USA V. KARL THOMPSON, JR., No. 12-30366 (9th Cir. 2014)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUN 17 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 12-30366 D.C. No. 2:09-cr-00088-FVS-1 v. MEMORANDUM* KARL F. THOMPSON, Jr., Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Washington Fred L. Van Sickle, Senior District Judge, Presiding Argued and Submitted June 2, 2014 Seattle, Washington Before: McKEOWN and WATFORD, Circuit Judges, and WHYTE, Senior District Judge.** 1. The government does not challenge the district court s determination that it suppressed exculpatory material by failing to disclose its full knowledge of the opinions of its expert, Grant Fredericks. That failure, however, did not prejudice * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Ronald M. Whyte, Senior District Judge for the U.S. District Court for the Northern District of California, sitting by designation. Page 2 of 3 Karl Thompson under Brady v. Maryland, 373 U.S. 83 (1963), as Thompson has not shown that there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Strickler v. Greene, 527 U.S. 263, 280 (1999). Unlike the evidence at issue in United States v. Olsen, 704 F.3d 1172, 1184 (9th Cir. 2013), the evidence here could not have been used to impeach the government s expert at trial, since Fredericks did not testify. Further, the government s pre-trial disclosures put Thompson on notice of potentially favorable opinions in Fredericks reports; Thompson was thus not deprived of the opportunity to develop a defense strategy that utilized those opinions. Finally, the non-disclosure did not impede Thompson s ability to cross-examine the government s witnesses. Almost all of Fredericks opinions, to the extent they were favorable to Thompson, were merely cumulative of Thompson s own expert s opinions. United States v. Kohring, 637 F.3d 895, 902 (9th Cir. 2011). 2. The district court did not abuse its discretion in admitting testimony about the victim s behavior prior to and during the incident. See Boyd v. City & Cnty. of S.F., 576 F.3d 938, 948 (9th Cir. 2009). Evidence that the victim was not fleeing or hiding from police undermined Thompson s claim that the victim used the soda bottle he was holding as a weapon. The evidence did not raise an undue Page 3 of 3 risk that the jury would impute knowledge of the victim s innocence to Thompson. See id. at 947 49. 3. The district court did not err in instructing the jury. The court s instructions correctly stated the intent requirement of 18 U.S.C. ยง 242. As we have previously held, willfulness encompasses reckless disregard of a constitutional requirement that has been made specific and definite. United States v. Koon, 34 F.3d 1416, 1449 (9th Cir. 1994) (internal quotation marks omitted), aff d in part, rev d in part on other grounds, 518 U.S. 81 (1996). 4. The district court did not err in denying Thompson s motion for a new trial on the ground of alleged juror misconduct. The juror s off-the-cuff statement about historical corruption in Spokane does not resemble the type of extraneous information this court proscribes. Price v. Kramer, 200 F.3d 1237, 1255 (9th Cir. 2000). Even if the juror s isolated comment constituted impermissible extraneous information, Thompson has not shown a reasonable possibility that the extrinsic material could have affected the verdict. United States v. Mills, 280 F.3d 915, 921 (9th Cir. 2002). AFFIRMED.
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