                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        SEP 23 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No.   17-50003

                Plaintiff-Appellee,              D.C. No.
                                                 2:16-cr-00550-BRO-1
 v.

MICHAEL ANDREW WALLENSTEIN,                      MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                       for the Central District of California
                 Beverly Reid O'Connell, District Judge, Presiding

                    Argued and Submitted September 12, 2019
                              Pasadena, California

Before: RAWLINSON, IKUTA, and BENNETT, Circuit Judges.

      Michael Wallenstein appeals his jury conviction for threatening to kill

Donald Trump and Hillary Clinton in violation of 18 U.S.C. § 879. Wallenstein

contends that the evidence presented at trial was insufficient to support his

conviction, various procedural errors require reversal, there was cumulative error,

and § 879 is unconstitutionally vague and overbroad. We have jurisdiction under



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
28 U.S.C. § 1291, and we affirm.

1.    “In reviewing for sufficiency of the evidence, we assess the evidence in the

light most favorable to the prosecution, determining whether any rational trier of

fact could have found the essential elements of the crime beyond a reasonable

doubt.” United States v. Stewart, 420 F.3d 1007, 1014–15 (9th Cir. 2005) (internal

quotation marks omitted) (quoting United States v. Orozco-Santillan, 903 F.2d

1262, 1264 (9th Cir. 1990)). And “[i]f sufficient evidence is found, we then

review de novo whether the facts as found by the jury establish the core

constitutional fact, in this case, a true threat.” Id. at 1015 (internal quotation marks

omitted) (quoting United States v. Hanna, 293 F.3d 1080, 1088 (9th Cir. 2002)).

“True threats” are “only those threats in which the ‘speaker means to communicate

a serious expression of an intent to commit an act of unlawful violence to a

particular individual or group of individuals.’” United States v. Bagdasarian, 652

F.3d 1113, 1122 (9th Cir. 2011) (quoting Virginia v. Black, 538 U.S. 343, 359

(2003)).

      The government had to prove “that the statement would be understood by

people hearing or reading it in context as a serious expression of an intent to kill or

injure,” Bagdasarian, 652 F.3d at 1118, “a member of the immediate family of a

former President[, or] . . . a major candidate for the office of President,” 18

U.S.C. § 879(a)(1), (3); and “that the defendant intended that the statement be


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understood as a threat,” Bagdasarian, 652 F.3d at 1118.1

        Wallenstein called a law enforcement tip line and stated that he wanted to

“confess” that he was “going to attempt an assassination on Donald Trump or

Hillary Clinton.” He stated that it was “not a joke” and he was “very serious.”

Wallenstein also stated that his feelings had been building over “the past year,”

that it “will be attempted,” and that he was willing to die. He didn’t say anything

to suggest that he was not serious. And to the extent his statements could be

interpreted as a plea for help, such an interpretation does not undercut the

threatening nature of his statements. The jurors could evaluate Wallenstein’s tone

and statements because they twice heard the entire recording of the call. We

conclude that the evidence was sufficient for any reasonable factfinder to conclude

beyond a reasonable doubt that Wallenstein violated § 879.

        We also conclude that the evidence established that Wallenstein made a

“true threat.” His statements “communicate[d] a serious expression of an intent to

commit an act of unlawful violence,” Bagdasarian, 652 F.3d at 1122 (quoting

Black, 538 U.S. at 359), against Trump and Clinton. And the context surrounding

his statements, as well as his explicit statements, show that he intended his

statements to be taken seriously. Thus, we hold that the evidence was sufficient to

support his conviction.


1
    The parties stipulated that Trump and Clinton were protectees under § 879(a).

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2.    Wallenstein challenges the jury instructions, but some of his challenges are

subject to plain error review because he failed to make them below. Under plain

error review, he must show “(1) that there was error, (2) that the error was plain,

and (3) that the error affected his substantial rights.” United States v. Alghazouli,

517 F.3d 1179, 1188 (9th Cir. 2008). Wallenstein must show prejudice in order to

demonstrate that any error affected his substantial rights. Id. at 1190 (“To show

prejudice, an appellant must show a reasonable probability that, but for the error

claimed, the result of the proceeding would have been different.” (internal

quotation marks and brackets omitted) (quoting United States v. Dominguez

Benitez, 542 U.S. 74, 82 (2004))).

