United States v. John Maloney ( 2012 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA ,                        No. 11-50311
    Plaintiff-Appellee,
    D.C. No.
    v.                           3:10-cr-02803-
    DMS-1
    JOHN R. MALONEY ,
    Defendant-Appellant.                   OPINION
    Appeal from the United States District Court
    for the Southern District of California
    Dana M. Sabraw, District Judge, Presiding
    Argued and Submitted
    July 13, 2012—Pasadena, California
    Filed November 14, 2012
    Before: Ronald Lee Gilman,* Richard C. Tallman, and
    N. Randy Smith, Circuit Judges.
    Opinion by Judge N.R. Smith;
    Dissent by Judge Gilman
    *
    The Honorable Ronald Lee Gilman, Senior United States Circuit Judge
    for the Sixth Circuit, sitting by designation.
    2                 UNITED STATES V . MALONEY
    SUMMARY**
    The panel affirmed a jury conviction for possession of
    marijuana with intent to distribute.
    The panel held:
    • The district court did not abuse its discretion in denying
    the defense surrebuttal summation, because the prosecution’s
    statements in rebuttal summation addressed the arguments
    made in defense counsel’s closing argument and were based
    on permissible inferences from the record.
    • The district court did not abuse its discretion in denying
    the defendant’s motion to excuse one of the prospective jurors
    for cause, because finding a prospective juror (who initially
    admits bias) to be impartial is proper if the prospective juror
    “ultimately asserts an ability to be fair and impartial.”
    • Even assuming de novo review, the district court did not
    err in denying defendant’s proposed jury instruction, because
    jury instructions that indicate that the jury may “consider
    character evidence along with all other evidence upon the
    issue of guilt” sufficiently instruct the jury that character
    evidence may create reasonable doubt of guilt.
    Dissenting, Judge Gilman wrote that the district court
    abused its discretion by refusing the defendant’s request to
    respond in a surrebuttal to the government’s “lack-of-
    **
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    UNITED STATES V . MALONEY                    3
    luggage” argument that was raised for the first time during
    rebuttal; and that the error warrants a new trial.
    COUNSEL
    John C. Lemon, San Diego, California, for Defendant-
    Appellant.
    Bruce R. Castetter and Steve Miller (argued), Assistant U.S.
    Attorneys, for Plaintiff-Appellee.
    OPINION
    John Maloney appeals his jury conviction and sentence for
    possession of marijuana with intent to distribute in violation
    of 
    21 U.S.C. § 841
    (a)(1). We have jurisdiction pursuant to
    
    28 U.S.C. § 1291
    , and we affirm.
    The district court did not abuse its discretion in denying
    the defense surrebuttal summation, because the prosecution’s
    statements in rebuttal summation addressed the arguments
    made in defense counsel’s closing argument and were based
    on permissible inferences from the record. The prosecution
    only strays from the proper bounds of rebuttal summation
    when it impermissibly raises new arguments in rebuttal
    summation. See United States v. Taylor, 
    728 F.2d 930
    , 937
    (7th Cir. 1984). The prosecution impermissibly raises new
    arguments beyond the proper scope of rebuttal summation
    when the door has not been opened by defense counsel’s
    summation or when the prosecution’s arguments are not
    based on reasonable inferences from the record. See United
    4               UNITED STATES V . MALONEY
    States v. Sayetsitty, 
    107 F.3d 1405
    , 1409–10 (9th Cir. 1997);
    United States v. Gray, 
    876 F.2d 1411
    , 1417–18 (9th Cir.
    1989). Further, the district court did not abuse its discretion
    in denying defendant’s motion to excuse one of the
    prospective jurors for cause, because finding a prospective
    juror (who initially admits bias) to be impartial is proper if the
    prospective juror “ultimately asserts an ability to be fair and
    impartial.” United States v. Martinez-Salazar, 
    146 F.3d 653
    ,
    656 (9th Cir. 1998), rev’d on other grounds, 
    528 U.S. 304
    (2000). Lastly, even assuming de novo review, the district
    court did not err in denying defendant’s proposed jury
    instruction, because jury instructions that indicate that the jury
    may “consider character evidence along with all other
    evidence upon the issue of guilt” sufficiently instruct the jury
    that character evidence may create reasonable doubt of guilt.
    See Carbo v. United States, 
    314 F.2d 718
    , 746 (9th Cir.
    1963).
    I. BACKGROUND
    On June 17, 2010, John Maloney drove a Freightliner
    tractor-trailer to the Highway 78 Border Patrol checkpoint in
    Imperial County, California. At the checkpoint, a detector
    canine (Aja-D) alerted to the tractor-trailer. Maloney agreed
    to exit the tractor-trailer so that the canine could perform a
    second sniff around the vehicle. Aja-D again alerted to the
    sleeping area (located in the back of the cab). Maloney then
    agreed to a physical search of the tractor-trailer. Border
    Patrol Agents found 112 sealed packages (weighing a total of
    146.06 kilograms or 321.33 pounds) of marijuana in the bunk
    area behind the driver’s seat. The top bunk contained nine
    bricks of marijuana in a black garbage bag. Agents found the
    remaining bricks in a compartment under the bottom bunk.
    UNITED STATES V . MALONEY                     5
    A grand jury indicted Maloney for knowingly and
    intentionally possessing, with intent to distribute 100
    kilograms or more of marijuana in violation of 
    21 U.S.C. § 841
    (a)(1). A jury trial followed, and the jury found
    Maloney guilty of the indicted offense. On August 5, 2011,
    the district court entered judgment and sentenced Maloney to
    sixty-three months imprisonment. Maloney filed a timely
    appeal.
