NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50003
Plaintiff-Appellee, D.C. No. 2:16-cr-00550-BRO-1 v.
MICHAEL ANDREW WALLENSTEIN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California Beverly Reid O'Connell, District Judge, Presiding
Argued and Submitted September 12, 2019 Pasadena, California
Before: RAWLINSON, IKUTA, and BENNETT, Circuit Judges.
Michael Wallenstein appeals his jury conviction for threatening to kill
Donald Trump and Hillary Clinton in violation of 18 U.S.C. § 879. Wallenstein
contends that the evidence presented at trial was insufficient to support his
conviction, various procedural errors require reversal, there was cumulative error,
and § 879 is unconstitutionally vague and overbroad. We have jurisdiction under
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 28 U.S.C. § 1291, and we affirm.
1. “In reviewing for sufficiency of the evidence, we assess the evidence in the
light most favorable to the prosecution, determining whether any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.” United States v. Stewart, 420 F.3d 1007, 1014–15 (9th Cir. 2005) (internal
quotation marks omitted) (quoting United States v. Orozco-Santillan, 903 F.2d
1262, 1264 (9th Cir. 1990)). And “[i]f sufficient evidence is found, we then
review de novo whether the facts as found by the jury establish the core
constitutional fact, in this case, a true threat.” Id. at 1015 (internal quotation marks
omitted) (quoting United States v. Hanna, 293 F.3d 1080, 1088 (9th Cir. 2002)).
“True threats” are “only those threats in which the ‘speaker means to communicate
a serious expression of an intent to commit an act of unlawful violence to a
particular individual or group of individuals.’” United States v. Bagdasarian, 652
F.3d 1113, 1122 (9th Cir. 2011) (quoting Virginia v. Black, 538 U.S. 343, 359
(2003)).
The government had to prove “that the statement would be understood by
people hearing or reading it in context as a serious expression of an intent to kill or
injure,” Bagdasarian, 652 F.3d at 1118, “a member of the immediate family of a
former President[, or] . . . a major candidate for the office of President,” 18
U.S.C. § 879(a)(1), (3); and “that the defendant intended that the statement be
2 understood as a threat,” Bagdasarian, 652 F.3d at 1118.1
Wallenstein called a law enforcement tip line and stated that he wanted to
“confess” that he was “going to attempt an assassination on Donald Trump or
Hillary Clinton.” He stated that it was “not a joke” and he was “very serious.”
Wallenstein also stated that his feelings had been building over “the past year,”
that it “will be attempted,” and that he was willing to die. He didn’t say anything
to suggest that he was not serious. And to the extent his statements could be
interpreted as a plea for help, such an interpretation does not undercut the
threatening nature of his statements. The jurors could evaluate Wallenstein’s tone
and statements because they twice heard the entire recording of the call. We
conclude that the evidence was sufficient for any reasonable factfinder to conclude
beyond a reasonable doubt that Wallenstein violated § 879.
We also conclude that the evidence established that Wallenstein made a
“true threat.” His statements “communicate[d] a serious expression of an intent to
commit an act of unlawful violence,” Bagdasarian, 652 F.3d at 1122 (quoting
Black, 538 U.S. at 359), against Trump and Clinton. And the context surrounding
his statements, as well as his explicit statements, show that he intended his
statements to be taken seriously. Thus, we hold that the evidence was sufficient to
support his conviction.
1 The parties stipulated that Trump and Clinton were protectees under § 879(a).
3 2. Wallenstein challenges the jury instructions, but some of his challenges are
subject to plain error review because he failed to make them below. Under plain
error review, he must show “(1) that there was error, (2) that the error was plain,
and (3) that the error affected his substantial rights.” United States v. Alghazouli,
517 F.3d 1179, 1188 (9th Cir. 2008). Wallenstein must show prejudice in order to
demonstrate that any error affected his substantial rights. Id. at 1190 (“To show
prejudice, an appellant must show a reasonable probability that, but for the error
claimed, the result of the proceeding would have been different.” (internal
quotation marks and brackets omitted) (quoting United States v. Dominguez
Benitez, 542 U.S. 74, 82 (2004))).
We review these arguments for plain error: (1) the instructions misstated the
law on the objective element; (2) the instructions on the intent element were
misleading; (3) the district court erred by failing to instruct on willfulness; and (4)
the district court erred by failing to give an instruction sua sponte on Wallenstein’s
theory of his defense—that he was asking for help. These arguments are
unavailing because Wallenstein either fails to show that the district court erred or
fails to show a reasonable probability that, but for the claimed errors, the verdict
would have been different.
