NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

JACK BENJAMIN HESSIANI, 

Defendant-Appellant.

No. 18-10176 

D.C. No. 

2:16-cr-00320-LRH-VCF-1 

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

Larry R. Hicks, District Judge, Presiding

Argued and Submitted September 11, 2019

San Francisco, California

Before: WALLACE, BEA, and FRIEDLAND, Circuit Judges.

Jack Benjamin Hessiani appeals from his conviction for knowingly possessing 

a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2), and from 

his 77-month sentence. For the following reasons, we affirm the conviction and 

sentence.

1. We decline to apply de novo review to Hessiani’s challenge of the

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

SEP 30 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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government’s peremptory strike against juror T.O. under Batson v. Kentucky, 476 

U.S. 79 (1986). The district court made a “deliberate decision whether purposeful 

discrimination occurred.” United States v. Alanis, 335 F.3d 965, 969 (9th Cir. 2003). 

After hearing from the parties on the Batson challenge, the district court decided to 

“overrule the challenge” because it was “satisfied with the government’s

explanation.” Because the district court evaluated Hessiani’s challenge under all 

three steps of Batson, we review the challenge on appeal for clear error. See Snyder 

v. Louisiana, 552 U.S. 472, 477 (2008). 

The district court did not clearly err in concluding Hessiani failed to meet his 

burden to show that race was a “substantial motivating factor in the prosecutor’s 

decision to strike.” Cook v. LaMarque, 593 F.3d 810, 822 (9th Cir. 2010). The 

district court evaluated the prosecutor’s reasons and credibility in their totality. See 

Mitleider v. Hall, 391 F.3d 1039, 1047 (9th Cir. 2004). Particularly given the 

criminal justice subject T.O. had studied, we do not have a basis to doubt the district 

court’s conclusion that the government’s explanation for the strike based on age, 

education, and life experience as a “combination” was not pretextual. 

2. The district court did not constructively amend the indictment. The 

indictment charged that Hessiani knowingly possessed two firearms when he was a 

convicted felon. The district court’s instructions permitted the jury to convict 

Hessiani if it found he knowingly possessed at least one of two firearms. Because 
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the type of firearm possessed is not an essential element of section 922(g)(1), the 

jury was not permitted to convict Hessiani for uncharged conduct. See United States 

v. Hartz, 458 F.3d 1011, 1021 (9th Cir. 2006). United States v. Ward, 747 F.3d 

1184, 1191–92 (9th Cir. 2014), is distinguishable because there the jury instructions 

allowed the jury to convict for uncharged conduct.

The variance did not prejudice Hessiani’s substantial rights. Just as in Hartz, 

the difference between the indictment and jury instructions was “minor,” and not of 

the nature that risked “blindsiding a defendant with an unforeseeable basis of 

liability or prosecution strategy.” Hartz, 458 F.3d at 1022–23. The shooting range 

manager and assistant manager both testified that every gun at the range was from 

out of state. The ATF agent testified that all of the guns at issue were manufactured 

in either New Hampshire or Germany. Hessiani had ample opportunity to crossexamine these witnesses to cast doubt on the interstate nexus element of section 

922(g)(1). 

3. Even if the district court erred in admitting the out-of-court recorded 

statement of Hessiani’s cousin, Jose Aceves, the error was harmless. Aceves 

provided testimony that incriminated Hessiani independent of the recording. There 

was other ample evidence in the record to support a guilty verdict. Any error did 

not more likely than not affect the guilty verdict. See United States v. Edwards, 235 

F.3d 1173, 1178 (9th Cir. 2000). 
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4. The district court did not plainly err in admitting evidence related to

Hessiani’s nolo contendere pleas. The district court properly admitted exhibit 11, 

which contained Hessiani’s nolo contendere judgment of conviction and sentence 

for willful infliction of corporal injury under California Penal Code § 273.5, threats 

to commit a crime under California Penal Code § 422, and stalking under California 

Penal Code § 646.9(A). Because the judgment of conviction and sentence from 

Hessiani’s nolo contendere plea were introduced to show that Hessiani had 

previously been convicted of a felony, they were admissible under Federal Rule of 

Evidence 803(8). See United States v. Nguyen, 465 F.3d 1128, 1132 (9th Cir. 2006) 

(stating that judgments of conviction may be admissible under Rule 803(8) “to prove 

some other element of a subsequently charged crime”). Because exhibit 11 was 

admissible, the district court’s decision to admit exhibit 10, which contained the 

change of plea minutes and plea agreement for Hessiani’s nolo contendere plea to 

insurance fraud under California Penal Code § 550(b)(1), did not affect Hessiani’s 

substantial rights. 

5. The district court properly concluded that there was sufficient evidence 

to support the section 922(g)(1) conviction. Because exhibit 11 was admissible, the

government established that Hessiani had been previously convicted of a felony.

6. The district court properly enhanced Hessiani’s sentence under 

U.S.S.G. §§ 2K2.1 and 4B1.2(a) for his prior convictions of willfully inflicting 
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corporal injury, see California Penal Code § 273.5, and making criminal threats, see

California Penal Code § 422. United States v. Castleman, 572 U.S. 157 (2014), did 

not undermine our established precedent that the offenses in sections 273.5 and 422 

are crimes of violence. See id. at 170; Arellano Hernandez v. Lynch, 831 F.3d 1127, 

1132 (9th Cir. 2016) (holding “conviction for attempted criminal threats” under 

California Penal Code § 422(a) “is categorically a crime of violence” even after the 

Supreme Court’s decision in Castleman); United States v. Laurico-Yeno, 590 F.3d 

818, 822 (9th Cir. 2010) (“Section 273.5 does not penalize minimal, non-violent 

touchings. It penalizes the intentional use of force that results in a traumatic 

condition.”). Hessiani’s state convictions qualified as crimes of violence, and the 

enhancements were properly applied. 

7. Hessiani was not entitled to relief under Rehaif v. United States, 139 S. 

Ct. 2191 (2019). The indictment and the jury instructions contained the same 

obvious error: They omitted the element that Hessiani knew he had previously been 

convicted of a crime punishable by a term of imprisonment exceeding one year when 

he possessed a firearm. See United States v. Benamor, No. 17-50308, 2019 WL 

4198358, at *5 (9th Cir. Sept. 5, 2019). But because the record before the jury 

established that Hessiani knew he had previously been convicted in California and 

sentenced to imprisonment for more than one year when he possessed a firearm, the 

error did not affect Hessiani’s substantial rights or seriously affect the fairness, 
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integrity, or public reputation of the judicial proceedings. See id. Hessiani was 

sentenced to three years’ imprisonment for the felony offense of willful infliction of 

corporal injury. Hessiani was also sentenced to sixteen months’ imprisonment for 

making criminal threats, and to another sixteen months for stalking. The convictions

and sentences were properly before the jury. 

AFFIRMED.