NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 24 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-30005
Plaintiff - Appellee, D.C. No. 2:10-cr-00148-BLW-1
v.
MEMORANDUM*
EDGAR J. STEELE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted July 8, 2013
Portland, Oregon
Before: PREGERSON, MURGUIA, and CHRISTEN, Circuit Judges.
Edgar J. Steele appeals his jury-trial conviction for use of interstate
commerce facilities in the commission of murder for hire, in violation of 18 U.S.C.
§ 1958 (Count One); for aiding and abetting the use of explosive materials to
commit a federal felony, in violation of 18 U.S.C. § 844(h) (Count Two); and for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
possession of a destructive device in relation to a crime of violence, in violation of
18 U.S.C. § 924(c)(1)(B)(ii) (Count Three).1 We have jurisdiction under 28 U.S.C.
§ 1291 and affirm the convictions on these counts.
Steele argues that the district court erred in its jury instructions, but concedes
that he did not raise his claims before the district court. We review for plain error
claims about jury instructions that were not raised in the district court. See United
States v. Anguiano, 873 F.2d 1314, 1319 (9th Cir. 1989). “Plain error will be
found only if the error was highly prejudicial and there was a high probability that
the error materially affected the verdict.” Id. (internal quotation marks omitted).
We will only reverse a criminal conviction on the basis of plain error “when it
appears necessary to prevent a miscarriage of justice or to preserve the integrity
and reputation of the judicial process.” Id. (internal quotation marks omitted).
Improper jury instructions only rarely justify a finding of plain error. Id.
Steele argues that a specific unanimity instruction was required regarding
the factual basis for interstate travel in Count One (and thus derivatively in Counts
Two and Three). We disagree. The government presented evidence of three
separate incidences of interstate travel that Steele caused with intent that a murder
1
In an opinion filed concurrently with this disposition we address
Steele’s claim that the district court erred by denying his motion for a new trial
based on ineffective assistance of trial counsel.
2
be committed. The jury was not required to agree unanimously on which incident
of interstate travel Steele caused. See United States v. Renteria, 557 F.3d 1003,
1008 (9th Cir. 2009) (rejecting argument that unanimity instruction was needed on
interstate commerce because it is a single, non-duplicitous, element of the offense).
As the Supreme Court explained in Schad v. Arizona, “‘[p]lainly there is no
general requirement that the jury reach agreement on the preliminary factual issues
which underlie the verdict.’” 501 U.S. 624, 632 (1991) (quoting McKoy v. North
Carolina, 494 U.S. 433, 449 (1990) (Blackmun, J., concurring)). Because the jury
was not required to unanimously agree as to which specific act or action satisfied
the interstate travel element, “there was no error in the instruction, plain or
otherwise.” United States v. Hofus, 598 F.3d 1171, 1177 (9th Cir. 2010).
Steele’s argument that the district court committed plain error by failing to
specify within its jury instructions which bomb constituted the “explosive
materials” in Count Two is also unconvincing. In its closing arguments, the
government clearly identified that Count Two concerned the bomb on Steele’s
Cadillac. This identification of the specific explosive materials was not
contradicted by the court’s jury instructions and there is no evidence of jury
confusion.
AFFIRMED.
3