    Maloney appeals his conviction by arguing that (1) the
    district court abused its discretion in denying his motion to
    excuse a juror for cause; (2) the district court abused its
    discretion by refusing Maloney’s proposed jury instruction
    regarding the ability of the jury to find reasonable doubt based
    on credibility evidence; (3) the prosecution raised new
    arguments in rebuttal and the district court committed
    reversible error by refusing his request for surrebuttal based
    on those new arguments; and (4) the cumulative effect of the
    errors warrants reversal.
    II. DISCUSSION
    A. Jury Selection
    1. Legal Standards
    When reviewing a district court’s finding of juror
    impartiality “the deference due to district courts is at its
    pinnacle: ‘A trial court’s findings of juror impartiality may be
    overturned only for manifest error,’” Skilling v. United
    States, 
    130 S. Ct. 2896
    , 2923 (2010) (quoting Mu’Min v.
    Virginia, 
    500 U.S. 415
    , 428 (1991)), or in other words, for
    abuse of discretion, United States v. Gonzalez, 
    214 F.3d 1109
    ,
    6               UNITED STATES V . MALONEY
    1112 (9th Cir. 2000); United States v. Poschwatta, 
    829 F.2d 1477
    , 1484 (9th Cir. 1987), overruled on other grounds
    recognized by United States v. Powell, 
    936 F.2d 1056
    , 1064
    n.3 (9th Cir. 1991). Although “[d]oubts regarding bias must
    be resolved against the juror,” Gonzalez, 
    214 F.3d at 1114
    (quoting Burton v. Johnson, 
    948 F.2d 1150
    , 1158 (10th Cir.
    1991)) (internal quotation marks omitted), “[t]he defendants
    bear the burden . . . of showing that [the prospective juror]
    was actually biased, and that the district court abused its
    discretion or committed manifest error when it failed to
    excuse her for cause,” United States v. Alexander, 
    48 F.3d 1477
    , 1484 (9th Cir. 1995). If the district court abuses its
    discretion, “[t]he presence of a biased juror cannot be
    harmless; the error requires a new trial without a showing of
    actual prejudice.” Gonzalez, 
    214 F.3d at 1111
     (quoting Dyer
    v. Calderon, 
    151 F.3d 970
    , 973 n.2 (9th Cir. 1998)) (internal
    quotation marks omitted).
    “The Sixth Amendment secures to criminal defendants the
    right to trial by an impartial jury,” Skilling, 
    130 S. Ct. at
    2912–13, and “[t]he bias or prejudice of even a single juror is
    enough to violate that guarantee,” Gonzalez, 
    214 F.3d at 1111
    . “Challenges for cause are the means by which partial
    or biased jurors should be eliminated” in order to protect the
    Sixth Amendment guarantee. 
    Id.
     “To disqualify a juror for
    cause requires a showing of either actual or implied bias
    . . . .” 
    Id.
     “Actual bias is ‘bias in fact’—the existence of a
    state of mind that leads to an inference that the person will not
    act with entire impartiality.” 
    Id. at 1112
     (alteration omitted)
    (quoting Unites States v. Torres, 
    128 F.3d 38
    , 43 (2d Cir.
    1997)) (internal quotation marks omitted).
    UNITED STATES V . MALONEY                    7
    The district court does not abuse its discretion (or
    manifestly err) when it finds a prospective juror who initially
    admits bias to be impartial after the prospective juror
    “ultimately asserts an ability to be fair and impartial.”
    Martinez-Salazar, 
    146 F.3d at 656
    .
    2. Pertinent Facts
    During voir dire, the district court asked the prospective
    jurors, “Do you believe that you would be predisposed in
    favor of law enforcement or—in other words, that they start
    with . . . the thumb on the scale and they have a favorable
    view in your mind; or do you feel that you can fairly evaluate
    their testimony based on their testimony?” In response to this
    question, prospective juror six and the court had the following
    exchange:
    Prospective Juror: I just want to put it out
    there, I had a lot of interaction with the San
    Diego Sheriff’s Department. I would be
    predisposed to – you know, like what he was
    saying, because of their training, my
    experiences I have had with them, you know,
    all of my interactions I have had with the San
    Diego Sheriff’s Department, more favorable.
    But I still think I could be impartial as far as,
    you know, carrying the weight. I just had to
    put it out there, I would be predisposed to
    have favorable.
    The Court: Just so I am clear. If anyone from
    law enforcement took the stand, are you
    saying he or she starts a leg up on the other
    8           UNITED STATES V . MALONEY
    witnesses; or do you feel like they are just like
    any other witness and you have got to evaluate
    what they are going to say?
    Prospective Juror: For me there might be –
    well, they have a leg up.
    ....
    The Court: Right. Do you believe that as
    police officers or law enforcement that they –
    these individuals are subject to the same
    frailties that we all are –
    Prospective Juror: Yes.
    The Court: – Regardless of our position?
    With that belief in mind, do you feel that
    when someone from law enforcement takes
    the stand you would give them the benefit of
    the doubt; or would you start on a level
    playing field and determine, based on what
    they are saying, their responses to the
    questions, their ability to perceive or hear the
    things they are testifying to, those types of
    things, you would be able to determine
    whether you believed that testimony in whole
    or in part or not at all?
    Prospective Juror: I think I could, you know,
    put it to a level playing field, even though my
    experiences in the past, you know, the role I
    am playing right now.
    UNITED STATES V . MALONEY                    9
    The Court: Can you set aside –
    Prospective Juror: I can set that aside and be
    more impartial.
    The Court: So do you feel that you can set
    aside that prior experience and just evaluate
    each witness as he or she takes the stand?
    Prospective Juror: Right. Yes.
    The Court: Do you feel you can do that?
    Prospective Juror: Yes, sir.
