United States v. Angie Singleterry , 360 F. App'x 802 ( 2009 )

FILED
NOT FOR PUBLICATION DEC 28 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-10202
Plaintiff - Appellee, D.C. No. 4:04-cr-02244-CKJ-
BPV-2
v.
ANGIE SINGLETERRY, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted December 3, 2009
San Francisco, California
Before: B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges.
Defendant Singleterry appeals her conviction for conspiracy to distribute
methamphetamine and possession with intent to distribute methamphetamine. She
argues that district court erred by denying her motion to dismiss the Indictment and
overruling her objection to prosecutorial misconduct during closing argument.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before trial, the defendant moved to suppress statements made during an
interview conducted by FBI Special Agent Craig Roos. Singleterry claimed that
she confessed to selling methamphetamine only because the government agents
threatened her with calling Child Protective Services (“CPS”) if she did not
confess. At the suppression hearing, Agent Roos and other agents testified that
they never threatened the defendant. An officer from the Bureau of Indian Affairs
(“BIA”) also testified that, to his knowledge, no one had even contacted CPS.
Evidence later surfaced that Agent Roos had in fact called CPS three times. The
government decided not to introduce the confession at trial. The defendant filed a
motion to dismiss the Indictment, which the district court denied.
Due Process requires dismissal where there has been “outrageous
government conduct.” United States v. Williams, 547 F.3d 1187, 1199 (9th Cir.
2008) (citation omitted). Dismissals are reserved for “only the most intolerable
government conduct.” United States v. Restrepo, 930 F.2d 705, 712 (9th Cir.
1991) (quoting United States v. Bogart, 783 F.2d 1428, 1435 (9th Cir. 1986)).
When reviewing a denial of a motion to dismiss, we must consider the evidence in
the light most favorable to the government and review the district court’s factual
findings for clear error. Williams, 547 F.3d at 1199 n.9. With that perspective in
mind, we conclude that the evidence that Agent Roos contacted CPS, although he
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did not remember doing so at the suppression hearing, does not clearly establish
that the agents perjured themselves at the suppression hearing or threatened the
defendant with taking away her children if she did not confess. Even if this were
misconduct, that conduct is not so appalling as to warrant dismissal.1 The Ninth
Circuit has upheld denials of motions to dismiss in the face of much more shocking
government action. See United States v. Smith, 924 F.2d 889, 897 (9th Cir. 1991);
United States v. Emmert, 829 F.2d 805, 811-13 (9th Cir. 1987); United States v.
Simpson, 813 F.2d 1462, 1465-71 (9th Cir. 1987); United States v. Williams, 791
F.2d 1383, 1386-87 (9th Cir. 1986). Accordingly, we affirm the denial of the
motion to dismiss.
The defendant also argues that the prosecutor improperly appealed to the
jury’s emotions during his closing argument. Because “the defendant object[ed] to
[the] alleged prosecutorial misconduct, the standard of review is abuse of
discretion.” United States v. Steele, 298 F.3d 906, 910 (9th Cir. 2002). During his
closing, the prosecutor reviewed evidence that the defendant was accompanied by
children when she sold drugs to an undercover BIA agent. Occasionally he went
further. He remarked, “Kids get in the way of dealing meth, it turns out. . . . Ladies
1
Because the Government voluntarily decided not to introduce the
defendant’s confession at trial, she was not prejudiced at trial by any inappropriate
coercive tactics.
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and gentlem[en], she picks up her kids on the way to a meth deal.” The prosecutor
sounded a similar note during his rebuttal, telling the jury to take the charges very
seriously because “[t]hree of the sales are taking place around a swarm of children.
One case she brings her 12 to 13 year old daughter, another case she brings three
kids, the last one she brings her son.”
The Ninth Circuit has “consistently cautioned against prosecutorial
statements designed to appeal to the passions, fears and vulnerabilities of the jury.”
United States v. Weatherspoon, 410 F.3d 1142, 1149 (9th Cir. 2005). A prosecutor
may not urge a jury to convict for reasons unrelated to the defendant’s guilt; for
example, to preserve civil order or deter future lawbreaking. See id. (quoting
United States v. Koon, 34 F.3d 1416, 1443 (9th Cir. 1994)). Here, the prosecutor
implicitly criticized the defendant for endangering children and being a bad
mother. His comments were irrelevant and improper. See United States v. Nobari,
574 F.3d 1065, 1077 (9th Cir. 2009) (holding that prosecutor improperly appealed
to the jury to convict the defendant because there was a small boy present during
one of the drug transactions).
Prosecutorial misconduct does not require reversal if it was harmless. Id. at
1081-82. “When prosecutorial conduct is called in question, the issue is whether,
considered in the context of the entire trial, that conduct appears likely to have
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affected the jury's discharge of its duty to judge the evidence fairly.” United States
v. Simtob, 901 F.2d 799, 806 (9th Cir. 1990). The prosecutor’s inappropriate
remarks here “were isolated statements, and they were minimal in comparison with
the weight of the evidence presented against” the defendant. Hovey v. Ayers, 458
F.3d 892, 912 (9th Cir. 2006). Because it is unlikely that the prosecutor’s
misconduct affected the jury’s verdict, that misconduct was harmless.
AFFIRMED.
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