United States v. June Wolverine

FILED

NOT FOR PUBLICATION AUG 22 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-30092

Plaintiff - Appellee, D.C. No. 4:12-cr-00081-SEH-

v.

MEMORANDUM*

JUNE LEE WOLVERINE,

Defendant - Appellant.

Appeal from the United States District Court for the District of Montana Sam E. Haddon, District Judge, Presiding

Argued and Submitted May 13, 2014 Seattle, Washington

Before: O’SCANNLAIN, BERZON, and TALLMAN, Circuit Judges.

Defendant-Appellant June Lee Wolverine challenges her jury convictions

under 18 U.S.C. § 1153(a) (offense committed within Indian country) for assault

resulting in serious bodily injury in violation of 18 U.S.C. § 113(a)(6) and assault

with a dangerous weapon in violation of 18 U.S.C. § 113(a)(3). She also

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. challenges her concurrent sentences of 78 months imprisonment followed by

years of supervised release.

First, Wolverine contends that her…

I concur in the majority disposition except with regard to the two-level obstruction of justice enhancement.

To recap: That enhancement applies if “the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice” with respect to the prosecution of the offense of conviction. U.S.S.G. § 3C1.1. The enhancement applies where a defendant commits perjury while under oath, but does not cover “false statements, not under oath, to law enforcement officers,” except where a defendant “provide[s] a materially false statement to a law enforcement officer that significantly obstructed or impeded the official investigation or prosecution of the instant offense.” Id. at § 3C1.1 cmt. nn. 4(b), (g), 5(b). We have applied this commentary as written. See, e.g., United States v. Solano-Godines, 120 F.3d 957, 965 (9th Cir.1997). Every other circuit has _ done the same. See, e.g., United States v. Selvie, 684 F.3d 679, 684 (7th Cir.2012); United States v. Williams, 79 F.3d 334, 338 (2nd Cir.1996).

The district court never specified which of the two versions of obstruction occurred here, and did not make the findings required before imposition of this…

MEMORANDUM *

Defendant-Appellant June Lee Wolverine challenges her jury convictions under 18 U.S.C. § 1153 (a) (offense committed within Indian country) for assault resulting in serious bodily injury in violátion of 18 U.S.C. § 113 (a)(6) and assault with a dangerous weapon in violation of 18 U.S.C. § 113 (a)(3). She also challenges her concurrent sentences of 78 months imprisonment followed by 3 years of supervised release.

First, Wolverine contends that her conviction was obtained using impermissible character evidence because the district court improperly admitted testimony regarding an incident nine months earlier where she stabbed the same victim, her boyfriend, Nate Tatsey, in the chest. Wolverine alleges that evidence of this incident was too dissimilar from the charged conduct to be admissible under Federal Rule of Evidence 404(b) and was more prejudicial than probative. We review the district court’s admission of character evidence for abuse of discretion. United States v. Mayans, 17 F.3d 1174, 1181 (9th Cir.1994).

“When the Government offers evidence of prior or subsequent crimes or bad acts as part of its case-in-chief, it has the burden of first establishing…