                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 12 2010

                                                                        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. 08-10386

             Plaintiff-Appellee,                 D.C. No. 1:07-cr-00194-LJO

  v.
                                                 MEMORANDUM *
BRADLEY SMITH,

             Defendant-Appellant.



                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                      Argued and Submitted October 8, 2009
                            San Francisco, California

Before: SCHROEDER and BERZON, Circuit Judges, and SHADUR, ** Senior
District Judge.


       Bradley Smith (“Smith”) appeals his criminal conviction and sentence on

two charges: (1) interfering with housing rights in violation of 42 U.S.C. § 3631(a)


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Milton I. Shadur, Senior United States District Judge
for the Northern District of Illinois, sitting by designation.
and (2) making a false statement in violation of 18 U.S.C. § 1001(a)(2).1 We

affirm.

                                    Background

      Smith, a 22-year-old white male, and Alfred Henderson (“Henderson”), a

52-year-old African American, were active participants in the citizens’ band

(“CB”) radio community in Modesto, California. Interactions between Smith and

Henderson became hostile as Smith began to use offensive language and racial

slurs directed at Henderson. Smith also threatened to hang Henderson in a tree,

throw a “Molotov cocktail” at his house and rape and assault Henderson’s wife. In

the fall of 2005 Henderson and Smith arranged to meet in person at a gas station,

where Henderson asked Smith to leave him alone and to stop making threats

toward him. Smith agreed to stop and did so for about a week, but the threats and

offensive language then began again.

      On October 28, 2005 Smith and Henderson had an exchange over CB radio

during which Smith told Henderson that he and his friends were going to come to

Henderson’s house to burn a cross, hang Henderson in a tree and rape his wife.

Tired of being harassed, Henderson told Smith, “Come on over, if that’s what you



      1
             Further citations to Title 18 provisions will take the form “Section --,”
omitting the prefatory “18 U.S.C.”

                                          2
want to do.” Henderson then called the police to inform them that Smith was

coming over to hurt him and to burn a cross on his lawn. True to the first part of

his threat, Smith arrived at Henderson’s home with six or seven other people.

Henderson met Smith in the middle of the street, and Smith began to abuse

Henderson orally. Police arrived shortly thereafter--before the situation could

escalate further. Those officers made no arrests at the time and let everyone leave.

      FBI agent Kenneth Tam (“Tam”) began to investigate those incidents and

interviewed Smith several times. Each time Smith was interviewed, he was

informed of his rights and he confirmed that he was speaking voluntarily. After

hearing that other CB users had testified before a federal grand jury in the

investigation, Smith asked Tam if he could testify as well.

      During a meeting with Tam and several government attorneys the night

before he was scheduled to testify, Smith asked whether the government would

supply him with an attorney. One of the government attorneys told Smith that he

had no right to an attorney because he had not yet been charged with any crime.2

Smith continued to speak with the attorneys and agreed to testify before the grand

      2
             In fact, the Criminal Justice Act Plan for the Eastern District of
California does provide for legal representation of investigative targets in some
circumstances. But that subject need not be explored further, for Smith’s
contentions in that respect do not entitle him to relief even if the response given
him was in error.

                                           3
jury the next day voluntarily, without being subpoenaed. At the beginning of his

testimony, Smith confirmed that he wanted to testify despite knowing that he could

not have an attorney appointed to represent him. Smith was also informed of his

privilege against self-incrimination under the Fifth Amendment and invoked it on

two occasions before the grand jury.

      Smith was later indicted, tried and convicted. During his trial Smith

proposed to call Christopher Lindley (“Lindley”) as an opinion witness to “testify

as to the unique role played by swagger, insults and aggressive statements in the

CB universe, and distinguish between bluffs and an expression of actual intent to

do harm” and “to testify that in the context of the CB radio culture, they are not

serious threats, that operators typically talk that way because that’s all they’ve

got.” Smith sought to establish Lindley as an expert based on his experience

listening to CB radio for over twenty years.

      After an evidentiary hearing during which Lindley testified outside the

presence of the jury, the district court excluded Lindley as an opinion witness

under Fed. R. Evid. 702. It concluded that Lindley did not have the specialized

knowledge required for his proposed testimony and that the trier of fact would not

be assisted by that testimony. Moreover, said the court, Lindley did not have the

appropriate qualifications or training on the psychological aspects of listening to


                                           4
CB radio, nor would his testimony be based on sufficient facts or data such that it

could be considered reliable.

