Opinion
20-30266
06-21-2022
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JACK PRESTON COVERSUP, Defendant-Appellant.
NOT FOR PUBLICATION
Submitted June 9, 2022 Seattle, Washington
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
Appeal from the United States District Court for the District of Montana, D.C. No. 1:19-cr-00015-SPW-1 Susan P. Watters, District Judge, Presiding
Before: IKUTA and MILLER, Circuit Judges, and PREGERSON, District Judge.
MEMORANDUM [*]
Jack Preston Coversup appeals the district court's denial of his motion for a mistrial. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court did not abuse its discretion in denying Coversup's motion for a mistrial, because Coversup failed to show that he suffered actual prejudice resulting from the fourteen-day jury separation. United States v. Diggs, 649 F.2d 731, 738 (9th Cir. 1981), overruled on other grounds by United States v. McConney, 728 F.2d 1195 (9th Cir. 1984) (en banc). Coversup argues that he was prejudiced because the jury was impacted by memory loss, but the jury's request for a transcript of a single day of non-technical testimony, without more, does not constitute evidence of actual prejudice. Cf. United States v. Hay, 122 F.3d 1233, 1236 (9th Cir. 1997). Moreover, our prior conclusion that a 48-day separation is per se prejudicial, see id., is not applicable here. Rather, the fourteen-day separation here is shorter than the eighteen-day separation we have previously upheld. See id.
Because Coversup lacked "a legitimate claim of seriously prejudicial error," United States v. Dinitz, 424 U.S. 600, 610 (1976), resulting from the fourteen-day jury separation, any error by the district court in using the "manifest necessity" standard to evaluate Coversup's motion instead of the lower standard suggested in Dinitz was harmless.
AFFIRMED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation.