                                                                              FILED
                            NOT FOR PUBLICATION                                MAR 27 2012

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                          No. 11-50078

              Plaintiff - Appellee,                D.C. No. 2:06-cr-00864-MRH-1

  v.
                                                   MEMORANDUM *
TERRY LEE STEWARD,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                    Michael R. Hogan, District Judge, Presiding

                        Argued and Submitted March 7, 2012
                               Pasadena, California

Before: FARRIS, CLIFTON, and IKUTA, Circuit Judges.

       Steward was convicted of four counts of threatening a federal judge, in

violation of 18 U.S.C. § 115(a)(1)(B). Steward claims that his statements did not

constitute a true threat; that the district court should have disqualified his counsel

and substituted new counsel; that the district court erred in admitting unduly



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
prejudicial evidence; that the district court failed to make the proper findings at

sentencing to require psychotropic medication as a condition of supervised release;

that the supervised release condition that Steward be placed in a residential reentry

center was not reasonably related to the 18 U.S.C. § 3553 factors; and that

Steward’s term of supervised release should be reduced for excess time served in

custody. We affirm.

      Because Steward moved for acquittal at trial, we review de novo the

sufficiency of the evidence. United States v. Stewart, 420 F.3d 1007, 1014 (9th

Cir. 2005). If there is sufficient evidence to support the verdict, we review de novo

whether the communication at issue constitutes a “true threat.” Id. at 1015;

Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life Activists,

290 F.3d 1058, 1070 (9th Cir. 2002). The constitutionally required true threat

analysis calls for a subjective test, which requires proof “that the speaker

subjectively intended the speech as a threat.” Stewart, 420 F.3d at 1017 (internal

citation and quotations omitted); see United States v. Bagdasarian, 652 F.3d 1113,

1117 (9th Cir. 2011) (subjective test “must be read into all threat statutes that

criminalize pure speech”). The evidence was sufficient to establish the elements of

the statutory violation, see Stewart, 420 F.3d at 1015, and to establish that

Steward’s statements constitute a “true threat.”


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      We review for abuse of discretion a district court’s refusal to substitute

counsel. United States v. Prime, 431 F.3d 1147, 1154 (9th Cir. 2004). Steward

argues that the district court should have substituted new counsel because of his

counsel’s relationships with the judges threatened, and that conflict with his

counsel may have interfered with representation. Nothing in the record indicates

“a complete breakdown in communication and a consequent inability to present a

defense.” Id. (internal citation omitted). There was no abuse of discretion. See

Casey v. Albertson’s, Inc., 362 F.3d 1254, 1257 (9th Cir. 2004).

      We review for “abuse of discretion a district court’s admission of evidence”

and its “decision that the probative value of evidence exceeds its potential for

unfair prejudice.” United States v. Curtin, 489 F.3d 935, 943 (9th Cir. 2007)

(internal citation omitted). We review for plain error, however, when specific

objection to the evidence was not made at trial. United States v. Graf, 610 F.3d

1148, 1164 (9th Cir. 2010). “Alleged threats should be considered in light of their

entire factual context, including the surrounding events and reaction of the

listeners.” United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990),

overruled in part on other grounds by United States v. Hanna, 293 F.3d 1080 (9th

Cir. 2002). That context here includes images on the website visited by one of the




                                           3
judges and the sword in one of those images. The district court did not abuse its

discretion as to the sword or commit plain error as to the webpages.

      We review a district court’s decision to impose a condition of supervised

release for abuse of discretion. United States v. Daniels, 541 F.3d 915, 924 (9th

Cir. 2008). We review de novo whether a district court’s statement of reasons for

the sentence it imposed is adequate. United States v. Miqbel, 444 F.3d 1173, 1176

(9th Cir. 2006). The district court imposed the requirement that Steward take

psychotropic medication as a condition of supervised release based on a sufficient,

medically-informed record. United States v. Williams, 356 F.3d 1045, 1056 (9th

Cir. 2004). The district court failed at sentencing to make the required findings for

a condition that implicates such a particularly significant liberty interest, United

States v. Stoterau, 524 F.3d 988, 1005 (9th Cir. 2008), but it cured this error with

subsequent written findings. See Fed. R. Crim. P. 35(a). Neither the medication

condition nor the related requirement that Steward be placed in a residential reentry

center constitutes abuse of discretion.

      We review de novo the district court’s application of the supervised release

statute. United States v. Anderson, 519 F.3d 1021, 1022 (9th Cir. 2008). “The

term of supervised release commences on the day the person is released from

imprisonment . . . [and] does not run during any period in which the person is


                                           4
imprisoned.” 18 U.S.C. § 3624(e). The terms of imprisonment and of supervised

release are not interchangeable. United States v. Johnson, 529 U.S. 53, 58-59

(2000). Even if a defendant has served longer than his lawful sentence, the term of

supervised release does not begin until his release. Id. at 58.

      AFFIRMED.




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