      After Smith was convicted by the jury, the pretrial services officer filed a

Presentence Investigation Report (“PSR”) that calculated Smith’s total offense

level for Counts One and Two as 22. Smith’s base offense level for Count One

was found to be 12, to which six levels were added pursuant to Sentencing

Guideline (hereafter “Guideline”) § 2A6.1(b)(1) (intent to carry out threats) and

two levels were added as recommended under Guideline § 2A6.1(B)(2) because

the offense involved more than two threats. Another two levels were added

pursuant to Guideline § 3B1.1(a) because Smith had a leadership role in the

offense. Finally, the PSR concluded the district court should determine whether an

enhancement for hate crime motivation was applicable under Guideline § 3B1.1(a).

Smith’s base offense level for Count Two was 6, and the PSR found that no

adjustments or enhancements were applicable. Hence the final combined offense

level was determined to be 22, and the PSR calculated the Guideline sentencing

range as calling for 51 to 63 months’ imprisonment.

      At sentencing the district court adopted the recommendations of the PSR and

also applied a three-level enhancement for hate crime motivation. As a result the

district court held that the applicable offense level was 25, resulting in an advisory


                                           5
Guideline range of 70 to 87 months’ imprisonment. After considering the Section

3553(a) factors, the district court imposed a sentence of 78 months’ imprisonment,

to be served concurrently on Counts One and Two.

                             Fifth Amendment Issues

      We review de novo the district court’s ruling on a claim of Fifth Amendment

privilege (United States v. Anderson, 79 F.3d 1522, 1525 (9th Cir. 1996)).

Violations of that privilege are reviewed for harmless error (United States v. Lopez,

500 F.3d 840, 844 (9th Cir. 2007)). Constitutional errors are harmless if “it

appears beyond a reasonable doubt that the error complained of did not contribute

to the verdict obtained” (Neder v. United States, 527 U.S. 1, 15 (1999), quoting

Chapman v. California, 386 U.S. 18, 24 (1967)).

      Smith argues that the district court erred in admitting statements he made to

the grand jury because those statements were made after he was falsely advised

that he could not have counsel appointed for him. That misrepresentation, he

claims, improperly influenced his decision to testify before the grand jury, so that

his statements were not truly voluntary.

      While the Fifth Amendment does prohibit compelled self-incrimination, it

“does not preclude a witness from testifying voluntarily in matters which may

incriminate him” (United States v. Washington, 431 U.S. 181, 186-87 (1977),


                                           6
quoting United States v. Monia, 317 U.S. 424, 427 (1943)). As Beaty v. Schriro,

509 F.3d 994, 999 (9th Cir. 2007), quoting Hutto v. Ross, 429 U.S. 28, 30 (1976)

(brackets inserted), teaches:

      In other words, a statement may be considered involuntary if it is
      “extracted by any sorts of threats or violence, [or] obtained by any
      direct or implied promises, however slight, [or] by the exertion of any
      improper influence.”

      Smith argues that he was under significant pressure to talk and that his

statements were not voluntary because he was a target of the investigation and

because of the “moderately coercive environments of the FBI office and grand jury

room.” But testifying before a grand jury does not of itself create a presumption

that such testimony is coerced, even “if in that setting a witness is more likely to

tell the truth than in less solemn surroundings” (Washington, 431 U.S. at 188).

Moreover, whether a defendant is a target of an investigation plays little if any role

in a Fifth Amendment analysis (see id. at 189).

      Smith also argues that the government failed to obtain an intelligent and

informed waiver of his Fifth Amendment rights after he asked about the

availability of appointed counsel. Although he was admittedly not in custody at

the time--the traditional setting that triggers the need for such waiver--he claims

the government is required to demonstrate the existence of an unequivocal and



                                           7
intelligent waiver under Smith v. United States, 337 U.S. 137 (1949) and Emspak v.

United States, 349 U.S. 190 (1955).

      Those cases, however, offer no support for Smith’s contention that the

government’s failure to advise him accurately about his access to counsel

somehow rendered his statements involuntary or caused his waiver of his Fifth

Amendment rights to be insufficiently informed. Nothing in either case supports

his claim that by simply asking about the availability of counsel he invoked his

Fifth Amendment rights and triggered the need for an informed and intelligent

waiver. There can be no doubt from the record that Smith was not compelled to

speak to the FBI before his grand jury testimony or to testify before the grand jury

itself. Smith himself initiated both his initial interview with Tam and his grand

jury testimony. He knew that he did not have to testify before the grand jury and

that, if he did, he did not have to incriminate himself.

      In any event, Smith’s grand jury testimony that was read to the jury at trial

(most of his grand jury testimony was redacted and not placed before the trial jury)

was merely cumulative of other evidence presented against him at trial. And as the

government points out, there was consistent and overwhelming testimony from

other trial witnesses as to Smith’s harassment of Henderson over the CB radio and

the events of October 28. That testimony was in most cases significantly more


                                           8
detailed and extensive than the statements made by Smith to the grand jury,

rendering any error in admitting his statements harmless (see Padilla v. Terhune,

309 F.3d 614, 622 (9th Cir. 2002)). We therefore uphold the jury’s verdict in that

respect.