    Maloney’s defense counsel moved to strike several jurors
    for cause, including prospective juror six. Defense counsel
    noted that prospective juror six stated that he would give law
    enforcement “a head start in terms of weight” compared to
    other witnesses, or a “leg up. And then later he backed off of
    that a little bit.” As such, defense counsel thought that he
    should be excused for cause.
    The district court denied the challenge of prospective
    juror six for cause, because
    [m]any jurors say things like, generally I
    believe law enforcement because they are
    trained observers, they don’t have a bias or a
    stake in the outcome.
    Then, in my mind, the question is, is that
    just a general observation or are they really
    10             UNITED STATES V . MALONEY
    going to evaluate that testimony in a
    predisposed way?
    I understood all three [of the jurors
    challenged for cause] to say that they
    generally have favorable experiences with law
    enforcement, they generally believe law
    enforcement, for the reasons I have indicated.
    But they were also very clear that they
    understand law enforcement witnesses, just
    like any other witness, has to be evaluated
    based on his or her presentation in court and
    objective criteria to determine credibility.
    And would not be they would not be – giving
    these witnesses favor[i]tism simply because
    they represent law enforcement.
    So for those reasons I would respectfully
    deny the challenges.
    Thereafter, Maloney used his ten peremptory challenges,
    but prospective juror six was not challenged. Prospective
    juror six was seated on the jury as juror four (hereinafter
    “Juror 4”).
    3. Analysis
    Juror 4 initially indicated bias in favor of law
    enforcement. However, Juror 4 ultimately definitively and
    unequivocally stated that he could set aside any partiality to
    law enforcement. Juror 4 stated: (1) that he thought law
    enforcement officers are subject to the same frailties as all
    UNITED STATES V . MALONEY                         11
    people; (2) that he thought he could put the testimony of law
    enforcement on a level playing field as other witness
    testimony; and (3) that, as to whether he could set aside any
    bias that might come from his past experience with law
    enforcement, “I can set that aside and be more impartial.”
    Most importantly, the second-to-last question of the court
    was, “So do you feel that you can set aside that prior
    experience and just evaluate each witness as he or she takes
    the stand?” Juror 4 responded: “Right. Yes.” Then the court
    ended by asking, “Do you feel you can do that?” Juror 4
    responded: “Yes, sir.” Therefore, the district court did not
    abuse its discretion in finding Juror 4 impartial and denying
    Maloney’s motion to excuse him for cause because Juror 4
    “ultimately assert[ed] an ability to be fair and impartial.” See
    Martinez-Salazar, 
    146 F.3d at 656
    . A few of our prior cases
    support our decision that the district court here did not abuse
    its discretion in refusing to excuse Juror 4 for cause.
    In Alexander, two prospective jurors stated that they had
    been robbery victims. 
    48 F.3d at 1482
    . The first prospective
    juror stated that “he ‘believed’ he nonetheless could be fair
    and impartial despite the subject matter of the case—armed
    bank robbery.” 
    Id.
     The district court did not abuse its
    discretion for finding him impartial, because, even though he
    “initially said he ‘believed’ he could be impartial, . . . he
    ultimately stated definitively that he could separate his
    experience from the facts of the case and act fairly.”1 
    Id.
     at
    1
    The statements we found definitive and unequivocal were as follows:
    THE COURT: . . . Do you feel that you can be fair and
    impartial in this kind of case or not?
    JUROR AUSTIN: I believe so.
    12               UNITED STATES V . MALONEY
    1484. The second prospective juror indicated that her
    husband had been held at gunpoint. 
    Id.
     at 1483 n.2. After
    being asked whether her husband’s experience would impede
    her from being impartial she responded, “I don’t believe so,
    no.” 
    Id.
     Then, after being asked whether she could set aside
    her feelings and be impartial, she stated, “I believe so, yes.”
    
    Id.
     After noting that this was a close call, we held that the
    district court did not abuse its discretion, because deference
    is due the district court, it was able to view her demeanor and
    assess her credibility, and the defendant failed to meet his
    burden of proof. 
    Id. at 1484
    .
    In United States v. Daly, the prospective juror indicated
    that his former employment may impair his partiality.
    
    716 F.2d 1499
    , 1507 (9th Cir. 1983). The court followed up
    by asking whether he could set that aside. 
    Id.
     He repeatedly
    stated, “I will try.” 
    Id.
     Ultimately, the court asked: “Well, do
    you think you could do that? That is only a decision that you
    can make . . . .” 
    Id.
     The prospective juror responded, “Okay,
    I will do it.” 
    Id.
     We determined that reversal was not
    required, because the defendant failed to show that the
    prospective juror was actually biased. 
    Id.
    ....
    THE COURT: Do you feel-and you are probably the
    only person who can tell us this. Do you feel you can
    separate that out and be fair when you hear the facts of
    a case that are somewhat similar to you?
    JUROR AUSTIN: Yes sir.
    Alexander, 
    48 F.3d at
    1482 n.1.
    UNITED STATES V . MALONEY                    13
    Conversely, in Martinez-Salazar, the district court abused
    its discretion by not excusing a juror for cause, “because [the
    juror] did not and would not affirmatively state that he could
    lay aside his admitted bias in favor of the prosecution.”
    Martinez-Salazar, 
    146 F.3d at 656
    . The juror “clearly
    acknowledged this bias, even after being instructed by the
    district court that it was ‘contrary to our whole system of
    justice.’ He never retreated from his statement of bias; he
    only cryptically stated that he understood the presumption of
    innocence ‘in theory.’” 
    Id.
    Comparing Juror 4’s statements to the situations in the
    cases just recounted, the district court did not abuse its
    discretion in denying defendant’s motion to excuse Juror 4 for
    cause, because Juror 4 ultimately stated that he could be
    impartial.
