FILED
NOT FOR PUBLICATION
JUN 21 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10486
Plaintiff - Appellee, D.C. No. 1:15-cr-00088-LJO-
SKO-1
v.
BARRY LEE BOWSER, Jr., MEMORANDUM*
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 June 16, 2016
San Francisco, California
Before: TALLMAN, CLIFTON, and IKUTA, Circuit Judges.
Barry Lee Bowser, Jr., appeals his conviction after a jury trial for aiming a
laser pointer at an aircraft in violation of 18 U.S.C. § 39A. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Any error the district court committed in failing to make an explicit
threshold determination endorsing Dr. McLin’s credentials to render a reliable
opinion is harmless. See Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457,
463-64 (9th Cir. 2014) (en banc). The submissions to the court, Dr. McLin’s
testimony, and voir dire by defense counsel at trial demonstrate that Dr. McLin
was qualified based on his knowledge and experience to testify about laser strikes
on aircraft and the effect of those strikes on vision. See United States v. Hankey,
203 F.3d 1160, 1169 (9th Cir. 2000). Though the district court stated that it would
make question-by-question rulings as to Dr. McLin’s testimony, Bowser did not
object to Dr. McLin’s testimony that it is necessary to aim a laser at an aircraft in
order to hit it. Even if this testimony exceeded the scope of Dr. McLin’s expertise,
its admission was not plain error, given the overwhelming evidence of Bowser’s
guilt. See Johnson v. United States, 520 U.S. 461, 470 (1997). Further, Dr.
McLin’s testimony did not violate Federal Rule of Evidence 704 because he did
not “draw the ultimate inference or conclusion for the jury and the ultimate
inference or conclusion d[id] not necessarily follow from [his] testimony.” United
States v. Morales, 108 F.3d 1031, 1038 (9th Cir. 1997). It remained for the jury to
decide whether Bowser acted intentionally in twice pointing the laser beam at the
sheriff’s helicopter. See id. at 1037-38.
2
2. Bowser has not shown the government failed to disclose exculpatory
material under Brady or Henthorn. The federal government is not obligated under
Federal Rule of Criminal Procedure 16 or Henthorn to review state law
enforcement files not within its possession or control. United States v. Dominguez-
Villa, 954 F.2d 562, 565-66 (9th Cir. 1992). And Bowser has not met his burden
of showing that the government withheld materially exculpatory evidence under
Brady. See United States v. Mincoff, 574 F.3d 1186, 1200 (9th Cir. 2009).
Further, none of the government’s allegedly late disclosures violated Bowser’s due
process rights because the documents were produced as soon as they were in
federal control, Bowser had the documents in sufficient time to use them, and
Bowser has not shown bad faith on the part of the prosecutor. See United States v.
Houston, 648 F.3d 806, 813 (9th Cir. 2011); United States v. Fort, 472 F.3d 1106,
1112 (9th Cir. 2007); United States v. Dupuy, 760 F.2d 1492, 1497 (9th Cir. 1985).
3. Because we find “the [alleged] errors, even cumulatively, more probably
than not did not affect the verdict,” we also reject Bowser’s cumulative error
argument. United States v. Hermanek, 289 F.3d 1076, 1102 (9th Cir. 2002).
4. The district court properly applied the obstruction of justice enhancement
because Bowser lied about, and then destroyed, material evidence – the laser
pointer device itself. See U.S.S.G. § 3C1.1.
3
AFFIRMED.
4