                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            SEP 18 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-50640

              Plaintiff - Appellee,              D.C. No. 3:12-cr-01687-JLS-1

 v.
                                                 MEMORANDUM*
BRIAN CURTIS HILE,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                   Janis L. Sammartino, District Judge, Presiding

                       Argued and Submitted August 3, 2015
                               Pasadena, California

Before: D.W. NELSON, SILVERMAN, and WARDLAW, Circuit Judges.

      Appellant Brian Hile appeals his conviction of two counts of interstate

stalking in violation of 18 U.S.C. § 2261A(1) (2006). We have jurisdiction

pursuant to 28 U.S.C. § 1291. We affirm.




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

1.    Hile did not challenge the admission of statements he made at the El Cajon

police station or during the County Mental Health (CMH) intake interview as

coerced or involuntary in his motion to suppress. Thus, Hile waived these

challenges. See United States v. Murillo, 288 F.3d 1126, 1135 (9th Cir. 2002);

Fed. R. Crim. P. 12(b)(3), (c). As Hile has not offered any explanation as to why

he did not raise these challenges earlier, we will not decide these issues. Murillo,

288 F.3d at 1135 (waived challenges under Rule 12 may still be addressed “for

cause shown” (internal quotations and citation omitted)).

2.    The district court did not plainly err in allowing the government to cross-

examine Hile with statements he made at the El Cajon police station. Although the

statements were excluded from the government’s case-in-chief because they were

obtained illegally without a Miranda advisement, such statements may be used for

impeachment. See Harris v. New York, 401 U.S. 222, 225 (1971). The

government’s use of the El Cajon statements to impeach Hile’s statements during

direct examination was proper cross-examination. United States v. Havens, 446

U.S. 620, 626–29 (1980).

3.    Any error in denying Hile’s motion to suppress statements he made during

his CMH intake interview was harmless beyond a reasonable doubt. See Arizona


                                          2
v. Fulminante, 499 U.S. 279, 310 (1991) (plurality). Apart from Hile’s

incriminating statement of intent during the CMH interview, the government

introduced evidence of three separate occasions when Hile stated he intended to

kill or harm the victims. Thus, even without Hile’s statement at CMH, the

evidence of Hile’s intent to kill or harm the victims was overwhelming.

4.    The district court did not err in denying Hile’s motion to suppress the

statement he made to FBI Agent Kim on the basis it was involuntary. “[C]oercive

police activity is a necessary predicate to the finding that a confession is not

voluntary . . . .” Colorado v. Connelly, 479 U.S. 157, 167 (1986) (internal

quotations omitted). Hile’s claim fails as he argues only that his statement was

involuntary as a result of medication, and does not allege any police coercion.

Moreover, Hile did not present any evidence to the district court suggesting any

coercive actions.1

                                II. Jury Instructions

1.    Hile did not object to the district court’s mens rea jury instruction at trial.

Reviewing for plain error, the district court did not err by instructing the jury that



      1
       We decline to decide Hile’s claim, raised for the first time in reply, that his
spontaneous statement to FBI Agent Kim should have been suppressed as the fruit
of unconstitutional interrogations at the El Cajon police station and CMH. See
United States v. Romm, 455 F.3d 990, 997 (9th Cir. 2006).
                                           3
they must find Hile “had the intent to kill, injure, harass, or place under

surveillance with intent to kill, injure, harass or intimidate.” Even if § 2261A(1)

requires an intent of subjective purpose, rather than mere knowledge that such a

result is likely to occur, this standard was not “clear” or “obvious” under the law

that existed at the time. See United States v. Smith, 424 F.3d 992, 1002 (9th Cir.

2005) (“Plain error is so clear-cut, so obvious, a competent district judge should be

able to avoid it without benefit of objection.” (internal quotation and citation

omitted)). Thus, the district court did not err in its mens rea instruction.

2.    The district court also did not err by declining to give Hile’s proposed

instruction on the third element of interstate stalking. The proposed instruction

was, in part, an inaccurate statement of the elements of the crime. First, it stated

that the government must prove that “during or after [interstate travel],” Hile

placed the victims in a reasonable fear of death or serious bodily injury. This

formulation eliminated the “as a result of, [interstate] travel” prong of the statute.

See 18 U.S.C. § 2261A(1) (“and in the course of, or as a result of, such travel”).

      Second, the proposed instruction only stated that the jury must find that Hile

placed the targeted victims in “reasonable fear of death or serious bodily injury,”

eliminating the “or causes . . . substantial emotional distress” prong of the statute.

See id. In addition, although not wrong, Hile’s “committed an act” language was


                                            4
not necessary to state the third element of the crime accurately. The district court’s

instruction on the third element of interstate stalking was a correct statement of the

law, and thus the court did not abuse its discretion by declining to adopt Hile’s

formulation. See United States v. Johnson, 956 F.2d 197, 199 (9th Cir. 1992)

(“We review the formulation of jury instructions for abuse of discretion.”).