    B. Jury Instructions
    1. Legal Standards
    “We review de novo the denial of a jury instruction based
    on a question of law.” United States v. Castagana, 
    604 F.3d 1160
    , 1163 n.2 (9th Cir. 2010) (citing United States v.
    Wiseman, 
    274 F.3d 1235
    , 1240 (9th Cir. 2001)). This
    includes whether the jury instructions adequately cover the
    defendant’s theory of defense. United States v. Duran,
    
    59 F.3d 938
    , 941 (9th Cir. 1995). “It is not reversible error,
    however, to reject a defendant’s proposed instruction on his
    theory of the case if other instructions, in their entirety,
    adequately cover that defense theory.” 
    Id.
     (alteration in
    original omitted) (quoting United States v. Dees, 
    34 F.3d 838
    ,
    842 (9th Cir.1994)). We review the district court’s
    14              UNITED STATES V . MALONEY
    formulation of the jury instructions for abuse of discretion.
    United States v. Woodley, 
    9 F.3d 774
    , 780 (9th Cir. 1993).
    “We examine whether or not the instructions taken as a whole
    were misleading or represented a statement inadequate to
    guide the jury’s deliberations.” United States v. Powell,
    
    955 F.2d 1206
    , 1210 (9th Cir. 1991) (internal quotation marks
    omitted).
    “Neither the prosecution nor a defendant is entitled to the
    particular language requested in a proposed jury instruction.”
    
    Id.
     “A trial court is given substantial latitude in tailoring jury
    instructions so long as they fairly and adequately cover the
    issues presented.” 
    Id.
     (internal quotation marks omitted).
    Character “testimony alone, in some circumstances, may
    be enough to raise a reasonable doubt of guilt and . . . in the
    federal courts a jury in a proper case should be so instructed.”
    Michelson v. United States, 
    335 U.S. 469
    , 476 (1948) (citing
    Edgington v. United States, 
    164 U.S. 361
    , 366 (1896)). Ninth
    Circuit law indicates that the requirement set forth by the
    Supreme Court is met by “[i]nstructing the jury that good-
    character testimony, ‘like other testimony,’ may generate a
    reasonable doubt as to guilt, justifying an acquittal . . . .”
    Smith v. United States, 
    305 F.2d 197
    , 206 (9th Cir. 1962);
    accord Carbo, 
    314 F.2d at 746
    . The Ninth Circuit does not
    “require any more than that the jury be freely permitted to
    consider character evidence along with all other evidence
    upon the issue of guilt.” Carbo, 
    314 F.2d at 746
    .
    2. Pertinent Facts
    Maloney called three character witnesses that testified to
    his honesty, truthfulness, and integrity. Based on these
    UNITED STATES V . MALONEY                    15
    witnesses, Maloney submitted the following proposed jury
    instruction:
    Mr. Maloney presented evidence to show that
    he enjoys a reputation for honesty,
    truthfulness, and integrity in his community.
    Such evidence may indicate to you that it is
    improbable that a person of such character
    would commit the crimes charged, and,
    therefore, cause you to have a reasonable
    doubt as to his guilt. You should consider any
    evidence of Mr. Maloney’s good character
    along with all the other evidence in the case
    and give it such weight as you believe it
    deserves. If, when considered with all the
    other evidence presented during this trial, the
    evidence of Mr. Maloney’s good character
    creates a reasonable doubt in your mind as to
    his guilt, you should find him not guilty.
    The district court refused to give the instruction. Instead,
    the court gave the former 2003 Ninth Circuit instruction No.
    4.4, which states: “You have heard evidence of the
    defendant’s character for truthfulness, honesty and law
    abidingness. In deciding this case, you should consider that
    evidence together with and in the same manner as all the other
    evidence in the case.” The court indicated that it was
    unnecessary to even give the former instruction 4.4, because
    in 2010, the Ninth Circuit Jury Committee indicated that it
    believed a jury instruction regarding character evidence of the
    defendant adds nothing to “the general instruction regarding
    the consideration and weighing of evidence, which is set out
    16             UNITED STATES V . MALONEY
    in, among other places, instruction No. 8.” See Model Crim.
    Jury Instr. 9th Cir. 4.4 (2010).
    3. Analysis
    Maloney argues that the district court erred, because the
    court’s instructions failed “to explain that evidence of [the]
    defendant’s good character may create reasonable doubt of
    guilt.” In other words, Maloney contends that the district
    court’s formulation of the jury instructions did not adequately
    present the nexus between good character and reasonable
    doubt. Maloney’s argument seems to be about the language
    and formulation of the jury instructions, which should be
    reviewed for an abuse of discretion. See Woodley, 
    9 F.3d at 780
    ; United States v. Marabelles, 
    724 F.2d 1374
    , 1383 (9th
    Cir. 1984) (“Finally, although a criminal defendant is entitled
    to an instruction regarding his theory of the case, challenges
    which merely pertain to the trial judge’s language or
    formulation of the charge are reversible only for an abuse of
    discretion.”). Maloney makes a standard of review argument
    that urges us to apply a de novo standard, but we find the
    argument confusing. Nonetheless, a decision as to the proper
    standard of review will not control the outcome, because,
    even under de novo review, the district court did not err.
    There was no error, because the district court’s jury
    instructions did not mislead the jury or inaccurately state the
    law. See Powell, 955 F.2d at 1210. Instead, reviewing the
    instructions as a whole, we find that they indicated “that
    good-character testimony, ‘like other testimony,’ may
    generate a reasonable doubt as to guilt, justifying an
    acquittal,” Smith, 
    305 F.2d at 206
    , and that the jury was
    UNITED STATES V . MALONEY                     17
    “free[] . . . to consider character evidence along with all other
    evidence upon the issue of guilt,” Carbo, 
    314 F.2d at 746
    .