                         Exclusion of Opinion Testimony

      We review a district court’s decision to exclude opinion testimony for abuse

of discretion. Such a ruling “will be reversed only if ‘manifestly erroneous’” such

that the “nonconstitutional error more likely than not affected the verdict” (United

States v. Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000)).

      Smith argues that the district court abused its discretion in excluding

Lindley’s proposed testimony because its ruling was based on the erroneous view

that the testimony required him to possess scientific or technical knowledge. But

as the district court recognized, Smith sought to admit Lindley’s proposed opinion

on the basis of specialized knowledge rather than scientific or technical knowledge.

On that score Lindley possessed no specialized knowledge or training other than

whatever he might have gleaned from his years as a member of the CB radio

community himself (and he had almost no knowledge of the local CB community).

In any event, nothing in his experience enabled him to testify as to the intent

behind statements made by other CB users.


                                          9
      Smith also argues that the district court erred in finding that Lindley’s

proffered testimony would not assist the jury. But what Lindley proposed to testify

about was the seriousness of the threats made over CB radio--not about the

meaning of obscure language or uncommon activities. As the district court noted,

there is no reason to believe that a jury would need help in determining the plain

meaning of such language.

      Finally, Smith contends that the district court abused its discretion in

excluding Lindley’s testimony on the basis that it could not be considered reliable.

But as we said in Mukhtar v. Cal. State Univ., 299 F.3d 1053, 1064 (9th Cir. 2002)

(emphasis in original):

      A trial court not only has broad latitude in determining whether an
      expert’s testimony is reliable, but also in deciding how to determine
      the testimony’s reliability.

      According to Smith, because the reliability of Lindley’s testimony depended

on his own knowledge and experience, rather than a particular methodology or

theory, the traditional Daubert or Kumho factors were not applicable to that

analysis. But the district court based its ruling not on the types of principles or

methods employed by Lindley, but rather by concluding that there were no

principles or methods that Lindley proposed to apply. Instead, said the court,

Lindley’s opinion “is simply all subjective listening and analysis and conclusions.”


                                           10
We find that the district court did not abuse its discretion in excluding Lindley’s

testimony.

                             Sentencing Considerations

      We review a “district court’s interpretations of the Sentencing Guidelines de

novo, the district court’s application of the Guidelines to the facts for abuse of

discretion, and the district court’s factual findings for clear error” (United States v.

Garro, 517 F.3d 1163, 1167 (9th Cir. 2008)). Procedural errors, such as the failure

to consider the Section 3553(a) factors properly, are reviewed for abuse of

discretion (United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008)).

      Smith first contends that the district court clearly erred when it added a six-

level enhancement under Guideline § 2A6.1 because there was insufficient

evidence to support its finding that the offense involved conduct evidencing an

intent to carry out his threats against Henderson. According to Smith, the failure

of the district court to specify which threats controlled the application of the

sentencing enhancement is itself reversible error.

      But Smith offers no authority that requires the district court to particularize

which threats formed the basis for its application of the sentencing enhancement.

Unless the evidence could not show that Smith intended to carry out any of those

threats, there is no reason why the sentencing enhancement should not be upheld.


                                           11
      In that respect Smith argues that “there was no evidence that [he] had ever

taken any steps to carry out threats of violence against Mr. Henderson at any time.”

That is simply not the case, especially in light of the standard that Smith himself

articulated for evaluating the scope and weight of such evidence. According to

Application Note 1 to Guideline § 2A6.1, the court, in determining whether the

offense involved conduct evidencing an intent to carry out the threat, “shall

consider both conduct that occurred prior to the offense and conduct that occurred

during the offense; however, conduct that occurred prior to the offense must be

substantially and directly connected to the offense, under the facts of the case taken

as a whole.” But as United States v. Hines, 26 F.3d 1469, 1474 (9th Cir. 1994)

explains, that inquiry is a flexible one:

      The purpose of the enhancement is clear: Defendants who act on their
      threats are more dangerous, and therefore, deserve more punishment. The
      critical issue should not be the timing of the conduct, but whether the
      conduct shows the defendant’s intent and likelihood to carry out the threats.

      As the district court found, Smith made repeated threats to Henderson over

the CB radio. On October 28, after Smith had made further threats of physical

violence - threats that specifically involved Smith going to Henderson’s home -

Smith and a half dozen or so of his friends drove to Henderson’s house and got out

of their cars to approach Henderson. It would have been myopic to consider that



                                            12
Smith gathered that assemblage simply to assist him in an oral exchange with

Henderson. Nor did Smith leave or retreat from Henderson’s home on his own - he

did so only because police officers arrived to break up the gathering.

