                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                           FOR THE NINTH CIRCUIT
                                                                             SEP 5 2019
UNITED STATES OF AMERICA,                        No. 18-30171            MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


              Plaintiff-Appellee,                D.C. No.
                                                 2:17-cr-00212-SAB-1
 v.

ROBERT WAGGY,                                    MEMORANDUM*

              Defendant-Appellant.


                   Appeal from the United States District Court
                      for the Eastern District of Washington
                  Stanley Allen Bastian, District Judge, Presiding

                        Argued and Submitted July 11, 2019
                                Portland, Oregon

Before: TASHIMA, GRABER, and OWENS, Circuit Judges.

      Defendant Robert Waggy stands convicted of telephone harassment in

violation of Washington Revised Code section 9.61.230(1)(a), (b), which applies




      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
through the Assimilative Crimes Act, 18 U.S.C. § 13. In this disposition, we

consider his claims of instructional error,1 and we affirm.2

        1. Instructions 8 and 9

        These instructions were nearly identical to the Washington Pattern

Instruction, which lists the elements of telephone harassment. The instructions

made it sufficiently clear that the government was required to prove that, on April

19, 2016, Defendant called Sandra Payne with the specific intent to harass her.

        2. Response to Jury’s Note

        The fact that the jury asked a question concerning the instructions does not,

without more, demonstrate that the instructions were inadequate. The court had

discretion to refer the jury to the instructions because those instructions correctly

stated the law. Arizona v. Johnson, 351 F.3d 988, 994 (9th Cir. 2003).




        1
         We review de novo whether a jury instruction misstates elements of the
offense. United States v. Shipsey, 363 F.3d 962, 966 n.3 (9th Cir. 2004). We
review for abuse of discretion the precise formulation of instructions. United
States v. Dixon, 201 F.3d 1223, 1230 (9th Cir. 2000). Finally, we review for plain
error when a defendant failed to object in the trial court. Jones v. United States,
527 U.S. 373, 386–88 (1999).
        2
            We resolve Defendant’s First Amendment claim in an opinion filed this
date.
                                           2
       3. Instruction 11

       At trial, Defendant objected on the ground that the statute reached

constitutionally protected speech, a claim that we resolve in the opinion. His

current claim, that Instruction 11 defined terms vaguely or too broadly, does not

rise to the level of plain error.

       AFFIRMED.




                                          3
                                                                         FILED
United States v. Waggy, No. 18-30171
                                                                           SEP 5 2019
TASHIMA, Circuit Judge, abstaining:                                   MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS


      Because, as stated in my dissent from the majority opinion, I would reverse

Waggy’s conviction on First Amendment grounds, I would not reach the issues

addressed by the majority’s Memorandum. I therefore abstain from joining in the

Memorandum.