    The district court instructed the jury that, “[i]f after a
    careful and impartial consideration of all the evidence, you
    are not convinced beyond a reasonable doubt that the
    defendant is guilty, it is your duty to find the defendant not
    guilty.” The court instructed that reasonable doubt “may arise
    from a careful and impartial consideration of all the
    evidence.” The district court also indicated that “all the
    evidence” includes character testimony: “You have heard
    evidence of the defendant’s character for truthfulness, honesty
    and law abidingness. In deciding this case, you should
    consider that evidence together with and in the same manner
    as all the other evidence in the case.” Lastly, the jury
    instructions state that the jury must consider all the
    instructions and that they are all important. The district
    court’s instructions “fairly and adequately cover the issues
    presented.” See Powell, 955 F.2d at 1210 (internal quotation
    mark omitted).
    C. Closing Arguments
    1. Legal Standards
    The district court “is given great latitude in . . . limiting
    the scope of closing summations.” Herring v. New York,
    
    422 U.S. 853
    , 862 (1975). The district court has broad
    discretion to “ensure that argument does not stray unduly
    from the mark, or otherwise impede the fair and orderly
    conduct of the trial.” 
    Id.
     “[T]he trial court is presumed to be
    in a better position . . . to gauge” the appropriateness of
    arguments made during closing summations. See Interstate
    18              UNITED STATES V . MALONEY
    Markings, Inc. v. Mingus Constructors, Inc., 
    941 F.2d 1010
    ,
    1015 (9th Cir. 1991). As such, it is left to the district court’s
    sound discretion, on a case-by-case basis, to determine
    whether a defendant should be granted surrebuttal summation.
    United States v. Garcia, 
    94 F.3d 57
    , 63 (2d Cir. 1996). We
    therefore review a district court’s decision to deny surrebuttal
    for an abuse of discretion. See United States v. Butcher,
    
    926 F.2d 811
    , 817 (9th Cir. 1991) (“We review a district
    court’s rulings on the admission or exclusion of surrebuttal
    evidence for abuse of discretion.”).
    In deciding whether a district court has abused its
    discretion in denying surrebuttal, we must recognize that
    prosecutors are “granted reasonable latitude to fashion closing
    arguments.” Gray, 
    876 F.2d at 1417
    . “Although it is
    improper to base closing arguments upon evidence not in the
    record, prosecutors are free to argue reasonable inferences
    from the evidence.” 
    Id.
     (citation omitted). “During closing
    argument, ‘[p]rosecutors have considerable leeway to strike
    “hard blows” based on the evidence and all reasonable
    inferences from the evidence.’” United States v. Hermanek,
    
    289 F.3d 1076
    , 1100 (9th Cir. 2002) (alteration in original)
    (quoting United States v. Henderson, 
    241 F.3d 638
    , 652 (9th
    Cir. 2000)). However, in the specific context of rebuttal
    summation, “a prosecutor cannot use rebuttal to put forth new
    arguments, but is restricted to responding to the points made
    by the defense counsel in closing argument.” Taylor,
    
    728 F.2d at 937
    .
    Notwithstanding, “[i]t is ‘fair advocacy’ for the
    prosecution to advance an argument in rebuttal to which the
    defendant has opened the door.” Gray, 
    876 F.2d at 1417
    (quoting United States v. Lopez, 
    803 F.2d 969
    , 972 (9th Cir.
    UNITED STATES V . MALONEY                    19
    1986)). Therefore, a district court abuses its discretion by not
    allowing defendant surrebuttal if the prosecution raises new
    issues on rebuttal to which the defense has not opened the
    door in its closing argument and which are not based on
    reasonable inferences from the record. See 2A Charles Alan
    Wright, et al., Federal Practice & Procedure, Rules of
    Criminal Procedure § 476 n.4 (4th ed.) (“Defendant has no
    right of surrebuttal where the prosecution has not raised any
    new issues in its rebuttal.” (citing United States v. Sarmiento,
    
    744 F.2d 755
    , 766 (11th Cir. 1984)); Sayetsitty, 
    107 F.3d at
    1409–10 (noting that the prosecution does not make improper
    rebuttal comments when they embrace reasonable inferences
    from the record and defense counsel invited a reply in closing
    argument).
    The district court’s underlying determinations of whether
    the prosecution’s rebuttal argument responded to points made
    by the defendant in closing argument and whether the
    prosecution’s points were based on reasonable inferences are
    afforded deference. Gray, 
    876 F.2d at 1417
     (“We review a
    district court’s determination that rebuttal statements
    constitute permissible inferences for an abuse of discretion,”
    and “[w]e review district court determinations regarding the
    proper scope of rebuttal closing argument for an abuse of
    discretion.”). The district court’s decisions must be “(1)
    illogical, (2) implausible, or (3) without support in inferences
    that may be drawn from the facts in the record” to be an abuse
    of discretion. United States v. Hinkson, 
    585 F.3d 1247
    , 1262
    (9th Cir. 2009) (en banc) (internal quotation marks omitted).
    Our application of that highly deferential standard of review
    differs from the dissent’s, which relies on case law that did
    not apply the Hinkson standard, which our en banc panel
    clarified in 2009.
    20                UNITED STATES V . MALONEY
    Even if a district court abuses its discretion in denying a
    defendant’s request for surrebuttal, harmless error review
    applies. See United States v. Reyes, 
    660 F.3d 454
    , 461 (9th
    Cir. 2011). In deciding whether the denial of surrebuttal was
    harmless error “we consider in the context of the entire trial
    ‘whether it is more probable than not that the prosecutor’s
    conduct materially affected the fairness of the trial.’” 
    Id.
    (quoting United States v. McKoy, 
    771 F.2d 1207
    , 1212 (9th
    Cir. 1985)).
