FILED

NOT FOR PUBLICATION

JUN 21 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-30266

Plaintiff-Appellee, D.C. No. 1:19-cr-00015-SPW-1 v.

JACK PRESTON COVERSUP, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Submitted June 9, 2022** Seattle, Washington

Before: IKUTA and MILLER, Circuit Judges, and PREGERSON,*** District Judge.

* 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). *** The Honorable Dean D. Pregerson, United States District Judge for the Central District of California, sitting by designation. 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.

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AFFIRMED.

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