NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 12 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-30015

Plaintiff-Appellee, D.C. No. 2:20-cr-00032-JCC-2 v.

KALEB J COLE, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding

Argued and Submitted March 28, 2023 Seattle, Washington

Before: NGUYEN and HURWITZ, Circuit Judges, and GUTIERREZ,** Chief District Judge.

Kaleb Cole was convicted on several counts of violating 18 U.S.C. §§ 245,

371, and 876(c) based on his participation in a campaign of mailing threatening

posters. Cole raises several challenges to his convictions and sentence. We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Philip S. Gutierrez, Chief United States District Judge for the Central District of California, sitting by designation. jurisdiction under 28 U.S.C. § 1291 and affirm.

1. In reviewing a conviction based on a true threat, we “[d]efer[] to the

jury’s findings on historical facts, credibility determinations, and elements of

statutory liability” and “consider whether the verdict is supported by substantial

evidence.” United States v. Hanna, 293 F.3d 1080, 1088 (9th Cir. 2002). If

substantial evidence exists, “we then conduct an independent review of the record”

and decide whether the facts establish a true threat. Id. A true threat is a

“statement[] where the speaker means to communicate a serious expression of an

intent to commit an act of unlawful violence.” Thunder Studios, Inc. v. Kazal, 13

F.4th 736, 746 (9th Cir. 2021) (quoting Virginia v. Black, 538 U.S. 343, 359

(2003)).

The record supports the jury’s finding that the three mailed posters were true

threats under both an objective and subjective standard. See United States v.

Keyser, 704 F.3d 631, 638 (9th Cir. 2012). The first poster depicts a man in a skull

mask holding a Molotov cocktail in front of a burning house and states, “your

actions have consequences our patience has its limits.” The second poster states,

with the text broken up by swastikas, “we are watching we are noone [sic] we are

everyone we know where you live do not fuck with us.” And the third poster,

similarly broken up by swastikas, states, “two can play at this game these people

have names and addresses,” and depicts armed individuals below the phrase “death

2 to pigs” standing behind another person. The victims who received the posters at

their homes testified that they feared for their safety, and group chat messages and

undercover recordings showed that Cole and his co-conspirators intended the

posters to communicate threats of violence.

2. We review a district court’s denial of a motion to suppress de novo,

United States v. Crews, 502 F.3d 1130, 1135 (9th Cir. 2007), and a magistrate

judge’s finding of probable cause to issue a search warrant for clear error, giving

“great deference” to that finding, United States v. Krupa, 658 F.3d 1174, 1177 (9th

Cir. 2011) (citation omitted). Here, the magistrate judge could reasonably infer

from the supporting affidavit that Cole discussed and coordinated the postering

campaign; other information also indicated Cole’s leadership and involvement in

Atomwaffen’s activities. The magistrate judge thus had a substantial basis to find

probable cause to search Cole’s house. See United States v. Gourde, 440 F.3d

1065, 1069 (9th Cir. 2006) (en banc) (explaining that courts should not “flyspeck”

an affidavit).

3. To receive a Franks hearing, a defendant must show that (1) the

affidavit contained intentionally or recklessly false statements or misleading

omissions and (2) the false statements or omissions were material to the finding of

probable cause. See United States v. Meek, 366 F.3d 705, 716 (9th Cir. 2004).

Here, the details about the FBI informant that were omitted from the affidavit were

3 immaterial to the finding of probable cause. Even if the magistrate judge had

considered the informant’s fifteen-year-old conviction and receipt of

approximately $140,000 from the FBI over sixteen years, the other information in

the affidavit, such as screenshots of the group chat messages, nevertheless supports

a finding of probable cause. See United States v. Meling, 47 F.3d 1546, 1553–55

(9th Cir. 1995) (holding that the omission of an informant’s ten-year-old

convictions and receipt of a $100,000 reward was immaterial). The district court

thus did not err in denying a Franks hearing.

4. We review a district court’s denial of a motion to dismiss based on

speedy trial grounds de novo and the court’s factual findings for clear error.

United States v. Lam, 251 F.3d 852, 855 (9th Cir. 2001). The district court here

considered all applicable factors, including Cole’s eighteen-month pretrial

detention, issues stemming from the COVID-19 pandemic, the violent nature of his

felony charges, and Cole’s failure to consistently invoke his speedy trial right. The

district court thus did not err in denying Cole’s motion to dismiss. See United

States v. Olsen, 21 F.4th 1036, 1040–49 (9th Cir. 2022); United States v. King, 483

F.3d 969, 975–77 (9th Cir. 2007).

5. We review statutory and constitutional challenges to the composition

of a jury “independently and non-deferentially.” United States v. Sanchez-Lopez,

879 F.2d 541, 546 (9th Cir. 1989). Because Cole has failed to establish that jurors

4 who are unvaccinated against COVID-19 constitute a distinctive group, his fair

cross section challenge fails. See Duren v. Missouri, 439 U.S. 357, 363–64 (1979);

United States v. Kleifgen, 557 F.2d 1293, 1296 (9th Cir. 1977).

6. We review factual findings made in conjunction with sentencing for

clear error and the application of the Sentencing Guidelines for abuse of discretion.

United States v. Harris, 999 F.3d 1233, 1235 (9th Cir. 2021). The district court did

not err in applying sentencing enhancements under U.S.S.G. §§ 2A6.2(b)(1)(D),

for Cole’s “threatened use[] of a dangerous weapon,” and 3B1.1(a), for Cole’s role

as an “organizer” or “leader,” because the poster depicting an individual with a

Molotov cocktail in front of a burning house is a true threat, and evidence, such as

group chat messages, undercover recordings, and trial testimony, showed that Cole

was an organizer and leader of the postering campaign.

AFFIRMED.

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