FILED
NOT FOR PUBLICATION OCT 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50128
Plaintiff - Appellee, D.C. No. 2:11-cr-00385-SVW-1
v.
MEMORANDUM*
ROBERT COOK,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted October 7, 2013
Pasadena, California
Before: REINHARDT, KLEINFELD, and CHRISTEN, Circuit Judges.
Robert Cook appeals his conviction of two counts of making interstate
threats in violation of 18 U.S.C. § 875(c) and one count of interstate stalking in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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violation of 18 U.S.C. § 2261A(2)(A). We have jurisdiction under 28 U.S.C. §
1291 and affirm in part and reverse in part.
1.We affirm Cook’s convictions on Counts 1 and 2 for making interstate threats in
violation of 18 U.S.C. § 875(c). First, there was sufficient evidence to support the
jury’s verdict on those counts. The text of the phone messages (“it’s going to get
bloody”), their first-person nature (“You’re going to pay for the pain you’re
putting me through.”), their menacing tone, and their context (Cook’s repeated
calls and his probation officer telling him to stop) were sufficient for a finding that
both threats were “true,” that is, that Cook intended them to be perceived as
threats. See United States v. Bagdasarian, 652 F.3d 1113, 1122–23 (9th Cir.
2011).1 The same evidence also supports a finding that both threats were “true”
under the objective standard.2 See id. at 1119–22. Second, any mistake by the
district court in articulating the elements of a threat when it ruled on Cook’s Rule
29 motion is irrelevant to the question of whether there was sufficient evidence to
1
This Court has not decided whether the “any reasonable juror” sufficiency
of the evidence standard or de novo review should apply to a determination that a
threat is “true.” Bagdasarian, 652 F.3d at 1119 n.17. We need not decide this
question, as the outcome is the same under either standard.
2
The jury was instructed that both the objective and subjective standards
must be proven beyond a reasonable doubt in order to find “true threats.”
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support a conviction. Third, any misconduct by the prosecutor in questioning
Patricia Griffith during the jury trial was without prejudice given the admissible
evidence supporting the verdict and the trial court’s comprehensive curative
instruction. See United States v. Aichele, 941 F.2d 761, 765 (9th Cir. 1991).
2. We reverse the conviction on Count 3 (stalking) because the district court failed,
after a bench trial on that count, to find the elements of the crime charged. Count 3
charged Cook with violating 18 U.S.C. § 2261A(2)(A), which requires “intent to
kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or
intimidate, or cause substantial emotional distress.” Orally, the district court found
that Cook intended to place his victim “in reasonable fear of death or serious injury
to herself or her spouse or intimate partner.” This is § 2261A(2)(B), not (A). In the
written judgment, the court found that Cook intended to “harass [the victim], or to
place [the victim] in reasonable fear of the death of or serious injury to herself.”
This is § 2261A(2)(A) or (B). The “or” in the written findings prohibits us from
finding that the district court found (A) rather than (A) or (B), and therefore we
reverse the conviction.
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3. Finally, we note that the government acted improperly when it described in great
detail the factual underpinnings of Cook’s prior conviction in its brief under the
deceptive heading “The Offense Conduct.” Details concerning Cook’s prior
criminal acts appear to have been included in the government’s brief to
inappropriately influence our resolution of the issues on appeal.
AFFIRMED IN PART AND REVERSED IN PART.
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