  Appeal from the United States District Court
                      for the Eastern District of California
               Morrison C. England, Chief District Judge, Presiding

                      Argued and Submitted January 15, 2013
                            San Francisco, California

Before: TASHIMA, GRABER and FISHER, Circuit Judges.

      Reza Hossnieh appeals his conviction for threatening a federal officer to

interfere with his duties, in violation of 18 U.S.C. § 115. We affirm.

      1. The district court did not abuse its discretion by refusing to grant a

continuance to allow Hossnieh to provide the prosecution sufficient notice of intent

to rely on a psychiatric defense. Even if Hossnieh had provided adequate notice,


        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the district court indicated that it likely would have excluded the psychiatric report

because there was “no nexus shown” between the report and any trial issue. Thus,

any prejudice Hossnieh suffered from the denial of a continuance was insufficient

to warrant reversal. See United States v. Flynt, 756 F.2d 1352, 1359 (9th Cir.)

(considering prejudice) amended by 764 F.2d 675 (9th Cir. 1985).

      The proffered opinion of Dr. Sokolov that, as a result of bipolar disorder,

Hossnieh was acting impulsively when he threatened Detective Howisey, and that

Hossnieh may have suffered from delusions and grandiose thinking, does not

suggest that Hossnieh was incapable of forming intentions or acting to carry out

those intentions. Exclusion of the report for lack of a nexus would not have been

manifestly erroneous. See United States v. Demma, 523 F.2d 981, 987 (9th Cir.

1975) (en banc) (holding that the exclusion of psychiatric testimony proffered to

negate mens rea will not be disturbed unless it was “manifestly erroneous”); United

States v. Byers, 730 F.2d 568, 571 (9th Cir. 1984) (per curiam) (holding that “it

was not manifestly erroneous to conclude that the testimony should not be

admitted” where “the psychiatric testimony was ambiguous” and would not have

materially assisted a jury); United States v. Erskine, 588 F.2d 721, 722 (9th Cir.

1978) (recognizing a district court’s “wide latitude in admitting or excluding




                                           2
psychiatric testimony on the question of a defendant’s incapacity to form specific

intent”).

       2. The district court did not abuse its discretion by admitting pictures that

Hossnieh posted on MySpace depicting himself holding firearms. Detective

Howisey viewed these pictures before receiving the threatening communication.

Therefore, though prejudicial, see United States v. Hitt, 981 F.2d 422, 424 (9th Cir.

1992), the pictures were relevant to whether Howisey would interpret the

voicemail as a serious expression of Hossnieh’s intent to harm or assault him.

       3. The prosecution’s elicitation of testimony that tape is sometimes put

around the handles of shotguns to mask fingerprints and that killing a law

enforcement officer is sometimes part of a gang initiation was questionable, but not

plain error. This brief testimony – cumulatively, three questions and three answers

– was unlikely to have affected the outcome of the trial in light of the

overwhelming evidence of Hossnieh’s guilt. See United States v. Marcus, 130 S.

Ct. 2159, 2164 (2010) (holding that for error to be “plain,” there must be “a

reasonable probability that the error affected the outcome of the trial”); United

States v. Lui, 941 F.2d 844, 848 (9th Cir. 1991) (concluding that error is harmless

if there is overwhelming evidence of guilt).

       AFFIRMED.


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