Wallenstein preserved his argument that the instructions failed to tell the
jury to consider context in deciding on the intent element. For preserved jury
4 instruction challenges, the court “review[s] the jury instructions as a whole and
accord[s] the trial judge substantial latitude so long as the instructions fairly and
adequately covered the issues presented.” United States v. Moe, 781 F.3d 1120,
1127 (9th Cir. 2015) (internal quotation marks omitted) (quoting United States v.
Bauer, 84 F.3d 1549, 1560 (9th Cir. 1996)). Here, the record supports that the
instructions, as a whole, sufficiently told the jury to consider context in deciding on
the intent element. Notably, the instruction defining threat told the jury to
“consider the circumstances under which the alleged threat was made, including its
context.” The district court did not err.
Finally, Wallenstein contends that the district court erred by failing to give a
dual role instruction. Wallenstein waived this argument because defense counsel
was aware of the applicable law and affirmatively agreed that the court could
remove the dual role instruction. See United States v.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50003
Plaintiff-Appellee, D.C. No. 2:16-cr-00550-BRO-1 v.
MICHAEL ANDREW WALLENSTEIN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Central District of California Beverly Reid O'Connell, District Judge, Presiding
Argued and Submitted September 12, 2019 Pasadena, California
Before: RAWLINSON, IKUTA, and BENNETT, Circuit Judges.
Michael Wallenstein appeals his jury conviction for threatening to kill
Donald Trump and Hillary Clinton in violation of 18 U.S.C. § 879. Wallenstein
contends that the evidence presented at trial was insufficient to support his
conviction, various procedural errors require reversal, there was cumulative error,
and § 879 is unconstitutionally vague and overbroad. We have jurisdiction under
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 28 U.S.C. § 1291, and we affirm.
1. “In reviewing for sufficiency of the evidence, we assess the evidence in the
light most favorable to the prosecution, determining whether any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.” United States v. Stewart, 420 F.3d 1007, 1014–15 (9th Cir. 2005) (internal
quotation marks omitted) (quoting United States v. Orozco-Santillan, 903 F.2d
1262, 1264 (9th Cir. 1990)). And “[i]f sufficient evidence is found, we then
review de novo whether the facts as found by the jury establish the core
constitutional fact, in this case, a true threat.” Id. at 1015 (internal quotation marks
omitted) (quoting United States v. Hanna, 293 F.3d 1080, 1088 (9th Cir. 2002)).
“True threats” are “only those threats in which the ‘speaker means to communicate
a serious expression of an intent to commit an act of unlawful violence to a
particular individual or group of individuals.’” United States v. Bagdasarian, 652
F.3d 1113, 1122 (9th Cir. 2011) (quoting Virginia v. Black, 538 U.S. 343, 359
(2003)).
The government had to prove “that the statement would be understood by
people hearing or reading it in context as a serious expression of an intent to kill or
injure,” Bagdasarian, 652 F.3d at 1118, “a member of the immediate family of a
former President[, or] . . . a major candidate for the office of President,” 18
U.S.C. § 879(a)(1), (3); and “that the defendant intended that the statement be
2 understood as a threat,” Bagdasarian, 652 F.3d at 1118.1
Wallenstein called a law enforcement tip line and stated that he wanted to
“confess” that he was “going to attempt an assassination on Donald Trump or
Hillary Clinton.” He stated that it was “not a joke” and he was “very serious.”
Wallenstein also stated that his feelings had been building over “the past year,”
that it “will be attempted,” and that he was willing to die. He didn’t say anything
to suggest that he was not serious. And to the extent his statements could be
interpreted as a plea for help, such an interpretation does not undercut the
threatening nature of his statements. The jurors could evaluate Wallenstein’s tone
and statements because they twice heard the entire recording of the call. We
conclude that the evidence was sufficient for any reasonable factfinder to conclude
beyond a reasonable doubt that Wallenstein violated § 879.
We also conclude that the evidence established that Wallenstein made a
“true threat.” His statements “communicate[d] a serious expression of an intent to
commit an act of unlawful violence,” Bagdasarian, 652 F.3d at 1122 (quoting
Black, 538 U.S. at 359), against Trump and Clinton. And the context surrounding
his statements, as well as his explicit statements, show that he intended his
statements to be taken seriously. Thus, we hold that the evidence was sufficient to
support his conviction.
