United States v. Jamie Harmon

MEMORANDUM

The United States appeals the district court’s grant of Defendant Jamie Harmon’s motion for a new trial. We have jurisdiction under 28 U.S.C. § 1291 . We conclude that the district court abused its discretion, and we reverse. Because the parties are familiar with the facts, we need not recount them here.

I

We review for abuse of discretion the district court’s grant of a new trial under Federal Rule of Criminal Procedure 33. United States v. A. Lanoy Alston, D.M.D., P.C., 974 F.2d 1206, 1211-12 (9th Cir. 1992). An error of law is an abuse of discretion. United States v. Hinkson, 585 F.3d 1247, 1260 (9th Cir.2009) (en bane). Whether a district court’s jury instructions “omitted or incorrectly described an ele ment of [a criminal] offense” is a question of law and is reviewed de novo. United States v. Thongsy, 577 F.3d 1036, 1040 (9th Cir.2009). Likewise, a district court’s determination that an instructional error at trial prejudiced a defendant is a mixed question of law and fact that this Court reviews de novo. See Herd v. Kincheloe, 800 F.2d 1526, 1528 (9th Cir.1986).

II

“Any error, defect, irregularity, or variance that does not affect substantial rights must be…