      We review these arguments for plain error: (1) the instructions misstated the

law on the objective element; (2) the instructions on the intent element were

misleading; (3) the district court erred by failing to instruct on willfulness; and (4)

the district court erred by failing to give an instruction sua sponte on Wallenstein’s

theory of his defense—that he was asking for help. These arguments are

unavailing because Wallenstein either fails to show that the district court erred or

fails to show a reasonable probability that, but for the claimed errors, the verdict

would have been different.

      Wallenstein preserved his argument that the instructions failed to tell the

jury to consider context in deciding on the intent element. For preserved jury


                                           4
instruction challenges, the court “review[s] the jury instructions as a whole and

accord[s] the trial judge substantial latitude so long as the instructions fairly and

adequately covered the issues presented.” United States v. Moe, 781 F.3d 1120,

1127 (9th Cir. 2015) (internal quotation marks omitted) (quoting United States v.

Bauer, 84 F.3d 1549, 1560 (9th Cir. 1996)). Here, the record supports that the

instructions, as a whole, sufficiently told the jury to consider context in deciding on

the intent element. Notably, the instruction defining threat told the jury to

“consider the circumstances under which the alleged threat was made, including its

context.” The district court did not err.

      Finally, Wallenstein contends that the district court erred by failing to give a

dual role instruction. Wallenstein waived this argument because defense counsel

was aware of the applicable law and affirmatively agreed that the court could

remove the dual role instruction. See United States v. Perez, 116 F.3d 840, 845

(9th Cir. 1997).

3.    We next address Wallenstein’s argument that the district court abused its

discretion by admitting testimony held to be improper in Hanna, 293 F.3d at 1085–

86. “A district judge abuses his discretion when he acts arbitrarily or irrationally.”

United States v. Ford, 632 F.2d 1354, 1377 (9th Cir. 1980), overruled on other

grounds by United States v. De Bright, 730 F.2d 1255 (9th Cir. 1984) (en banc).

      Assuming without deciding that Wallenstein properly preserved this issue


                                            5
for appeal, we conclude that the district court did not abuse its discretion in

admitting the challenged testimony. Unlike in Hanna, 293 F.3d at 1085–86, the

witnesses here did not testify as experts, and they were the recipients of the threats,

so their reactions and opinions were relevant in considering the context

surrounding Wallenstein’s statements.

4.    Wallenstein argues that the district court erred in conducting voir dire by

failing to inquire adequately about law enforcement bias. We review this issue for

plain error because he did not make this objection below. Although the law

enforcement bias question proposed by the government is a standard question, and

it may have been better practice for the district court to have asked it, the district

court did not plainly error because, as a whole and given the broad discretion

afforded to the court in conducting voir dire, the questions were reasonably

sufficient to test the jury for potential law enforcement bias. See United States v.

Giese, 597 F.2d 1170, 1181–83 (9th Cir. 1979).

5.    As discussed above, there was no error at all as to Wallenstein’s preserved

challenge or the one alleged error we assume he preserved. We review “the

cumulative impact of the possible plain errors for plain error.” United States v.

Necoechea, 986 F.2d 1273, 1283 (9th Cir. 1993). Given the substantial evidence

against him, Wallenstein fails to show a reasonable probability that, but for the

possible plain errors, the verdict would have been different. There was no


                                           6
cumulative error requiring reversal.

6.    Wallenstein waived his argument that § 879 is unconstitutionally vague and

overbroad because he failed to raise it properly in his opening brief. See United

States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005).

      AFFIRMED.




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                                                     FILED
United States v. Wallenstein, Case No. 17-50003
                                                     SEP 23 2019
Rawlinson, Circuit Judge, concurring:
                                                  MOLLY C. DWYER, CLERK
                                                   U.S. COURT OF APPEALS
      I concur in the result.




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