United States of America v. Joseph Newbill

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSEPH NEWBILL,
Defendant - Appellant.
No. 13-30365
D.C. No. 2:13-cr-00300-RSM-1
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted December 9, 2014
Seattle, Washington
Before: HAWKINS, McKEOWN, and TALLMAN, Circuit Judges.
Joseph Newbill challenges the sufficiency of the evidence underlying the
district court’s determination that Newbill violated the terms of his supervised
release by committing indecent exposure. We affirm.
FILED
DEC 16 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Like the district court, we decline to consider the hearsay testimony
presented at the revocation hearing. However, we conclude that the admissible
evidence of Newbill’s statements to investigators and his demeanor during
questioning support the district court’s conclusion that he “intentionally ma[de]
an[] open and obscene exposure of his . . . person . . . knowing that such conduct
[was] likely to cause reasonable affront or alarm.” Wash. Rev. Code
§ 9A.88.010(1) (2014). “[V]iewing the evidence in the light most favorable to the
government,” we conclude that a “rational trier of fact could have found the
essential elements of a violation [of supervised release] by a preponderance of the
evidence.” United States v. King, 608 F.3d 1122, 1129 (9th Cir. 2010) (quoting
United States v. Jeremiah, 493 F.3d 1042, 1045 (9th Cir. 2007)) (internal quotation
marks omitted).
Even if the district court had erred in its conclusion that Newbill committed
indecent exposure, any error would have been harmless. Newbill admitted to three
additional Grade C violations of the terms of his supervised release. Given
Newbill’s criminal history, the Sentencing Guidelines recommended a term of
imprisonment of five to eleven months and an additional term of supervised release
regardless of whether the district court found three or four Grade C violations. See
U.S.S.G. §§ 7B1.3(g)(2), 7B1.4(a); see also United States v. Wing, 682 F.3d 861,
871 (9th Cir. 2012) (“[V]iolations of conditions of a term of supervised release are

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not individually punished.”). Newbill’s inappropriate conduct during the term of
his supervised release justified the district court’s decision to require a
psychosexual evaluation. Contrary to Newbill’s suggestion, a psychosexual
evaluation does not “implicate a particularly significant liberty interest” such that
the district court was required to make “heightened findings” before imposing it.
United States v. Bainbridge, 746 F.3d 943, 952 n.11 (9th Cir. 2014) (quoting
United States v. Stoterau, 524 F.3d 988, 1006 (9th Cir. 2008)).
AFFIRMED.

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