    2. Pertinent Facts
    In Maloney’s opening statement, he set forth his defense
    that he did not know the marijuana was in the cab of his truck
    and that he was set up by Robert Hernandez. During trial,
    Maloney testified that he had no knowledge of the marijuana.
    Essentially, Maloney testified about the events surrounding
    the arrest and that Robert Hernandez must have hidden the
    marijuana in the truck without Maloney’s knowledge.
    Maloney testified that his part-time employer2 referred
    him to Hernandez, who was looking for a truck driver.
    Maloney had driven large trucks in the late 1980s and early
    1990s. Upon meeting Hernandez, Hernandez proposed to
    have Maloney drive a truck as an independent contractor.
    Maloney would purchase and use one of Hernandez’s old
    trucks and slowly pay it off as he worked. Maloney told
    Hernandez he had a commercial permit but not a commercial
    license. Therefore, Hernandez put Maloney’s name on the
    side of the truck, and Maloney practiced driving the truck.
    2
    The record does not indicate what type of work Maloney was doing for
    his part-time employer.
    UNITED STATES V . MALONEY                    21
    Maloney and Hernandez went to the “trucking insurance
    place” twice, the first time to fill out paperwork and the
    second time to get plates and a registration sticker. Maloney
    stated that the insurance was never in his name. Later,
    Hernandez accompanied Maloney to Maloney’s commercial
    driving test, but he failed.
    Maloney testified that a week after the failed test,
    “[Hernandez] called [Maloney] and said that he had a trip, a
    short run. That one of his drivers’ [Rick Garcia] . . . truck[s]
    had broke[n] down. And because he had a license he could
    use [Maloney’s] truck and [Maloney] could get some
    experience.” Hernandez told Maloney that Garcia would be
    going with Maloney to Riverside, California, to pick up a load
    of Clorox and deliver it to Las Vegas, Nevada. Maloney
    agreed to go.
    Garcia and Maloney used the truck to transport Clorox
    from Riverside to Las Vegas. They arrived in Las Vegas in
    the late afternoon, so they stayed at a truck stop in Las Vegas.
    The next morning they dropped off the load. Hernandez
    called that morning and requested they drive to El Centro,
    California, to pick up a new load, because he could not find
    a load in Las Vegas.
    Garcia and Maloney then drove to El Centro and met
    Hernandez at a truck stop. However, Hernandez said that he
    had not procured a job yet in El Centro, so he put Maloney up
    in a hotel for two nights. Hernandez then told Maloney that
    he had a load in Blythe, California, and instructed him to
    drive alone to Blythe and call Hernandez for the address when
    he arrived. Garcia was not present, and Maloney did not
    know where Garcia was or why he was absent.
    22              UNITED STATES V . MALONEY
    Before leaving for Blythe, Maloney inspected the truck
    but not the cab. It was on his way to Blythe that Maloney
    stopped at the checkpoint and was arrested. Thereafter,
    Maloney and investigating agents were unable to contact
    Hernandez.
    On re-direct, Maloney introduced the commercial driving
    permit into evidence; it was dated April 12, 2010. Maloney
    also introduced into evidence an insurance liability certificate
    for the truck. The insurance certificate listed Andrew David
    Gil as the driver of the truck.
    Then, on re-cross examination, Maloney testified that he
    met Hernandez in early May or June. The Government also
    verified that Maloney obtained the permit in April. Next, the
    Government verified that Maloney testified that he went to
    the insurance business to get insurance.            Then the
    Government asked how many days it was before he left for
    Las Vegas that he visited the insurance business, but Maloney
    could not remember. The Government asked who went with
    him to the insurance business, and Maloney said Hernandez
    drove him there. Lastly, the Government continued by asking
    who Andrew David Gil was, but Maloney did not know.
    During closing argument, Maloney’s counsel reiterated
    the defense theory and claimed that the evidence showed that
    he did not know about the marijuana. Maloney’s counsel
    went through Maloney’s testimony and other evidence and
    asserted that it showed that Maloney was set up and had no
    knowledge of the marijuana.
    After giving Maloney’s interpretation of the evidence,
    Maloney’s counsel urged: “What [Maloney] testified to
    UNITED STATES V . MALONEY                  23
    yesterday was reasonable and it was credible. And the
    Government is trying to say it is completely unreasonable, it
    is preposterous.” Then counsel proffered reasons why the
    “work-to-own” idea corroborated Maloney’s testimony,
    because it was obviously used to get Maloney to drive for
    Hernandez and limit Hernandez’s risk. Counsel continued by
    stating:
    First of all we know, inferentially, the last
    person to have the truck before John Maloney
    got in it in El Centro and drove it to the
    checkpoint was obviously the person using the
    name Robert Hernandez. Robert Hernandez
    could easily have taken whatever documents
    John had in that truck and gotten rid of them
    for whatever reason, and John would not
    necessarily have been aware of that – likely
    would not have been aware of that.
    Maloney’s counsel concluded by arguing that “[Maloney’s]
    testimony was palpable, visceral, and it was real.” Further,
    Maloney’s counsel stated: “Did the Government prove him a
    liar beyond a reasonable doubt? Was there a got-you moment
    there where he gets nailed? Absolutely not. [Maloney] told
    you what happened to him, and he told you in a credible,
    reasonable way.”
    In rebuttal closing argument, the Government discussed
    what evidence was presented but then turned to what evidence
    was missing in order to disprove Maloney’s theory of the case
    and prove his testimony unworthy of belief.              The
    Government’s comments and arguments on the “missing”
    evidence are pertinent to this appeal.
    24              UNITED STATES V . MALONEY
    First, after referencing Maloney’s argument that someone
    else had access to the truck and could have taken documents,
    the Government noted that by taking the insurance certificate
    and registration document Hernandez would increase the
    likelihood of having law enforcement find the marijuana.
