United States v. Rogers

── United States v. Rogers ── Court: Court of Appeals for the Ninth Circuit Date: May 21, 2026 Category: General NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 21 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 25-1267 D.C. No. Plaintiff - Appellee, 1:23-cr-00112-SPW-1 v. MEMORANDUM* RICHARD LEE ROGERS, Defendant - Appellant. UNITED STATES OF AMERICA, No. 25-4001 Plaintiff - Appellee, D.C. No. 1:23-cr-00112-SPW-1 v. RICHARD LEE ROGERS, Defendant - Appellant. Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding Submitted May 19, 2026** Seattle, Washington * 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). Before: TALLMAN, OWENS, and R. NELSON, Circuit Judges. Defendant Richard Lee Rogers appeals his jury conviction stemming from making hundreds of harassing calls to the FBI’s National Threat Operations Center (NTOC) and to the Office of the Speaker of the House. The jury convicted Rogers on one count of threatening to injure a member of the United States Congress in violation of 18 U.S.C. § 115(a)(1)(B), (b)(4) (Count 1), and two counts of making harassing telephone calls in violation of 47 U.S.C. § 223(a)(1)(E) (Counts 2 and 3). We have jurisdiction under 28 U.S.C. § 1291, and we affirm the conviction.1 1. The district court did not err by admitting into evidence recordings of the calls Rogers placed to the NTOC public tip line and text messages between Rogers and FBI Special Agent Matthew Deurmeier. First, the recordings were direct evidence of Count 3, which charged Rogers with making harassing phone calls to the NTOC. Accordingly, they are not subject to Federal Rule of Evidence (Rule) 404(b), and the district court properly deemed Rogers’s motion to exclude those recordings moot. See United States v. Loftis, 843 F.3d 1173, 1176 (9th Cir. 2016) (holding that evidence of a crime being charged is not subject to Rule 404(b)). The district court also conducted a reasonable balancing under Rule 403, comparing the 1 Rogers filed a separate notice of appeal as to the district court’s revocation of his probation and we consolidated his two appeals. However, he has not addressed or otherwise raised any arguments as to the revocation in his briefs. We therefore deem his challenge to the revocation of probation abandoned and appeal No. 25-4001 is DISMISSED. See United States v. Vought, 69 F.3d 1498, 1501 (9th Cir. 1995). 2 25-1267 recordings’ relevance and probative value, on the one hand, and the potential for unfair prejudice due to their cumulative nature, on the other. Second, the district court reasonably applied the four-part test under Rule 404(b) to the text messages. See United States v. Kindred, 931 F.2d 609, 612– 13 (9th Cir. 1991). It also reasonably concluded that the text messages were not more prejudicial than probative under Rule 403. 2. Nor did the district court err in concluding that Rogers’s calls were true threats. As to Count 1, the plain language of the phone call forming the basis for the indictment and the c