                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           APR 28 2011

                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S . CO U RT OF AP PE A LS

UNITED STATES OF AMERICA,                        No. 10-30038

              Plaintiff - Appellee,              D.C. No. 3:09-cr-05350-RBL-1

  v.
                                                 MEMORANDUM *
TODD GEHMAN HOWARD,

              Defendant - Appellant.



                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                            Submitted April 12, 2011**
                               Seattle, Washington

Before: KLEINFELD, TASHIMA, and SILVERMAN, Circuit Judges.

       Defendant-Appellant Todd Howard appeals his convictions for harboring a

fugitive, in violation of 18 U.S.C. y 1071, and maµing a false statement, in




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                         -2-

violation of 18 U.S.C. y 1001. We have jurisdiction pursuant to 28 U.S.C. y 1291

and we affirm.

I.    Sufficiency of the Evidence

      Viewing the evidence in the light most favorable to the prosecution, a

rational juror could have found all of the essential elements of both crimes beyond

a reasonable doubt. See Jacµson v. Virginia, 443 U.S. 307, 319 (1979).

      A.     Harboring a Fugitive

      The evidence was sufficient for the jury to have found that Howard µnew

about the warrant for Hughes's arrest. FBI Agent Kraus testified that he told

Howard to his face that Hughes had a warrant out for his arrest and was wanted by

the FBI. Cf. United States v. Yarbrough, 852 F.2d 1522, 1543 (9th Cir. 1988)

(holding that the government may prove µnowledge of the warrant by inference).

A reasonable juror could have concluded that Howard need not have physically

inspected the warrant to have µnowledge that Hughes was wanted.

      Howard provided food, shelter, a shower, and a ride to Hughes after being

told that Hughes was a fugitive. This rises to the level of harboring or concealing.

See id.; see also United States v. Hill, 279 F.3d 731, 738 (9th Cir. 2002). Hughes

told Howard he needed a ride to the storage unit so that he could retrieve items to

sell to aid in his disappearance. The evidence was sufficient for the jury to have
                                             -3-

found that Howard harbored Hughes with the intent to prevent his discovery or

arrest.

          B.    False Statement

          When asµed by Agent Reid Naµamura whether he µnew Hughes was

wanted, Howard said that he did not µnow. As already discussed, sufficient

evidence supports the jury's conclusion that Howard µnew about the warrant; that

same evidence supports a conclusion that Howard's statement to Naµamura was

false.

          As Howard's statement pertained to the FBI's investigation of Hughes's

flight from North Carolina, a jury could reasonably have found that the statement

was material. See United States v. Boone, 951 F.2d 1526, 1545 (9th Cir. 1991)

('The materiality requirement . . . is satisfied if the statement is capable of

influencing or affecting a federal agency.').

          Finally, Howard contests the sufficiency of the evidence of intent. Because

he raised this argument for the first time in his reply brief, it is waived, and we

decline to address it. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

II.       Agent Kraus's Testimony

          Howard expressly stated in his trial brief that, subject to a few conditions, he

did not object to Agent Kraus's proposed testimony about the Sovereign Citizen
                                          -4-

movement. In the absence of an objection, we review the admission of evidence

for plain error, and will only reverse if the appellant shows prejudice. See United

States v. Tisor, 96 F.3d 370, 376 (9th Cir. 1996).

       The majority of Agent Kraus's testimony, as appropriately limited by the

district court, was relevant because it tended to show Howard's motive and intent.

Even if some of the testimony might have been excluded had Howard objected as

arguably irrelevant because the government failed to show that Howard himself

held particular beliefs, any error in admitting the testimony was either not so

obvious and clear-cut so as to be 'plain,' or it was clearly harmless in the context

of the case.1

III.   Validity of the Indictment

       Howard waived any challenge to the validity of the indictment by failing to

raise alleged defects in the grand jury proceedings before trial. See United States v.

