                                                                           FILED
                           NOT FOR PUBLICATION                             AUG 10 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10654

              Plaintiff - Appellee,              D.C. No. 4:11-cr-01751-CKJ-
                                                 CRP-1
  v.

TODD RUSSELL FRIES, AKA Todd                     MEMORANDUM*
Burns,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                      Argued and Submitted February 6, 2015
                            San Francisco, California

Before: TALLMAN and RAWLINSON, Circuit Judges, and GARBIS, Senior
District Judge.**

       Appellant Todd Russell Fries (Fries) challenges his convictions for unlawful

possession of unregistered destructive devices in violation of 26 U.S.C. § 5861(d).


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
Fries contends that a new trial is warranted because: the district court improperly

admitted an excerpt from a book seized from Fries’ residence that discussed

designs for destructive devices; the district court erred in precluding evidence and

cross-examination in support of Fries’ defense theory that he did not manufacture

the devices as contemplated by the Internal Revenue Code; the district court failed

to answer sufficiently the jury’s questions; the district court erred in instructing the

jury that the government was not required to prove that Fries knew that possession

of the unregistered devices was illegal; and the prosecution engaged in misconduct

during closing arguments. We affirm Fries’ convictions.1

      1.     The district court properly admitted the excerpt from the book seized

at Fries’ residence as relevant evidence after determining that the book’s

“potentially prejudicial effect did not substantially outweigh its probative value”

given its “connection to the crime with which [Fries] was charged.” United States

v. Curtin, 489 F.3d 935, 959 (9th Cir. 2007) (en banc).



      2.     The district court correctly excluded evidence and cross-examination

premised on Fries’ proffered defense theory from the Internal Revenue Code as

      1
        Fries also asserts that the district court erred in denying his motion to
suppress. However, we affirmed the district court’s denial of Fries’ motion in a
prior appeal. See United States v. Fries, 781 F.3d 1137, 1150-51 (9th Cir. 2015).

                                            2
irrelevant. See United States v. Boulware, 558 F.3d 971, 974 (9th Cir. 2009)

(articulating that “a trial court may preclude a defense theory where the evidence,

as described in the defendant’s offer of proof, is insufficient as a matter of law to

support the proffered defense”) (citation and internal quotation marks omitted); see

also United States v. Redlightning, 624 F.3d 1090, 1117 (9th Cir. 2010) (affirming

the district court’s exclusion of evidence in support of an irrelevant defense

theory). In any event, any error in excluding evidence in support of Fries’

proffered tax registration defense was “harmless beyond a reasonable doubt”

because the charges were premised only on Fries’ possession of unregistered

destructive devices. United States v. Rodriguez, 766 F.3d 970, 981 (9th Cir. 2014),

as amended.



      3.      The district court adequately responded to the jury’s questions

concerning the issuance of a search warrant and improvised explosive devices. See

United States v. Verduzco, 373 F.3d 1022, 1031-32 (9th Cir. 2004) (explaining that

response to a jury question is appropriate if it states the law accurately, does not

interfere with the jury’s factfinding process, and does not exceed the scope of the

question).




                                           3
      4.     The district court properly instructed the jury that the government was

not required to prove Fries knew possession of the unregistered destructive devices

was illegal. See United States v. Summers, 268 F.3d 683, 687-88 (9th Cir. 2001)

(holding that the government was not required to prove that the defendant knew a

firearm was illegal under 18 U.S.C. § 5861(d)).



      5.     The prosecutor’s comments during closing arguments and in rebuttal

were either supported by reasonable inferences from the evidence or did not

constitute reversible error. See United States v. Wei Lin, 738 F.3d 1082, 1085 n.2

(9th Cir. 2013) (explaining that “[p]rosecutors are permitted to argue reasonable

inferences based on the evidence, which is all the prosecutor did here”) (citation

and internal quotation marks omitted); see also United States v. Ruiz, 710 F.3d

1077, 1082 (9th Cir. 2013) (articulating that “[u]nder harmless error review, claims

of prosecutorial misconduct are viewed in the entire context of the trial, and

reversal is justified only if it appears more probable than not that prosecutorial

misconduct materially affected the fairness of the trial”) (citation and internal

quotation marks omitted).

      AFFIRMED.




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