FILED
NOT FOR PUBLICATION MAR 27 2012
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. 11-50078
Plaintiff - Appellee, D.C. No. 2:06-cr-00864-MRH-1
v.
MEMORANDUM *
TERRY LEE STEWARD,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Michael R. Hogan, District Judge, Presiding
Argued and Submitted March 7, 2012
Pasadena, California
Before: FARRIS, CLIFTON, and IKUTA, Circuit Judges.
Steward was convicted of four counts of threatening a federal judge, in
violation of 18 U.S.C. § 115(a)(1)(B). Steward claims that his statements did not
constitute a true threat; that the district court should have disqualified his counsel
and substituted new counsel; that the district court erred in admitting unduly
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
prejudicial evidence; that the district court failed to make the proper findings at
sentencing to require psychotropic medication as a condition of supervised release;
that the supervised release condition that Steward be placed in a residential reentry
center was not reasonably related to the 18 U.S.C. § 3553 factors; and that
Steward’s term of supervised release should be reduced for excess time served in
custody. We affirm.
Because Steward moved for acquittal at trial, we review de novo the
sufficiency of the evidence. United States v. Stewart, 420 F.3d 1007, 1014 (9th
Cir. 2005). If there is sufficient evidence to support the verdict, we review de novo
whether the communication at issue constitutes a “true threat.” Id. at 1015;
Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life Activists,
290 F.3d 1058, 1070 (9th Cir. 2002). The constitutionally required true threat
analysis calls for a subjective test, which requires proof “that the speaker
subjectively intended the speech as a threat.” Stewart, 420 F.3d at 1017 (internal
citation and quotations omitted); see United States v. Bagdasarian, 652 F.3d 1113,
1117 (9th Cir. 2011) (subjective test “must be read into all threat statutes that
criminalize pure speech”). The evidence was sufficient to establish the elements of
the statutory violation, see Stewart, 420 F.3d at 1015, and to establish that
Steward’s statements constitute a “true threat.”
2
We review for abuse of discretion a district court’s refusal to substitute
counsel. United States v. Prime, 431 F.3d 1147, 1154 (9th Cir. 2004). Steward
argues that the district court should have substituted new counsel because of his
counsel’s relationships with the judges threatened, and that conflict with his
counsel may have interfered with representation. Nothing in the record indicates
“a complete breakdown in communication and a consequent inability to present a
defense.” Id. (internal citation omitted). There was no abuse of discretion. See
Casey v. Albertson’s, Inc., 362 F.3d 1254, 1257 (9th Cir. 2004).
We review for “abuse of discretion a district court’s admission of evidence”
and its “decision that the probative value of evidence exceeds its potential for
unfair prejudice.” United States v. Curtin, 489 F.3d 935, 943 (9th Cir. 2007)
(internal citation omitted). We review for plain error, however, when specific
objection to the evidence was not made at trial. United States v. Graf, 610 F.3d
1148, 1164 (9th Cir. 2010). “Alleged threats should be considered in light of their
entire factual context, including the surrounding events and reaction of the
listeners.” United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990),
overruled in part on other grounds by United States v. Hanna, 293 F.3d 1080 (9th
Cir. 2002). That context here includes images on the website visited by one of the
3
judges and the sword in one of those images. The district court did not abuse its
discretion as to the sword or commit plain error as to the webpages.
We review a district court’s decision to impose a condition of supervised
release for abuse of discretion. United States v. Daniels, 541 F.3d 915, 924 (9th
Cir. 2008). We review de novo whether a district court’s statement of reasons for
the sentence it imposed is adequate. United States v. Miqbel, 444 F.3d 1173, 1176
(9th Cir. 2006). The district court imposed the requirement that Steward take
psychotropic medication as a condition of supervised release based on a sufficient,
medically-informed record. United States v. Williams, 356 F.3d 1045, 1056 (9th
Cir. 2004). The district court failed at sentencing to make the required findings for
a condition that implicates such a particularly significant liberty interest, United
States v. Stoterau, 524 F.3d 988, 1005 (9th Cir. 2008), but it cured this error with
subsequent written findings. See Fed. R. Crim. P. 35(a). Neither the medication
condition nor the related requirement that Steward be placed in a residential reentry
center constitutes abuse of discretion.
We review de novo the district court’s application of the supervised release
statute. United States v. Anderson, 519 F.3d 1021, 1022 (9th Cir. 2008). “The
term of supervised release commences on the day the person is released from
imprisonment . . . [and] does not run during any period in which the person is
4
imprisoned.” 18 U.S.C. § 3624(e). The terms of imprisonment and of supervised
release are not interchangeable. United States v. Johnson, 529 U.S. 53, 58-59
(2000). Even if a defendant has served longer than his lawful sentence, the term of
supervised release does not begin until his release. Id. at 58.
AFFIRMED.
5