FILED
NOT FOR PUBLICATION MAY 30 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10344
Plaintiff - Appellee, D.C. No. 4:10-cr-03559-DCB-
JCG-1
v.
JAMES DAVID ESSNER, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted May 17, 2012
San Francisco, California
Before: REINHARDT, CLIFTON, and N.R. SMITH, Circuit Judges.
James David Essner was convicted, after a bench trial, for threatening a
federal officer, and was sentenced to 57 months imprisonment. He appeals his
conviction and sentence. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Essner contends, first, that the district court improperly considered extrinsic
evidence at trial. The district judge listened to two voicemails, both properly
introduced into evidence, that Essner had left for pretrial services officer Michael
Himelic. He did so in order to compare what Essner sounded like when he
apologized, and was therefore likely lucid, with what he sounded like when he
made the threatening statement for which he had been criminally charged. The
district judge was permitted to make such a comparison, which did not require the
consideration of any extrinsic evidence.
The district court also did not abuse its discretion in admitting the expert
testimony of pharmacist Robert Wolff. Wolff had the requisite “knowledge, skill,
experience, training, [and] education” to testify as to the pharmacological effects of
morphine. Fed. R. Evid. 702; see United States v. Smith, 520 F.3d 1097, 1105 (9th
Cir. 2008). In any event, the district court’s statements in rendering its verdict
make clear that it is “more probable than not that” Wolff’s testimony “did not
materially affect the verdict.” United States v. Seschillie, 310 F.3d 1208, 1214 (9th
Cir. 2002) (internal quotation marks omitted).
Essner likewise cannot prevail on his challenge to the sufficiency of the
evidence to sustain his conviction. If the evidence is viewed “in the light most
favorable to the prosecution,” a “rational trier of fact could have found” that Essner
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had the specific intent to threaten when he left the voicemail. United States v.
Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en banc) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)). Most significant, Essner’s physician testified that he
had spoken with Essner twenty minutes before Essner left the voicemail, and that
he was lucid and rational despite the dose of morphine he had been administered
more than three hours earlier. Furthermore, given what Essner said in the
voicemail, and the reaction of those who heard it, there was sufficient evidence for
the trier of fact to conclude that “a reasonable person would foresee that the
statement would be interpreted by those to whom the maker communicate[d] the
statement as a serious expression of intent to harm or assault.” United States v.
Stewart, 420 F.3d 1007, 1016–17 (9th Cir. 2005) (internal quotation marks
omitted).
For similar reasons, the statement Essner made in the voicemail was not
protected by the First Amendment, but was instead a criminally proscribable “true
threat.” Essner’s statement manifested a subjective intent to threaten Himelic, and
his physician’s testimony established that he was lucid at the time he did so. See
Virginia v. Black, 538 U.S. 343, 359 (2003).
Finally, Essner’s 57-month sentence is not substantively unreasonable.
There was no impermissible double-counting in the calculation of Essner’s
3
Guideline range, as the three enhancements that Essner claims were duplicative
each “serve[d] a unique purpose under the Guidelines.” United States v. Syrax,
235 F.3d 422, 428 (9th Cir. 2000) (internal quotation marks omitted). The district
court also did not abuse its discretion in declining to give greater weight to
Essner’s significant heart-related health problems.
AFFIRMED.
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