FILED
NOT FOR PUBLICATION OCT 29 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10606
Plaintiff - Appellee, D.C. No. 3:10-cr-00305-VRW-1
v.
MEMORANDUM*
CHARLES REDDEN,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Vaughn R. Walker, District Judge, Presiding
Submitted October 19, 2012**
San Francisco, California
Before: BEA and WATFORD, Circuit Judges, and SESSIONS, District Judge.***
*
This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable William K. Sessions III, United States District Judge for the
District of Vermont, sitting by designation.
Charles Redden1 appeals from a judgment of conviction after a jury found
him guilty of three counts of Mailing Threatening Communications, in violation of
18 U.S.C. § 876(c), and one count of Tampering with a Witness, in violation of 18
U.S.C. § 1512(a)(2). We have jurisdiction under 28 U.S.C. §1291 and we affirm.
Redden raises one issue on appeal: whether the district court abused its
discretion by admitting at trial a redacted letter that did not form part of the
superseding indictment (“the Deputy Tustin letter”) over his Rule 403 and Rule
404(b) objections. See Fed. R. Evid. 403; 404(b).2
“Whoever knowingly . . . deposits [in any post office or authorized
depository for mail matter] or causes to be delivered [by the Postal Service] any
communication . . . addressed to any other person and containing any threat to . . .
injure the person of the addressee or of another,” has committed a violation of §
876(c). “Whoever uses . . . the threat of physical force against any person, . . . with
intent to . . . influence, delay, or prevent the testimony of any person in an official
proceeding,” has committed a violation of § 1512(a)(2). The evidence was
1
Redden was pro se during the trial, with advisory counsel from the
Federal Public Defender’s Office. He is represented by counsel on this appeal.
2
As Redden has not briefed any arguments with respect to his
conviction on the two counts of mailing threatening communications to Suzanne
Hicks (Counts One and Two), he has waived any issues with respect to these
counts. E.g. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[A]rguments
not raised by a party in its opening brief are deemed waived.”).
undisputed that Redden wrote to witness Darcy Garrigan threatening to torture and
kill her and her family if she “show[ed] up in the courtroom” for a hearing on his
probation officer’s petition alleging that Redden violated the terms of his
supervised release.
Admission of the Deputy Tustin letter and accompanying testimony, if
erroneous, was harmless, because “‘it is more probable than not that the error did
not materially affect the verdict.’” United States v. Gonzalez-Flores, 418 F.3d
1093, 1099 (9th Cir. 2005) (quoting United States v. Morales, 108 F.3d 1031, 1040
(9th Cir. 1997) (en banc)).
AFFIRMED.