United States v. Richard St. Marks , 460 F. App'x 682 ( 2011 )

FILED
NOT FOR PUBLICATION DEC 02 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30010
Plaintiff - Appellee, D.C. No. 4:10-cr-00063-SEH-1
v.
MEMORANDUM*
RICHARD SILVERWHIP ST. MARKS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted November 14, 2011
Portland, Oregon
Before: FISHER, PAEZ, and CLIFTON, Circuit Judges.
Richard St. Marks appeals his conviction for burglary. Without deciding
whether the district court’s jury instructions correctly described Montana law’s
knowledge requirement, we hold that any error in the instructions was harmless.
We also hold that the district court did not abuse its discretion by interrupting the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
defense counsel’s closing statement to strike what the court considered a “golden
rule argument.” We therefore affirm.
Defendant distinguishes between knowingly and unlawfully entering the
victims’ house and knowing of the unlawfulness of that entry, but since the
government proved both kinds of knowledge beyond a reasonable doubt, that
distinction makes no difference in this case. Defendant concedes that he did not in
fact have permission to enter the victims’ house and overwhelming evidence shows
he knew that: the door to the house was forced open, Defendant threatened the
house’s inhabitants, and Defendant fled when he believed the police were on their
way. Moreover, there is no suggestion that Defendant’s entry was the result of
mistake or incapacity. Because the circumstances leave no reasonable doubt that
Defendant knew his entry was unauthorized, we hold that any misstatement of
Montana law’s knowledge requirement was harmless. See United States v. Cherer,
513 F.3d 1150, 1155 (9th Cir. 2008).
Defendant also challenges the district court’s interruption of his attorney’s
request during closing statement that the jurors consider whether they would
“convict a family member based on the testimony of [the government’s]
witnesses.” The parties dispute whether or not this statement was a prohibited
“golden rule argument,” a label that is more typically attached to requests by a
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prosecutor or plaintiff’s attorney that the jurors step into the shoes of the victim or
plaintiff. See, e.g. Fields v. Woodford, 309 F.3d 1095, 1109 (9th Cir. 2002).
We need not decide that issue. We review for abuse of discretion the district
court’s restrictions on closing argument, and will not overturn a conviction based
on interruption of closing argument unless “the record ‘discloses actual bias on the
part of the trial judge or leaves the reviewing court with an abiding impression that
the judge’s remarks . . . projected to the jury an appearance of advocacy or
partiality.’” United States v. Mares, 940 F.2d 455, 464 (9th Cir. 1991) (quoting
United States v. Mostella, 802 F.2d 358, 361 (9th Cir. 1986)). Here, the record
discloses no actual or apparent bias. The district court’s remarks did not chastise
defense counsel or derail his presentation. The court simply noted that the
argument was out of bounds and then allowed him to proceed. Defense counsel
points to the fact that the district court reprimanded him the previous day on his
handling of an unrelated issue, but those remarks conveyed no animus against
defense counsel or his client, and were in any case made outside the presence of
the jury. We therefore hold that the district court did not abuse its discretion,
irrespective of whether defense counsel’s statements may have crossed into
forbidden golden rule territory.
AFFIRMED.
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