United States of America v. Michael Aaron Stuker

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL AARON STUKER,
Defendant-Appellant.
No. 21-35466
D.C. No.
1:11-cr-00096-DLC-2
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, District Judge, Presiding
Argued and Submitted December 6, 2022
Seattle, Washington
Before: McKEOWN, MILLER, and MENDOZA, Circuit Judges.
Michael Stuker was convicted of witness tampering, in violation of 18
U.S.C. § 1512(a)(2)(A), and possession of a firearm in furtherance of a crime of
violence, under 18 U.S.C. § 924(c). Stuker contends that witness tampering does
not qualify as a crime of violence for two reasons: first, witness tampering can be
committed by confinement, which he argues does not require the use of physical
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
DEC 16 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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force, and second, witness tampering is overbroad because it punishes the attempt
to threaten to use physical force. We have jurisdiction under 28 U.S.C. §§ 2253(a)
and (c)(1), and we affirm.
We are not persuaded by Stuker’s position that the definition of physical
force under 18 U.S.C. § 1515(a)(2) is broader than the force described in
§ 924(c)(3)(A). The district court correctly reasoned that by including
confinement in the context of physical action and defining it as physical force,
Congress required a physical restriction on movement that would constitute
physical force under § 924(c)(3)(A).
Without deciding the issue, we acknowledge the parties’ positions that the
statute covers attempts to threaten to use physical force and is therefore overbroad.
Nevertheless, accepting the parties’ interpretation of § 1512(a)(2), the attempt-to-
threaten offense is divisible from the other offenses created by the statute.
Applying the modified categorical approach, the government emphasizes that the
indictment’s language was limited to “used and attempted to use physical force,”
while Stuker points out that the jury was instructed that the United States had to
prove that “the defendant used or attempted to use physical force or the threat of
physical force against any person.” The jury was instructed on the entire
definition, a portion of which the government concedes is broader than § 924(c)
allows.

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Nevertheless, “[t]he Supreme Court has held that instructional errors are
generally subject to harmless error review,” United States v. Reed, 48 F.4th 1082,
1088 (9th Cir. 2022), and “cases in which harmless error review would not apply
‘are the exception and not the rule,’” id. (quoting Hedgpeth v. Pulido, 555 U.S. 57,
61 (2008) (per curiam)). Under harmless error review, relief is appropriate if the
instructional error “had substantial and injurious effect or influence in determining
the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting
Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Two witnesses testified
that Stuker was armed and relayed some communication that the victim should not
testify against J.L. Because the threat was relayed, it was a threat rather than an
attempted threat. Nothing suggests that Stuker attempted to reach the victim and
carry out a threat but was unable to do so. The inclusion of attempt to threaten in
the jury instruction was harmless.
AFFIRMED.

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