      Unlike what Smith suggests, police need not have found weapons, racist

posters, insignia or literature at the scene for the enhancement to apply. In light of

the very short time between Smith’s threats to Henderson over the CB radio and

his actions of gathering his friends and driving to Henderson’s home, there was

adequate evidence for the district court to find that Smith’s conduct evidenced his

intent to carry out such threats.

      Second, Smith asserts that the district court erred in applying a three-level

hate crime motivation enhancement because the jury found that Henderson’s race

was a substantial motivating factor, rather than a primary motivation, for Smith’s

conduct. Smith argues that the hate crime motivation enhancement should not

have been applied because the jury’s finding was based on a lesser standard than is

required for the sentencing enhancement: What the background commentary to

Guideline § 3A1.1(a) says is that the enhancement applies when the factfinding

jury finds beyond a reasonable doubt that a victim’s race was a primary motivation

for the offense, while the jury instruction required only a finding that Henderson’s

race was a substantially motivating factor. In contrast, the government argues that


                                          13
the background commentary should not be given controlling weight because it

establishes a higher standard than, and is therefore inconsistent with, the

requirements of the Guideline language itself.

      As the government observes, the Guideline language was developed to carry

out Congress’s directive in Section 280003 of the Violent Crime Control and Law

Enforcement Act of 1994 (“Act § 280003”). That statute defines a “hate crime” as

“a crime in which the defendant intentionally selects a victim...because of [his or

her] race” and directs the Sentencing Commission to provide a sentencing

enhancement “for offenses that the finder of fact at trial determines beyond a

reasonable doubt are hate crimes” (Act § 280003, Pub. L. No. 103-322, 108 Stat.

1796 (1994)). Nothing in the statute specifies the degree to which the victim’s race

must be a motivating factor, and Guideline § 3A1.1(a) itself tracks the statutory

language directly. Nor does Smith challenge the jury instruction that addressed the

hate crime issue.

      As there is thus no textual basis for applying a different standard to the

sentencing than to the conviction for hate crimes, the commentary’s “primary

motivation” language cannot apply here (Stinson v. United States, 508 U.S. 36, 43

(1993); United States v. Lambert, 498 F.3d 963, 966 (9th Cir. 2007)). We

therefore conclude that the jury’s factual finding supported the imposition of the


                                          14
hate crimes sentencing enhancement.

      Third, Smith appeals the district court’s application of a two-level

enhancement under Guideline § 3B1.1(c) for his role in the offense. Guideline §

3B1.1(c) states that a two-level enhancement is appropriate “[i]f the defendant was

an organizer, leader, manager, or supervisor in any criminal activity other than

described in (a) or (b).”

      According to Smith the two-level enhancement was erroneous as a matter of

law because the district court did not believe that there was insufficient evidence of

other criminal participants, a necessary predicate to the enhancement for a

defendant’s role in an offense. Contrary to what Smith suggests, the district court

did not say that it believed there were no other participants in the offense. All that

can be gathered from its questions to the government during Smith’s sentencing

was that it was skeptical about whether all of the people that arrived at

Henderson’s home with Smith were the same individuals that had made racially

threatening statements over the CB radio. Even if not all of them were, the district

court could reasonably conclude that it was highly likely that at least one of them

was. Hence the evidence did support a finding that there was at least one other

participant involved in the offense.

      Smith finally argues that the district court erred in failing to explain its


                                           15
decision regarding his claim for a variance to avoid an unwarranted sentencing

disparity under Section 3553(a)(6). As Smith acknowledges, while a district court

must consider the factors listed in Section 3553(a) in arriving at a sentence, it

“need not tick off each of the § 3553(a) factors to show that it has considered

them” (Carty, 520 F.3d at 992). But Smith nevertheless contends that because he

raised an argument as to the assertedly unwarranted sentencing disparity that

would result from a sentence within the Guideline range, the district court erred by

not specifically explaining why it was rejected.

      During sentencing the district court said it had “received and reviewed the

Defendant’s sentencing memorandum and objections to the presentence report.”

Thus described, that review would have embraced Smith’s disparity argument

(Carty, 520 F.3d at 996). When the district court later discussed the Section

3553(a) factors, it noted what it considered to be the most relevant considerations.

And as we found in United States v. Becerril-Lopez, 541 F.3d 881, 894 (9th Cir.

2008), such an explanation is amply sufficient where the district court states on the

record that it considered the Section 3553(a) factors and speaks to what it views as

the most salient features. Moreover, as Becerril-Lopez, id. at 895 states, it would

be difficult to “imagin[e] why a sentence within the Guidelines range would create

a disparity, since it represents the sentence that most similarly situated defendants


                                          16
are likely to receive.”

                                    Conclusion

      In sum, we therefore affirm both Smith’s conviction and the sentence

imposed on him by the district court.

      AFFIRMED.




                                        17
