                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUL 27 2015

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

UNITED STATES OF AMERICA,                        No. 14-10165

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00354-GMN-
                                                 GWF-1
 v.

JOHN ABELL,                                      MEMORANDUM*

              Defendant - Appellant.


                  Appeal from the United States District Court
                           for the District of Nevada
                Gloria M. Navarro, Chief District Judge, Presiding

                        Argued and Submitted July 9, 2015
                            San Francisco, California

Before: TALLMAN, M. SMITH, and MURGUIA, Circuit Judges.

      John Abell appeals his jury conviction for attempted coercion and

enticement of a minor, in violation of 18 U.S.C. § 2422(b).

      1. The district court did not abuse its discretion when, in response to a jury

inquiry, the court informed the jury it did not need to unanimously agree as to



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
which of Abell’s actions constituted a substantial step. The district court correctly

interpreted our holding in United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir.

2010), in a manner that fulfilled its “obligation, when a jury requests clarification

on an issue, to clear away confusion with concrete accuracy.” United States v.

McIver, 186 F.3d 1119, 1130 (9th Cir. 1999) (quotation omitted), overruled on

other grounds as recognized by United States v. Pineda-Moreno, 688 F.3d 1087,

1091 (9th Cir. 2012). Further, although the district court originally instructed the

jury it needed to unanimously agree on a substantial step—based on jointly-

stipulated jury instructions taken from an outdated version of our model

instructions—Abell has failed to show prejudice. The response appropriately

clarified confusion. There was no abuse of discretion.

      2. The government did not commit prosecutorial misconduct during closing

arguments when it argued that a number of Abell’s actions, in the aggregate, could

constitute a substantial step. This is not a misstatement of our law. See United

States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (“When a defendant

initiates conversation with a minor, describes the sexual acts that he would like to

perform on the minor, and proposes a rendezvous to perform those acts, he has

crossed the line toward persuading, inducing, enticing, or coercing a minor to

engage in unlawful sexual activity.”).


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      3. While the district court did err in admitting certain portions of Detective

Yurek’s testimony, speculating as to the motivations behind plain-language emails

from Abell and providing opinion testimony about legal conclusions on three

occasions, see United States v. Freeman, 498 F.3d 893, 905 (9th Cir. 2007), Abell

has failed to establish that the error affected his “substantial rights.” United States

v. Olano, 507 U.S. 725, 736 (1993). Abell has not alleged sufficient facts to

demonstrate a reasonable probability that, but for Detective Yurek’s impermissible

speculation, the jury would not have convicted him. Cf. United States v. Marcus,

560 U.S. 258, 262 (2010). Detective Yurek testified on the basis of evidence that

the jury had before it during deliberations. Moreover, the jury openly questioned

Detective Yurek’s testimony when the district court permitted a juror to ask, in the

middle of his testimony, whether he possessed any training in psychology on

which to base his speculation. The record thus demonstrates the jury was

appropriately critical in evaluating the weight to be accorded his improper

opinions.

      4. No circuit has held any portion of 18 U.S.C. § 2422(b) unconstitutionally

void for vagueness, and Abell fails to present a compelling reason convincing us to

do so. Indeed, we have already outlined what behavior constitutes a substantial

step for the purposes of this statute. See Goetzke, 494 F.3d at 1237.


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      5. The record currently before us is insufficient to reach the merits of

Abell’s ineffective assistance of counsel claim. See United States v. Rahman, 642

F.3d 1257, 1259-60 (9th Cir. 2011). To the extent he may have a colorable claim,

he may pursue it on petition for habeas corpus and a properly developed

evidentiary record.

      6. Because we have identified only one error, there is nothing to

accumulate. See Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002). We see

no basis to conclude cumulative error deprived Abell of a fair trial.

      AFFIRMED.




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