                                                                              FILED
                           NOT FOR PUBLICATION                                AUG 12 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-10471

              Plaintiff - Appellant,             D.C. No. 5:08-cr-00938-JW-2

  v.
                                                 MEMORANDUM*
JAMIE HARMON,

              Defendant - Appellee.


                   Appeal from the United States District Court
                     for the Northern District of California
                     James Ware, District Judge, Presiding

                     Argued and Submitted February 12, 2013
                            San Francisco, California

Before: FARRIS, THOMAS, and N.R. SMITH, Circuit Judges.

       The United States appeals the district court’s grant of Defendant Jamie

Harmon’s motion for a new trial. We have jurisdiction under 28 U.S.C. § 1291.

We conclude that the district court abused its discretion, and we reverse. Because

the parties are familiar with the facts, we need not recount them here.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                            I

      We review for abuse of discretion the district court’s grant of a new trial

under Federal Rule of Criminal Procedure 33. United States v. A. Lanoy Alston,

D.M.D., P.C., 974 F.2d 1206, 1211–12 (9th Cir. 1992). An error of law is an abuse

of discretion. United States v. Hinkson, 585 F.3d 1247, 1260 (9th Cir. 2009) (en

banc). Whether a district court’s jury instructions “omitted or incorrectly

described an element of [a criminal] offense” is a question of law and is reviewed

de novo. United States v. Thongsy, 577 F.3d 1036, 1040 (9th Cir. 2009). Likewise,

a district court’s determination that an instructional error at trial prejudiced a

defendant is a mixed question of law and fact that this Court reviews de novo. See

Herd v. Kincheloe, 800 F.2d 1526, 1528 (9th Cir. 1986).

                                           II

      “Any error, defect, irregularity, or variance that does not affect substantial

rights must be disregarded.” Fed. R. Crim. P. 52(a). This harmless error rule

applies to the district court’s consideration of motions for a new trial. See Fed. R.

Crim. P. 52(a) advisory committee’s note. It also applies to the omission of an

element from jury instructions. Neder v. United States, 527 U.S. 1, 15 (1999).

      The district court correctly concluded that it erred in failing to instruct the

jury that the government had to prove, as an element of the 18 U.S.C. §


                                           -2-
1956(a)(1)(B)(i) money laundering offense charged in counts three through seven,

that someone engaged in unlawful activity as specified in 18 U.S.C. § 1956(c)(7)

and that Harmon’s alleged financial transactions involved the proceeds of that

unlawful activity. See United States v. Alghazouli, 517 F.3d 1179, 1189 (9th Cir.

2008). However, the district court did not consider whether its error was harmless,

as it was required to do under Rule 52(a) and Neder. Instead, the district court

simply assumed that its error deprived Harmon of a fair trial. This alone was legal

error, and relying upon that legal error in deciding to grant Harmon a new trial was

an abuse of discretion. See Hinkson, 585 F.3d at 1260.

      Even if the district court had properly applied the harmless error analysis,

the instructional error would not have warranted a new trial because it was

harmless. “An error in misdescribing or omitting an element of the offense in a

jury instruction is harmless if it is ‘clear beyond a reasonable doubt that a rational

jury would have found the defendant guilty absent the error.’” Thongsy, 577 F.3d

at 1043 (quoting Neder, 527 U.S. at 18). Here, there was overwhelming evidence

showing that a theft of goods from an interstate shipment took place and that the

laundered funds were the proceeds of that theft. See Neder, 527 U.S. at 17;

Thongsy, 577 F.3d at 1043. Moreover, Harmon never challenged this evidence.

See Neder, 527 U.S. at 19; United States v. Driggers, 559 F.3d 1021, 1025 (9th


                                          -3-
Cir. 2009). Indeed, her principal defense was that she had no knowledge that the

funds came from unlawful activity, not that the funds did not derive from unlawful

activity or that unlawful activity never took place. Under these circumstances,

there is no reasonable doubt that a rational jury would have found Harmon guilty if

the district court had properly included the specified unlawful activity element in

the jury instructions. See Thongsy, 577 F.3d at 1043; see also Driggers, 559 F.3d

at 1025.

                                           III

      The district court’s failure to instruct the jury on the “specified unlawful

activity” element was error. However, the error was harmless. In failing to take

the harmlessness of its instructional omission into consideration, the district court

committed a legal error, and therefore abused its discretion in ordering a new trial

on the basis of its faulty instructions.

      REVERSED.




                                           -4-
