                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAY 06 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10563

              Plaintiff - Appellee,              D.C. No. 2:14-cr-00355-NVW-1

 v.
                                                 MEMORANDUM*
GREGORY LYNN SHRADER,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                      Neil V. Wake, District Judge, Presiding

                       Argued and Submitted April 13, 2016
                            San Francisco, California

Before: O’SCANNLAIN, CLIFTON, and N.R. SMITH, Circuit Judges.

      Gregory Lynn Shrader appeals from his convictions and sentence for

wilfully making a threat by means of an explosive, transporting explosive material,

mailing an injurious article, and unlawfully possessing explosive material. We

affirm.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court did not abuse its discretion in denying Shrader’s requests

to dismiss his retained counsel. Shrader’s initial motions to dismiss counsel did not

specify what course of action he intended to pursue if counsel was dismissed. He

could not be left unrepresented. The district court explicitly advised him that if he

wanted to represent himself, he had to request permission, as the court would have

to confirm his competence to waive counsel. If he wanted to substitute new

retained counsel, he could submit a stipulation with new counsel. If he wanted to

have counsel appointed on the basis of indigency, he would have to file a motion

that demonstrated his lack of resources. Shrader let more than a month pass before

responding. He did not move to appoint new counsel until December 5, 2014, ten

days before sentencing. At that point the district court appropriately provided him

with a financial affidavit form to be used for filing an application for appointed

counsel, but that form was not returned to the court until the same day that had

long been scheduled for sentencing. The district court was not even made aware of

it until after the hearing had started. In light of Shrader’s multiple earlier

opportunities to request the appointment of counsel, which he chose not to

exercise, the district court’s decision not to delay sentencing was justifiably

“compelled by ‘purposes inherent in the fair, efficient and orderly administration

of justice.’” United States v. Rivera-Corona, 618 F.3d 976, 979 (9th Cir. 2010).


                                            2
      Shrader’s sentence did not violate double jeopardy. We review double

jeopardy claims de novo. United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.

2005). In analyzing whether two offenses are duplicative we must determine

whether each statutory provision “requires proof of a fact which the other does not

not.” Blockburger v. United States, 284 U.S. 299, 304 (1932). The offenses in

counts 1 and 2 of the indictment are not duplicative. A conviction under 18 U.S.C.

§ 844(e), unlike one under § 844(d), requires that the jury find the existence of a

wilful threat, while a conviction under § 844(d), unlike § 844(e), requires the

transportation of an explosive. Similarly, count 3 is not a lesser included offense of

count 1 because the crime charged in count 3, unlike the wilful threat conviction,

requires a “deposit[] for mailing or delivery.” 18 U.S.C. § 1716(j)(1).

      There was sufficient evidence to support convictions for both counts 1 and 2.

So long as “any rational trier of fact could have found the essential elements of the

crime[s] beyond a reasonable doubt” we must affirm the convictions. United States

v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en banc). Regardless of whether the

explosive device mailed by Shrader was functional, the jury could rationally have

found that he intended that Sheriff Arpaio view the device as a sufficiently serious

threat or act of intimidation to motivate an investigation of William Stewart.




                                           3
       The district court did not abuse its discretion in applying the official-victim

sentencing enhancement under U.S.S.G. § 3A1.2. The enhancement applies even

where the harm to the official victim is purely a means to an end. See United States

v. Rivera-Alonzo, 584 F.3d 829, 836–37 (9th Cir. 2009). Irrespective of whether

Shrader’s ultimate goal was to harm Sheriff Arpaio, he intended that Arpaio be

intimidated as an element of his plan to frame Stewart and chose Arpaio as a victim

in part because of his official status.

       Finally, the district court did not err in admitting into evidence testimony

and documents relating to Shrader’s business relationship with Stewart and his

other attempts to frame Stewart for illegal activities. The evidence was directly

relevant to establishing Shrader’s motive for committing his crimes and his identity

as their perpetrator. Fed. R. Evid. 404(b)(2).

       AFFIRMED.




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