Opinion
No. 17-30240
12-10-2018
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RONALD RAY HORNER, Defendant-Appellant.
NOT FOR PUBLICATION
D.C. No. 4:16-cr-00040-BMM-1 MEMORANDUM Appeal from the United States District Court for the District of Montana
Brian M. Morris, District Judge, Presiding Submitted December 6, 2018 Seattle, Washington Before: GRABER, McKEOWN, and CHRISTEN, Circuit Judges.
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).
Ronald Horner appeals the district court's refusal to declare a mistrial after a Canadian law enforcement officer testified that Horner responded, "No way, nice try," when asked if he wanted to provide a statement while detained in Canada. At the conclusion of trial, the jury found Horner guilty of transporting child pornography in violation of 18 U.S.C. § 2252(a)(1), (b). Because the parties are familiar with the facts, we do not repeat them here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review for abuse of discretion the denial of a motion for mistrial. United States v. Lemus, 847 F.3d 1016, 1024 (9th Cir. 2016). Even if we assume the officer's testimony violated Horner's Fifth Amendment rights, the district court's curative jury instruction was insufficient, and Horner did not waive his objection to the testimony, the Government has "demonstrate[d], beyond a reasonable doubt, that the error was harmless." United States v. Caruto, 532 F.3d 822, 827 (9th Cir. 2008) (citing United States v. Baker, 999 F.2d 412, 416 (9th Cir. 1993)). The brief "extent of comments made by the [officer]" and the fact that "an inference of guilt from silence was [not] stressed to the jury" support this conclusion. Id. at 831 (quoting United States v. Velarde-Gomez, 269 F.3d 1023, 1034 (9th Cir. 2001) (en banc)). Importantly, even setting aside the disputed testimony, the totality of evidence presented at trial was "virtually conclusive of guilt." Whitehead, 200 F.3d at 639. Canadian officials testified that an initial review of Horner's laptop uncovered several illicit images, and a forensic examination revealed hundreds of image and video files of child pornography and Internet activity suggesting that Horner accessed these and other illicit materials online. The jury was presented with an illustrative sample of these files. Finally, the short duration of jury deliberations here (i.e., less than an hour) further "suggest[s] that any error in allowing [the disputed] testimony . . . was harmless." United States v. Lopez, 500 F.3d 840, 846 (9th Cir. 2007) (two and a half hours of deliberation indicate that it was not a "difficult case" for the jury to decide) (citation omitted).
Because we would affirm under either standard of review, we need not decide whether plain error review is more appropriate here. See United States v. Whitehead, 200 F.3d 634, 638 (9th Cir. 2000). --------
AFFIRMED.