United States of America v. Jack Preston Coversup

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JACK PRESTON COVERSUP,
Defendant-Appellant.
No. 20-30266
D.C. No.
1:19-cr-00015-SPW-1
MEMORANDUM*
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.
FILED
JUN 21 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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.

-- 1 of 3 --

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.
2

-- 2 of 3 --

AFFIRMED.
3

-- 3 of 3 --