                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUL 18 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 17-30144

              Plaintiff-Appellee,                D.C. No. 3:16-cr-00076-SLG-1

 v.
                                                 MEMORANDUM*
SHANE DENALI PETERSON,

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Alaska
                    Sharon L. Gleason, District Judge, Presiding

                       Argued and Submitted June 10, 2019
                      Anchorage Old Federal Building, Alaska

Before: TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.

      Shane Peterson appeals his conviction and sentence after a jury found him

guilty of violating 18 U.S.C. § 922(g)(1), which prohibits a person convicted of a

felony from possessing a firearm. We have jurisdiction under 28 U.S.C. § 1291

and we affirm. Because the parties are familiar with the facts of the case, we recite

them only as necessary.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Peterson challenges three actions of the district court. First, he argues that

the district court abused its discretion by denying his motion for a mistrial based on

the admission of unduly prejudicial information. Second, he argues that the district

court should have sua sponte conducted a limited hearing into juror bias or

misconduct. Third, he argues that the district court miscalculated his Sentencing

Guidelines range by erroneously applying the obstruction of justice enhancement.

                                  I. Mistrial Motion

      Peterson moved for a mistrial because several government witnesses

referenced the fact that he was taken into state custody on unrelated charges before

officers found the firearm that gave rise to the present charges.

      Federal Rule of Evidence 404(b) generally prohibits admission of

“[e]vidence of other crimes, wrongs, or acts” than the charged offense. However,

other-acts evidence is not subject to Rule 404(b) if it is “inextricably intertwined”

with the charged offense. United States v. Vizcarra-Martinez, 66 F.3d 1006, 1012

(9th Cir. 1995). Evidence can be “inextricably intertwined” if it “was necessary

. . . to permit the prosecutor to offer a coherent and comprehensible story regarding

the commission of the [charged] crime.” Id. at 1012–13.

      The district court did not abuse its discretion in denying a mistrial after

determining that the custody evidence was necessary to explain the events leading


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up to the discovery of the rifle and ammunition in Peterson’s car. The district

court could find “sufficient contextual . . . connection between the proffered

evidence and the alleged crime to justify exempting the evidence from the

strictures of Rule 404(b).” See id. at 1013.

      In any event, the custody evidence was indistinct and its introduction was

therefore harmless. The evidence did not identify Peterson as the suspect in the

burglary investigation, there was no testimony as to why Peterson was taken into

custody, there was strong evidence of guilt, and the judge gave a jury instruction

admonishing that “You’re here only to determine whether the defendant is guilty

or not guilty of the charge in the indictment. The defendant is not on trial for any

conduct or offense not charged in the indictment.”

                            II. Juror Bias or Misconduct

      A trial court has “broad discretion” to “respon[d] to allegations of juror bias

or misconduct,” including “discretion to determine whether and when to hold an

evidentiary hearing on such allegations.” United States v. Hendrix, 549 F.2d 1225,

1227 (9th Cir. 1977).

      Here, the juror in question had volunteered at voir dire that she was “good

friends” with an Assistant U.S. Attorney, who was not involved in the prosecution

of this case. At that time, defense counsel did not request further questioning and


                                          3
did not move to strike the juror, either for cause or using one of several remaining

peremptories. The government informed the court on the final day of trial that the

juror had spoken on the phone with the AUSA’s spouse regarding an emergency

need for childcare because of a snowstorm. Defense counsel objected but again

did not request further questioning. Under these circumstances, the district court

did not abuse its discretion by finding no grounds to strike the juror for cause, even

without sua sponte inquiring further into the juror’s conversation.

      Peterson’s reliance on Remmer v. United States, 347 U.S. 227 (1954), is

misplaced. Unlike the defendant in Remmer, Peterson was aware of the potential

misconduct during trial and yet did not request a hearing. Id. at 228. In addition,

unlike in Remmer, the juror’s outside communication in this case was not contact

that “is bound to impress the juror and is very apt to do so unduly.” Id. at 230.

                       III. Obstruction of Justice Enhancement

      A defendant’s total offense level under the United States Sentencing

Guidelines may be increased by two levels if the defendant “willfully obstructed or

impeded, or attempted to obstruct or impede, the administration of justice.”

U.S.S.G. § 3C1.1. “[C]ommitting . . . perjury,” “unlawfully influencing a . . .

witness,” and “suborning . . . perjury” all constitute obstruction of justice. Id. cmt.




                                           4
4(A), (B). The district court found that Peterson both committed perjury himself

and suborned perjury by influencing his girlfriend to testify falsely under oath.

      Peterson argues we must remand because the district court did not identify

the materiality of Peterson’s perjured testimony. As to Peterson’s own testimony,

we agree that the district court erred. See United States v. Castro-Ponce, 770 F.3d

819, 822 (9th Cir. 2014) (“To enhance a guidelines sentencing range, . . . a district

court must make explicit findings that not only did the defendant give false

testimony, but also that the falsehoods were willful and material to the criminal

charges.”). However, we affirm the district court on its alternative ground that

Peterson unlawfully influenced a witness and suborned perjury.

      The strict requirement that a district court make an explicit finding of

materiality as to a defendant’s own perjury was adopted in part out of a concern

about “punishing a defendant for exercising her constitutional right to testify.”

United States v. Jimenez, 300 F.3d 1166, 1171 (9th Cir. 2002); see also Castro-

Ponce, 770 F.3d at 823 (noting that, as to a defendant’s perjury, “a more forgiving

standard . . . could have the unintended consequence of chilling a criminal

defendant’s willingness to take the stand and give testimony in his or her

defense”). This concern is not present where the obstruction enhancement is based

on suborning perjury of another witness.


                                           5
      We review for clear error the district court’s factual finding that Peterson

influenced his girlfriend to give false testimony. See United States v. Garro, 517

F.3d 1163, 1171 (9th Cir. 2008). The district court did not clearly err in so finding.

The recorded jail calls, in combination with the trial testimony, provide adequate

grounds for the district court’s determination.

      AFFIRMED.




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