      Lastly, the district court did not err in its instruction on substantial emotional

distress. In accordance with the plain language of the statute, the instruction stated

correctly that the jury only had to determine if “substantial emotional distress” was

suffered and did not need to determine whether such suffering was reasonable.

18 U.S.C. § 2261A(1) (“places that person in reasonable fear of the death of, or

serious bodily injury to . . . or causes substantial emotional distress to” that

person).

3.    The district court also did not err by declining to give Hile’s theory of

defense instruction. The instruction given stated the elements of the offense

correctly and “adequately covered” Hile’s theory of defense. United States v.

Romero-Avila, 210 F.3d 1017, 1023 (9th Cir. 2000) (“[I]t is not reversible error to

reject a defendant’s proposed instruction on his theory of the case if other

instructions adequately cover the defense theory.”(internal quotations omitted)).




                                            5
                           III. Prosecutorial Misconduct

1.    During closing argument, the government argued that Hile would have the

requisite intent under § 2261A(1) even if he only intended to go to the victims’

apartment and request an apology for something he knew the victims did not do.

Hile did not object at trial, and we find that even assuming plain error, Hile has not

demonstrated any prejudice. See United States v. Dallman, 533 F.3d 755, 761 (9th

Cir. 2008) (plain error must affect “substantial rights”). As discussed earlier, the

evidence that Hile traveled with intent to kill or harm the victims was

overwhelming. As such, any error is not reversible.

2.    The government also argued in closing argument that, like a “lion stalking

her prey,” it was not necessary under the statute for the victims to know of Hile’s

actions as long as in the course of, or as a result, of his travel he placed the victims

in reasonable fear of death or serious bodily injury or caused substantial emotional

distress. Again, Hile did not object to this argument at trial, and reviewing for

plain error, we find none. The statute only requires the conduct place the victims

in reasonable fear of death/serious bodily injury or cause substantial emotional

distress—it does not necessarily require direct contact with the victims.




                                            6
                             IV. Sufficiency of the Evidence

          Lastly, Hile challenges the sufficiency of the evidence supporting his

convictions. Reviewing in the light most favorable to the government, the

evidence is “adequate to permit a rational juror to conclude that each essential

element of the [charges against Hile] was proved beyond a reasonable doubt.”

United States v. Begay, 673 F.3d 1038, 1044 (9th Cir. 2011) (en banc). As to the

first element of § 2261A(1), Hile does not dispute that he traveled interstate.

          As to the second element, the evidence that Hile intended to kill or harm the

victims was overwhelming. See 18 U.S.C. § 2261A(1). At trial, three different

witnesses testified to three different occasions on which Hile stated he intended to

kill or harm the victims. In addition, there was evidence that Hile hacked into the

victims’ email accounts and collected information about their home address and

contacts, went to the victims’ apartment and knocked on the door, had a notebook

with notes and lists that could be reasonably interpreted as a plan to kill the

victims, and conducted internet searches for how to buy chloroform and buck

knives. Sufficient evidence supports the jury’s finding that Hile had the requisite

intent.

          The evidence introduced at trial is also sufficient to support the jury’s

finding that “in the course of, or as a result of” Hile’s interstate travel, the victims


                                              7
experienced a reasonable fear of death or serious bodily injury or substantial

emotional distress. 18 U.S.C. § 2261A(1). Hile argues the evidence at the trial is

insufficient to support the jury’s finding because it was the police, and not Hile,

who contacted the victims and told them of Hile’s threatening behavior. But, a

reasonable juror could find that Hile’s actions “in the course of” his travel to San

Diego, such as his visit to the victims’ home, collection of supplies, and stated

intentions to kill, were the cause-in-fact and proximate cause of the victims’

reasonable fear and substantial emotional distress. See United States v. Spinney,

795 F.2d 1410, 1415 (9th Cir. 1986). It was reasonably foreseeable that the police,

once informed of Hile’s actions, would warn the victims and that the victims would

experience reasonable fear or substantial emotional distress as a result. See id.

The district court did not err in denying Hile’s motion for a judgment of acquittal.2

      AFFIRMED.




      2
        Although Hile did not renew his motion at the close of all evidence or in a
post-verdict motion, the government has not argued on appeal that this issue was
waived. See United States v. Winslow, 962 F.2d 845, 850 (9th Cir. 1992) (holding
we review unrenewed motions for judgment of acquittal “for plain error to prevent
a miscarriage of justice”). Thus, the government has “waive[d] waiver.” United
States v. Garcia-Lopez, 309 F.3d 1121, 1123 (9th Cir. 2002).
                                           8