Cotton, 535 U.S. 625, 630 (2002) (holding that a defendant may waive his grand

jury right and that defects in an indictment do not deprive a court of subject matter

jurisdiction); see also United States v. Kahlon, 38 F.3d 467, 469 (9th Cir. 1994)


       1
        Howard's opening brief contains a passing mention of Kraus's supposed
testimony concerning Howard's truthfulness. Without any citations to authority or
to the record, or any attempt at argument, this completely undeveloped issue, if
indeed it is an issue, is waived. See United States v. Alonso, 48 F.3d 1536, 1544
(9th Cir. 1995).
                                           -5-

('Irregularities in grand jury proceedings are considered defects in the institution

of prosecution . . . . Failure to raise such defects before trial results in waiver of

the objections.').

       AFFIRMED.
                                                                              FILED
United States v. Howard, No. 10-30038                                          APR 28 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S . CO U RT OF AP PE A LS

TASHIMA, Circuit Judge, concuring in part and dissenting in part:

      I concur in all of the majority's disposition, except Part I.B. Because I do

not agree that the evidence is sufficient to sustain a conviction under 18 U.S.C. y

1001 for the maµing of a false statement to the FBI, I respectfully dissent in part.

      The charged false statement is that Defendant Howard said to FBI Special

Agent Reid Naµamura in response to Naµamura's question:

                    Did you µnow [Hughes] was wantedá

      Howard:       Who is he wanted byá

      Naµamura: The FBI. He's wanted by the FBI and he has an arrest warrant.

      Howard:       No. I didn't µnow.

      Defendant contends that the statement, 'No. I didn't µnow,' was not

material, which is an essential element of a false statement charge. See United

States v. Gaudin, 515 U.S. 506, 509 (1995) ('[C]onviction . . . requires that the

statements be 'material' to the Government inquiry, and that 'materiality' is an

element of the offense that the Government must prove.'). The majority

conclusorily states that 'a jury could reasonably have found that the statement was

material,' Maj. Disp. at 3 (citing United States v. Boone, 951 F.2d 1526, 1545 (9th

Cir. 1991) ('The materiality requirement . . . is satisfied if the statement is capable
of influencing or affecting a federal agency.'), but the evidence does not support

this assertion. There was no testimony or other showing as to how the statement

could have 'influenc[ed] or affect[ed]' the FBI. Agent Naµamura testified that the

question was '[j]ust a standard question,' 'a logical question.' Moreover, as the

majority concedes, the FBI already µnew the answer to the question because, as

FBI Special Agent Gregory Kraus testified at trial, 'he told Howard to his face that

Hughes had a warrant out for his arrest and was wanted by the FBI.' Maj. Disp. at

2. Thus, it is quite plain that Defendant's denial, 'No. I didn't µnow,' made at a

time when the FBI already µnew that Defendant did µnow, was not a material

statement. There is no way that this statement could have influenced the FBI and,

indeed, it did not.

       According to the Supreme Court, a 'misrepresentation is material if it has a

natural tendency to influence, or was capable of influencing, the decision of the

decision maµing body to which it was addressed.' Kungys v. United States, 485

U.S. 759, 770 (1988) (emphasis added). Similarly, we have said that '[a]

statement is considered material if it has the propensity to influence agency action .

. . .' United States v. Vaughn, 797 F.2d 1485, 1490 (9th Cir. 1986) (emphasis

added). The government must prove 'that the false statement has the intrinsic

capability of influencing or affecting the agency's or department's decision.'


                                          -2-
United States v. Facchini, 874 F.2d 638, 643 (9th Cir. 1989) (en banc) (emphasis

added). Here, there was no possibility that Defendant's false statement could have

influenced or affected the agency's, i.e., the FBI's, action because the FBI µnew

that the statement was false. After all, it was FBI Agent Kraus who told Defendant

that Hughes was wanted and had an outstanding arrest warrant. That Agent

Naµamura was momentarily misled because he did not then µnow all that the

agency itself µnew is of no moment. The statement was, in the circumstances,

incapable of influencing the FBI - the agency.

      Because the charged statement was not material, I would reverse the

conviction on the false statement charge, Count 2, vacate the sentence, and remand

for resentencing on the remaining count. I respectfully dissent from Part I.B of the

majority's disposition.




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