United States v. Timothy Gaines , 575 F. App'x 791 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 28 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-30010
Plaintiff - Appellee, D.C. No. 3:11 cr-0424 -SI
v.
MEMORANDUM*
TIMOTHY CHRISTOPHER GAINES,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted May 16, 2014**
Portland, Oregon
Before: ALARCÓN, TASHIMA, and IKUTA, Circuit Judges.
Defendant Timothy Christopher Gaines appeals the district court’s order
denying his motion for a new trial. Gaines was convicted of being a felon in
possession of a firearm under 18 U.S.C. § 922(g)(1). Gaines contends that the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
government committed prosecutorial misconduct by making a grammar-school
arithmetical error in its closing argument. We agree with the district court that the
misstatement did not prejudice Gaines’ trial, and affirm.
We review for plain error claims of prosecutorial misconduct when the
defendant failed to object at trial. United States v. Washington, 462 F.3d 1124,
1136 (9th Cir. 2006). We review for abuse of discretion the district court’s denial
of a motion for a new trial. Id. at 1135. Under the plain error standard, Gaines is
entitled to relief only if the government’s statement was improper and
“substantially prejudice[d] [Gaines’s] trial.” United States v. Sanchez, 659 F.3d
1252, 1256 (9th Cir. 2011) (first alteration in original) (citation and internal
quotation marks omitted). Even then, we may “correct only particularly egregious
errors . . . that seriously affect the fairness, integrity or public reputation of judicial
proceedings.” Id. (citation and internal quotation marks omitted).
The prosecutor’s mischaracterization of two 235-foot distances as two 40-
yard distances (instead of, correctly, as two 80-yard distances) was improper
because it was not “based on the evidence . . . [or] reasonable inferences from the
evidence.” United States v. Hermanek, 289 F.3d 1076, 1100 (9th Cir. 2002)
(quoting United States v. Henderson, 241 F.3d 638, 652 (9th Cir. 2000)) (internal
quotation marks omitted). But the misstatement did not substantially prejudice
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Gaines. We agree with the district court that the misstatement was “simple
arithmetic that the jury was capable of reconstructing and correcting on its own.”
Moreover, the district court’s instructions to the jury reminded it, among other
things, that “statements, objections, and arguments by the lawyers are not
evidence.” Cf. United States v. Carrillo, 16 F.3d 1046, 1050-51 (9th Cir. 1994);
Tenorio v. United States, 390 F.2d 96, 98 (9th Cir. 1968). The improper statement
was not “crucial to the government’s case.” United States v. Kerr, 981 F.2d 1050,
1054 (9th Cir. 1992); see also Carrillo, 16 F.3d at 1051 (declining to find
prejudice where “the jury heard independent and far more persuasive evidence of
the same information”). And the statement was “but one of many [points] made in
closing.” United States v. Boulware, 470 F.3d 931, 937 (9th Cir. 2006), rev’d on
other grounds, 552 U.S. 421 (2008).
We thus conclude that the government’s misstatement was not plain error.
The district did not abuse its discretion in denying Gaines’ motion for a new trial.
See United States v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc).
Accordingly, the judgment of the district court is
AFFIRMED.
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