                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 30 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-10344

              Plaintiff - Appellee,              D.C. No. 4:10-cr-03559-DCB-
                                                 JCG-1
  v.

JAMES DAVID ESSNER,                              MEMORANDUM*

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                       Argued and Submitted May 17, 2012
                            San Francisco, California

Before: REINHARDT, CLIFTON, and N.R. SMITH, Circuit Judges.

       James David Essner was convicted, after a bench trial, for threatening a

federal officer, and was sentenced to 57 months imprisonment. He appeals his

conviction and sentence. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Essner contends, first, that the district court improperly considered extrinsic

evidence at trial. The district judge listened to two voicemails, both properly

introduced into evidence, that Essner had left for pretrial services officer Michael

Himelic. He did so in order to compare what Essner sounded like when he

apologized, and was therefore likely lucid, with what he sounded like when he

made the threatening statement for which he had been criminally charged. The

district judge was permitted to make such a comparison, which did not require the

consideration of any extrinsic evidence.

      The district court also did not abuse its discretion in admitting the expert

testimony of pharmacist Robert Wolff. Wolff had the requisite “knowledge, skill,

experience, training, [and] education” to testify as to the pharmacological effects of

morphine. Fed. R. Evid. 702; see United States v. Smith, 520 F.3d 1097, 1105 (9th

Cir. 2008). In any event, the district court’s statements in rendering its verdict

make clear that it is “more probable than not that” Wolff’s testimony “did not

materially affect the verdict.” United States v. Seschillie, 310 F.3d 1208, 1214 (9th

Cir. 2002) (internal quotation marks omitted).

       Essner likewise cannot prevail on his challenge to the sufficiency of the

evidence to sustain his conviction. If the evidence is viewed “in the light most

favorable to the prosecution,” a “rational trier of fact could have found” that Essner


                                           2
had the specific intent to threaten when he left the voicemail. United States v.

Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en banc) (quoting Jackson v. Virginia,

443 U.S. 307, 319 (1979)). Most significant, Essner’s physician testified that he

had spoken with Essner twenty minutes before Essner left the voicemail, and that

he was lucid and rational despite the dose of morphine he had been administered

more than three hours earlier. Furthermore, given what Essner said in the

voicemail, and the reaction of those who heard it, there was sufficient evidence for

the trier of fact to conclude that “a reasonable person would foresee that the

statement would be interpreted by those to whom the maker communicate[d] the

statement as a serious expression of intent to harm or assault.” United States v.

Stewart, 420 F.3d 1007, 1016–17 (9th Cir. 2005) (internal quotation marks

omitted).

      For similar reasons, the statement Essner made in the voicemail was not

protected by the First Amendment, but was instead a criminally proscribable “true

threat.” Essner’s statement manifested a subjective intent to threaten Himelic, and

his physician’s testimony established that he was lucid at the time he did so. See

Virginia v. Black, 538 U.S. 343, 359 (2003).

      Finally, Essner’s 57-month sentence is not substantively unreasonable.

There was no impermissible double-counting in the calculation of Essner’s


                                          3
Guideline range, as the three enhancements that Essner claims were duplicative

each “serve[d] a unique purpose under the Guidelines.” United States v. Syrax,

235 F.3d 422, 428 (9th Cir. 2000) (internal quotation marks omitted). The district

court also did not abuse its discretion in declining to give greater weight to

Essner’s significant heart-related health problems.

      AFFIRMED.




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