    Similarly, the Government noted the required trip log and
    cargo manifest were also missing from the truck. Further, to
    cast doubt on Maloney’s credibility, the Government pointed
    out that the insurance certificate (which was missing from the
    truck but offered into evidence during Maloney’s testimony)
    was dated June 14, 2010, the day he left for Las Vegas. The
    Government called this the “other kicker.” The Government
    also pointed out Andrew David Gil’s name was on the
    insurance certificate and even had Gil’s drivers license
    number.
    Maloney’s counsel objected twice on the ground that the
    Government misrepresented the testimony. The court
    overruled the objections, “with the admonition that this is
    counsel’s argument, it is up to the jury to determine the facts.”
    Second, the Government noted that Maloney testified that
    he had been away from trucking for many years until meeting
    Hernandez in late May or early June. However, the
    Government argued that this made no sense because Maloney
    testified to applying for a Class A license in April 2010, well
    before meeting with Hernandez. Thus, according to the
    Government, Maloney should not be believed, because there
    would be no reason to seek the license in April if he had truly
    just returned to trucking in May or June.
    Third, the Government argued that Maloney’s story was
    generally unbelievable because there was no evidence of any
    UNITED STATES V . MALONEY                   25
    luggage. The Government reasoned that, if Maloney knew he
    was going to be gone and if he truly was gone for three days,
    then he would have brought luggage. The Government began
    the rebuttal closing argument with references to the movie A
    Few Good Men to analogize Maloney’s lack of luggage with
    the scene where Tom Cruise inspects the murdered marine’s
    barracks. Just as the marine would have had luggage if he
    was truly awaiting transport in the movie, Maloney would
    have had luggage if he really was telling the truth about being
    gone for three days.
    After the Government ended its rebuttal closing argument,
    Maloney’s counsel moved for surrebuttal, arguing that the
    Government made three new arguments that he was unaware
    would be made: (1) that the date of getting the insurance
    certificate indicated that Maloney lied about the date he got
    the certificate even though Maloney never stated the exact day
    he received it; (2) that the evidence of Maloney trying to get
    a learner’s permit in April indicated that he was lying about
    being approached to drive by Hernandez; and (3) that
    Maloney’s counsel never asked about Maloney’s luggage
    during testimony, because this argument was new, and
    Maloney would have testified that he had a bag but it
    disappeared. Maloney’s counsel argued that, because these
    arguments did not come out in the prosecution’s initial
    closing argument, he had no chance to respond. The district
    court denied the motion for surrebuttal, stating:
    I would decline that invitation. I think we
    followed the normal order, that closing
    argument, here, I think, was appropriate in all
    respects. I am concerned about having a
    surrebuttal based on the arguments presented.
    26              UNITED STATES V . MALONEY
    Also, Mr. Maloney testified. Certain things
    were testified to, certain things were not. And
    there is going to be an interpretation on any
    surrebuttal to proffer what he would have
    testified about.
    The defense later moved for a mistrial, which was also
    denied.
    3. Analysis
    i. Misconduct
    Maloney argues that the prosecution’s discussion about
    the absence of luggage, the insurance certificate, and
    Maloney’s learner’s permit constituted new arguments, which
    were improper during rebuttal summation. He argues that the
    improper arguments prejudiced him such that a new trial is
    required, because the district court did not allow surrebuttal.
    The prosecution claims these statements were based upon
    reasonable inferences from the evidence and that defense
    counsel’s statements during closing arguments opened the
    door to the prosecution’s rebuttal summation.
    The district court did not abuse its discretion in
    determining that the Government’s rebuttal summation was
    proper and thus no surrebuttal was required. Maloney’s
    counsel opened the door to argument addressing the
    credibility and believability of Maloney and his story.
    Specifically, defense counsel invited a reply by the
    prosecution to address Maloney’s claims that “what
    [Maloney] testified to yesterday was reasonable and it was
    credible. And the Government is trying to say it is completely
    UNITED STATES V . MALONEY                    27
    unreasonable, it is preposterous.” In his closing argument,
    defense counsel concluded by emphasizing that Maloney’s
    “testimony was palpable, visceral, and it was real” and that
    the Government never proved him a liar beyond a reasonable
    doubt. In essence, defense counsel argued to the jury that
    Maloney should be found not guilty, because Maloney
    himself and his story were believable and credible. However,
    defense counsel did not stop there, counsel went on to assert
    that the Government had never cast doubt on Maloney’s
    credibility or honesty.
    To rebut Maloney’s closing argument claims, the
    prosecution referred to potential factual inconsistencies in
    Maloney’s testimony. The prosecution’s rebuttal statements
    (argued to be improper new arguments by Maloney) about the
    insurance certificate, the driving permit, and the lack of
    luggage were proffered to cast doubt on the truthfulness and
    credibility of Maloney and the reasonableness of his story.
    The district court had discretion to determine whether the
    prosecution was within the proper scope of rebuttal
    summation, and it was neither implausible nor illogical for the
    district court to find that the prosecution’s statements in
    rebuttal were invited by defense counsel. See Gray, 
    876 F.2d at 1417
    .
    Further, even though defense counsel’s closing argument
    did not expressly mention the date of the insurance certificate,
    drivers permit, trip log, cargo manifest, or luggage, defense
    counsel opened the door to that information being presented
    in the prosecution’s rebuttal summation by basing its
    argument on the proposition that the Government had not cast
    doubt on Maloney’s credibility and had not shown him to be
    a liar. The specific content of the prosecution’s arguments are
    28                UNITED STATES V . MALONEY
    red herrings. Defense counsel opens the door to topics or
    issues, not specific facts. See United States v. Lawson,
    
    483 F.2d 535
    , 538 (8th Cir. 1973) (noting rebuttal was likely
    proper because defense counsel had spoken to the same areas
    of argument).
