United States v. Kathy Henderickson

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 24, 2023
• Docket: 22-30090
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 24 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-30090

Plaintiff-Appellee, D.C. No. 9:21-cr-00032-DWM-1 v.

KATHY ANN HENDERICKSON, AKA MEMORANDUM* Kathy Thorberg,

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding

Submitted August 22, 2023** Seattle, Washington

Before: HAWKINS, GRABER, and McKEOWN, Circuit Judges.

Defendant Kathy Ann Henderickson timely appeals her conviction for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). cyberstalking in violation of 18 U.S.C. § 2261A(2)(B).1 Reviewing for abuse of

discretion the district court’s admission of evidence under Federal Rules of

Evidence 403 and 404(b), United States v. Berckmann, 971 F.3d 999, 1001 (9th

Cir. 2020), we affirm.

1. The district court did not err by concluding that evidence of Defendant’s

prior acts was admissible under Rule 404(b). “Rule 404(b) permits evidence of

prior wrongs or acts to show proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.” United States v. Romero,

282 F.3d 683, 688 (9th Cir. 2002). “Such evidence ‘may be admitted if: (1) the

evidence tends to prove a material point; (2) the other act is not too remote in time;

(3) the evidence is sufficient to support a finding that defendant committed the

other act; and (4) (in certain cases) the act is similar to the offense charged.’” Id.

(quoting United States v. Chea, 231 F.3d 531, 534 (9th Cir. 2000)).

The court acted within its discretion when it concluded that the prior acts

evidence was material to knowledge and identity. “When the government’s theory

is one of knowledge—as here—this court has emphasized that the government

must prove a logical connection between the knowledge gained as a result of the

commission of the prior act and the knowledge at issue in the charged act.” United

1 The indictment and the parties’ briefing cite 18 U.S.C. § 2261A(2)(B), which applies to the charged conduct. The citations to 18 U.S.C. § 2261.F in the judgment and the district court docket are typographical errors.

2 States v. Mayans, 17 F.3d 1174, 1181–82 (9th Cir. 1994). Here, Defendant’s prior

convictions show that she knew how to use technology to impersonate another

individual and cover her tracks. See United States v. Ramos-Atondo, 732 F.3d

1113, 1123 (9th Cir. 2013) (concluding that a defendant’s prior conviction for

smuggling undocumented immigrants demonstrated knowledge of cross-border

smuggling procedures, which was evidence relevant to marijuana smuggling

charges). The prior acts also are similar enough to the charged conduct to

demonstrate a modus operandi of using the email addresses of one-time romantic

partners to send threatening messages to acquaintances. See id. (determining that

“the conviction was also relevant to show a modus operandi of smuggling

involving use of open panga boats that were to be unloaded on a dark beach in

early morning hours”).

The events underlying Defendant’s prior convictions occurred seven and

twelve years before her conduct in this case. But the court was within its

discretion to conclude that the prior acts were not too remote in time, given the

similarities between the conduct underlying those convictions and the conduct

charged in this case. See United States v. Johnson, 132 F.3d 1279, 1283 (9th Cir.

1997) (concluding that prior act evidence of events thirteen years earlier was

“sufficiently similar to the charged conduct to render it probative despite the

passage of time”).

3 2. The district court did not abuse its discretion by denying Defendant’s

Rule 403 challenge to the prior acts evidence. Rule 403 “permits district courts to

exclude relevant evidence if ‘its probative value is substantially outweighed by the

danger of unfair prejudice.’” Berckmann, 971 F.3d at 1004 (quoting Ramos-

Atondo, 732 F.3d at 1123). Although the prior acts evidence may have been

prejudicial to Defendant, that fact does not require its exclusion, particularly given

its probative value when the main defense was that someone else could be

responsible for the charged conduct. See United States v. Thornhill, 940 F.3d 1114,

1123 (9th Cir. 2019) (“[E]ven where evidence is highly prejudicial, it is not

necessarily unfairly prejudicial.” (citation and emphases omitted)). And even for

evidence with minimal probative value, including Defendant’s own statements

about her prior conviction for making a bomb threat, the district court properly

mitigated any potential prejudice by giving limiting instructions at the time of the

testimony and before the jury began deliberations. See Berckmann, 971 F.3d at

1004 (noting that the district court’s limiting instructions cabined prior acts

evidence such that it was not unfairly prejudicial).

AFFIRMED.