                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 17 2014

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

UNITED STATES OF AMERICA,                        No. 12-30366

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00088-FVS-1

  v.
                                                 MEMORANDUM*
KARL F. THOMPSON, Jr.,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Eastern District of Washington
                Fred L. Van Sickle, Senior District Judge, Presiding

                        Argued and Submitted June 2, 2014
                               Seattle, Washington

Before: McKEOWN and WATFORD, Circuit Judges, and WHYTE, Senior
District Judge.**

       1. The government does not challenge the district court’s determination that

it suppressed exculpatory material by failing to disclose its full knowledge of the

opinions of its expert, Grant Fredericks. That failure, however, did not prejudice

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Ronald M. Whyte, Senior District Judge for the U.S.
District Court for the Northern District of California, sitting by designation.
                                                                          Page 2 of 3
Karl Thompson under Brady v. Maryland, 373 U.S. 83 (1963), as Thompson has

not shown that “there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different.”

Strickler v. Greene, 527 U.S. 263, 280 (1999).

      Unlike the evidence at issue in United States v. Olsen, 704 F.3d 1172, 1184

(9th Cir. 2013), the evidence here could not have been used to impeach the

government’s expert at trial, since Fredericks did not testify. Further, the

government’s pre-trial disclosures put Thompson on notice of potentially favorable

opinions in Fredericks’ reports; Thompson was thus not deprived of the

opportunity to develop a defense strategy that utilized those opinions. Finally, the

non-disclosure did not impede Thompson’s ability to cross-examine the

government’s witnesses. Almost all of Fredericks’ opinions, to the extent they

were favorable to Thompson, were “merely cumulative” of Thompson’s own

expert’s opinions. United States v. Kohring, 637 F.3d 895, 902 (9th Cir. 2011).

      2. The district court did not abuse its discretion in admitting testimony

about the victim’s behavior prior to and during the incident. See Boyd v. City &

Cnty. of S.F., 576 F.3d 938, 948 (9th Cir. 2009). Evidence that the victim was not

fleeing or hiding from police undermined Thompson’s claim that the victim used

the soda bottle he was holding as a weapon. The evidence did not raise an undue
                                                                          Page 3 of 3
risk that the jury would impute knowledge of the victim’s innocence to Thompson.

See id. at 947–49.

      3. The district court did not err in instructing the jury. The court’s

instructions correctly stated the intent requirement of 18 U.S.C. § 242. As we have

previously held, “‘willfulness’ encompasses reckless disregard of a constitutional

requirement that has been made specific and definite.” United States v. Koon, 34

F.3d 1416, 1449 (9th Cir. 1994) (internal quotation marks omitted), aff’d in part,

rev’d in part on other grounds, 518 U.S. 81 (1996).

      4. The district court did not err in denying Thompson’s motion for a new

trial on the ground of alleged juror misconduct. The juror’s “off-the-cuff

statement” about historical corruption in Spokane does not “resemble the type of

‘extraneous information’ this court proscribes.” Price v. Kramer, 200 F.3d 1237,

1255 (9th Cir. 2000). Even if the juror’s isolated comment constituted

impermissible extraneous information, Thompson has not shown “a reasonable

possibility that the extrinsic material could have affected the verdict.” United

States v. Mills, 280 F.3d 915, 921 (9th Cir. 2002).

      AFFIRMED.
