                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 10 2020
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.   18-10489

                Plaintiff-Appellee,             D.C. No.
                                                3:18-cr-08131-SPL-1
 v.

JERROD HUNTER SCHMIDT,                          MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Arizona
                   Steven Paul Logan, District Judge, Presiding

                           Submitted February 6, 2020**
                               Phoenix, Arizona

Before: O'SCANNLAIN, GRABER, and HURWITZ, Circuit Judges.

      Jerrod Hunter Schmidt was convicted of transmitting threats against the

President, in violation of 18 U.S.C. § 871(a), and transmitting threatening

communications through interstate commerce, in violation of 18 U.S.C. § 875(c).

We have jurisdiction under 28 U.S.C. § 1291 and affirm.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      1. The district court did not abuse its discretion in refusing to give a

diminished-capacity instruction.    Such an instruction is not required in cases

involving threatening communications if the evidence shows only “the inherent

irrationality of the threats themselves.” United States v. Christian, 749 F.3d 806,

815 (9th Cir. 2014). Schmidt’s threats were arguably irrational, but no more so than

those in Christian. See id. at 808–10. The district court did not abuse its discretion

in denying the instruction because all “a jury could reasonably infer from this

evidence [is] that [Schmidt] suffered from some form of mental illness.”1 Id. at 815.

      2.   Schmidt contends that the district court plainly erred by allowing

government witnesses to opine on the seriousness of the threats. But the district

court did not describe the witnesses as experts, and the government never “prompted

the jurors to defer to the expert opinions of its witnesses.” United States v. Hanna,

293 F.3d 1080, 1087 (9th Cir. 2002). Rather, the government elicited this testimony

“merely to explain why the federal agents began investigating” Schmidt. United

States v. Wahchumwah, 710 F.3d 862, 871 (9th Cir. 2013). “It is not improper for

the government to elicit background information from a witness.” United States v.



1
       Because we find insufficient evidence to support Schmidt’s proposed
instruction, we need not decide whether Elonis v. United States, 575 U.S. 723
(2015), affects the continuing validity of our cases holding that diminished capacity
is not a defense to § 871(a) charges because it is a general-intent crime. See, e.g.,
United States v. Twine, 853 F.2d 676, 679–81 (9th Cir. 1988); Roy v. United States,
416 F.2d 874, 877–78 (9th Cir. 1969).

                                          2
Croft, 124 F.3d 1109, 1120 (9th Cir. 1997). Moreover, the challenged testimony did

not deny Schmidt’s right “to a fair trial.” United States v. Houser, 804 F.2d 565,

570 (9th Cir. 1986).

      AFFIRMED.




                                        3