1 The parties stipulated that Trump and Clinton were protectees under § 879(a).
3 2. Wallenstein challenges the jury instructions, but some of his challenges are
subject to plain error review because he failed to make them below. Under plain
error review, he must show “(1) that there was error, (2) that the error was plain,
and (3) that the error affected his substantial rights.” United States v. Alghazouli,
517 F.3d 1179, 1188 (9th Cir. 2008). Wallenstein must show prejudice in order to
demonstrate that any error affected his substantial rights. Id. at 1190 (“To show
prejudice, an appellant must show a reasonable probability that, but for the error
claimed, the result of the proceeding would have been different.” (internal
quotation marks and brackets omitted) (quoting United States v. Dominguez
Benitez, 542 U.S. 74, 82 (2004))).
We review these arguments for plain error: (1) the instructions misstated the
law on the objective element; (2) the instructions on the intent element were
misleading; (3) the district court erred by failing to instruct on willfulness; and (4)
the district court erred by failing to give an instruction sua sponte on Wallenstein’s
theory of his defense—that he was asking for help. These arguments are
unavailing because Wallenstein either fails to show that the district court erred or
fails to show a reasonable probability that, but for the claimed errors, the verdict
would have been different.
Wallenstein preserved his argument that the instructions failed to tell the
jury to consider context in deciding on the intent element. For preserved jury
4 instruction challenges, the court “review[s] the jury instructions as a whole and
accord[s] the trial judge substantial latitude so long as the instructions fairly and
adequately covered the issues presented.” United States v. Moe, 781 F.3d 1120,
1127 (9th Cir. 2015) (internal quotation marks omitted) (quoting United States v.
Bauer, 84 F.3d 1549, 1560 (9th Cir. 1996)). Here, the record supports that the
instructions, as a whole, sufficiently told the jury to consider context in deciding on
the intent element. Notably, the instruction defining threat told the jury to
“consider the circumstances under which the alleged threat was made, including its
context.” The district court did not err.
Finally, Wallenstein contends that the district court erred by failing to give a
dual role instruction. Wallenstein waived this argument because defense counsel
was aware of the applicable law and affirmatively agreed that the court could
remove the dual role instruction. See United States v. Perez, 116 F.3d 840, 845
(9th Cir. 1997).
3. We next address Wallenstein’s argument that the district court abused its
discretion by admitting testimony held to be improper in Hanna, 293 F.3d at 1085–
86. “A district judge abuses his discretion when he acts arbitrarily or irrationally.”
United States v. Ford, 632 F.2d 1354, 1377 (9th Cir. 1980), overruled on other
grounds by United States v. De Bright, 730 F.2d 1255 (9th Cir. 1984) (en banc).
Assuming without deciding that Wallenstein properly preserved this issue
5 for appeal, we conclude that the district court did not abuse its discretion in
admitting the challenged testimony. Unlike in Hanna, 293 F.3d at 1085–86, the
witnesses here did not testify as experts, and they were the recipients of the threats,
so their reactions and opinions were relevant in considering the context
surrounding Wallenstein’s statements.
4. Wallenstein argues that the district court erred in conducting voir dire by
failing to inquire adequately about law enforcement bias. We review this issue for
plain error because he did not make this objection below. Although the law
enforcement bias question proposed by the government is a standard question, and
it may have been better practice for the district court to have asked it, the district
court did not plainly error because, as a whole and given the broad discretion
afforded to the court in conducting voir dire, the questions were reasonably
sufficient to test the jury for potential law enforcement bias. See United States v.
Giese, 597 F.2d 1170, 1181–83 (9th Cir. 1979).
5. As discussed above, there was no error at all as to Wallenstein’s preserved
challenge or the one alleged error we assume he preserved. We review “the
cumulative impact of the possible plain errors for plain error.” United States v.
Necoechea, 986 F.2d 1273, 1283 (9th Cir. 1993). Given the substantial evidence
against him, Wallenstein fails to show a reasonable probability that, but for the
possible plain errors, the verdict would have been different. There was no
6 cumulative error requiring reversal.
6. Wallenstein waived his argument that § 879 is unconstitutionally vague and
overbroad because he failed to raise it properly in his opening brief. See United
States v. Kama, 394 F.3d 1236, 1238 (9th Cir. 2005).
AFFIRMED.
7 FILED United States v. Wallenstein, Case No. 17-50003 SEP 23 2019 Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I concur in the result.