                                                                              FILED
                           NOT FOR PUBLICATION
                                                                               JUN 21 2016
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-10486

              Plaintiff - Appellee,              D.C. No. 1:15-cr-00088-LJO-
                                                 SKO-1
 v.

BARRY LEE BOWSER, Jr.,                           MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                       Argued and Submitted June 16, 2016
                            San Francisco, California

Before: TALLMAN, CLIFTON, and IKUTA, Circuit Judges.

      Barry Lee Bowser, Jr., appeals his conviction after a jury trial for aiming a

laser pointer at an aircraft in violation of 18 U.S.C. § 39A. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. Any error the district court committed in failing to make an explicit

threshold determination endorsing Dr. McLin’s credentials to render a reliable

opinion is harmless. See Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457,

463-64 (9th Cir. 2014) (en banc). The submissions to the court, Dr. McLin’s

testimony, and voir dire by defense counsel at trial demonstrate that Dr. McLin

was qualified based on his knowledge and experience to testify about laser strikes

on aircraft and the effect of those strikes on vision. See United States v. Hankey,

203 F.3d 1160, 1169 (9th Cir. 2000). Though the district court stated that it would

make question-by-question rulings as to Dr. McLin’s testimony, Bowser did not

object to Dr. McLin’s testimony that it is necessary to aim a laser at an aircraft in

order to hit it. Even if this testimony exceeded the scope of Dr. McLin’s expertise,

its admission was not plain error, given the overwhelming evidence of Bowser’s

guilt. See Johnson v. United States, 520 U.S. 461, 470 (1997). Further, Dr.

McLin’s testimony did not violate Federal Rule of Evidence 704 because he did

not “draw the ultimate inference or conclusion for the jury and the ultimate

inference or conclusion d[id] not necessarily follow from [his] testimony.” United

States v. Morales, 108 F.3d 1031, 1038 (9th Cir. 1997). It remained for the jury to

decide whether Bowser acted intentionally in twice pointing the laser beam at the

sheriff’s helicopter. See id. at 1037-38.

                                            2
      2. Bowser has not shown the government failed to disclose exculpatory

material under Brady or Henthorn. The federal government is not obligated under

Federal Rule of Criminal Procedure 16 or Henthorn to review state law

enforcement files not within its possession or control. United States v. Dominguez-

Villa, 954 F.2d 562, 565-66 (9th Cir. 1992). And Bowser has not met his burden

of showing that the government withheld materially exculpatory evidence under

Brady. See United States v. Mincoff, 574 F.3d 1186, 1200 (9th Cir. 2009).

Further, none of the government’s allegedly late disclosures violated Bowser’s due

process rights because the documents were produced as soon as they were in

federal control, Bowser had the documents in sufficient time to use them, and

Bowser has not shown bad faith on the part of the prosecutor. See United States v.

Houston, 648 F.3d 806, 813 (9th Cir. 2011); United States v. Fort, 472 F.3d 1106,

1112 (9th Cir. 2007); United States v. Dupuy, 760 F.2d 1492, 1497 (9th Cir. 1985).

      3. Because we find “the [alleged] errors, even cumulatively, more probably

than not did not affect the verdict,” we also reject Bowser’s cumulative error

argument. United States v. Hermanek, 289 F.3d 1076, 1102 (9th Cir. 2002).

      4. The district court properly applied the obstruction of justice enhancement

because Bowser lied about, and then destroyed, material evidence – the laser

pointer device itself. See U.S.S.G. § 3C1.1.

                                         3
AFFIRMED.




            4