    In this case, the Government’s rebuttal argument pointed
    to apparent factual inconsistencies in Maloney’s testimony to
    show him incredible and pointed to problems in Maloney’s
    story to show it unreasonable. First, although Maloney
    testified that he and Hernandez went to get insurance weeks
    before the Las Vegas trip, the insurance certificate was dated
    the day Maloney allegedly went to Las Vegas. Second,
    although Maloney testified that he had not driven trucks since
    the late 80’s and early 90’s and did not meet Hernandez until
    late May or early June of 2010, his commercial permit was
    dated April 12, 2010. Third, despite a requirement that all
    common carriers have trip logs and cargo manifests, Maloney
    had neither. Lastly, although Maloney stated that he had been
    on the road for three days before the arrest, there was no
    evidence of any luggage. It is not illogical or implausible to
    conclude that the fundamental point of each of these facts is
    that Maloney was not credible and his story unreasonable
    because there seemed to be inconsistencies. Thus, the district
    court did not abuse its discretion in determining that the
    prosecution’s rebuttal summation was proper as a response to
    defense counsel’s assertions that the prosecutor had never
    proved Maloney a liar.3
    3
    The dissent cites our sister circuit case, United States v. Rubinson,
    
    543 F.2d 951
    , 966 (2d Cir. 1976), for the proposition that defense counsel
    opens the door only when unexpected arguments are raised for the first
    time during defendant’s closing argument. The dissent reasons that,
    UNITED STATES V . MALONEY                           29
    Our case of United States v. Gray supports this
    conclusion. There we stated that “[i]t is ‘fair advocacy’ for
    the prosecution to advance an argument in rebuttal to which
    the defendant has opened the door.” Gray, 
    876 F.2d at 1417
    ;
    see also United States v. Mende, 
    43 F.3d 1298
    , 1300–01 (9th
    Cir. 1995). In Gray, we found that the Government’s closing
    argument was not beyond the scope of rebuttal summation.
    In that case, Gray missed his sentencing hearing and was
    indicted for the absence. Gray, 
    876 F.2d at 1413
    . A warrant
    was issued for his arrest, and about two and a half months
    later Gray was detained in Mexico, transferred to the border,
    and arrested. 
    Id.
     At Gray’s trial, no one testified that Gray
    because Maloney did not open the door unexpectedly during closing
    argument on the issue of his credibility, the prosecutor should not have
    been allowed to introduce new facts on rebuttal when those facts could
    have been introduced previously to rebut credibility. Rubinson states that
    the prosecution “may not use the defense’s [closing argument] to justify
    the reference to facts or the assertion of claims which it could have, but
    did not, introduce at trial . . . .” 
    Id.
    In rebuttal, the prosecutor commented on testimony that came out at
    trial, specifically in answer to defense counsel’s closing argument that
    Maloney’s testimony was credible. M aloney testified that he was going
    on a short trip to Las Vegas and did not reference having any luggage in
    his testimony. The prosecutor attempted to address inconsistencies in
    Maloney’s testimony during rebuttal in order to discredit Maloney. The
    prosecutor asked, “W here is his stuff?” Then he noted, “If he didn’t have
    any luggage – or if he had luggage, then the possibility would have been,
    [Maloney had to] put it somewhere.” Finally, the prosecutor concluded,
    if Maloney “had luggage, that [the rear cab] is where he would put it,”
    requiring Maloney to have been in close proximity to where the marijuana
    was stashed on top of the bunk beds. The prosecutor raised questions
    about Maloney’s testimony in order to alert the jury to this possible
    inconsistency. The prosecutor did not raise a new argument or a new
    issue. W e also do not believe such an approach constitutes referencing
    new facts or claims during rebuttal.
    30              UNITED STATES V . MALONEY
    was hiding in Mexico, and during closing arguments “the
    defense summation made no reference to Mr. Gray’s arrest in
    Mexico.” 
    Id. at 1417
     (internal quotation mark omitted).
    However, defense counsel argued during closing arguments
    that Gray was not aware of his sentencing date and his
    obligation to appear and that his failure to appear was not a
    continuing offense. 
    Id.
     at 1417–18.
    In rebuttal summation, the prosecutor argued that Gray
    was aware of his legal obligations, and the fact that it took
    nearly three months to find him in Mexico proved that he was
    hiding to evade his troubles. See 
    id. at 1417
    . Defense
    counsel objected to the prosecution’s argument, stating there
    was no evidence to indicate Gray was hiding. 
    Id.
     The court
    held that Gray opened the door by bringing up Gray’s
    intentions for going to Mexico; therefore, the prosecution’s
    response was “well within the scope of rebuttal argument.”
    
    Id. at 1418
    .
    The district court here did not abuse its discretion in
    determining that the prosecution’s arguments were
    permissible inferences from the record. See 
    id. at 1417
    . First,
    regarding the insurance certificate, Maloney testified that he
    went to the insurance business with Hernandez well in
    advance of leaving for Las Vegas, the insurance certificate
    was dated the same day Maloney alleged he left for Las
    Vegas. Further, the insurance certificate named Maloney as
    the insured and Andrew David Gil as the scheduled driver,
    but Maloney testified that he did not know Gil. The
    Government brought out many of these inconsistencies during
    its cross and re-cross examination of Maloney. Thus, the
    district court did not abuse its discretion because the
    Government’s rebuttal closing argument regarding the
    UNITED STATES V . MALONEY                      31
    insurance certificate was reasonable in light of the evidence
    presented. The prosecution made a permissible inference that
    Maloney’s testimony was not credible, as evident from the
    inconsistencies between his testimony and other evidence
    before the jury.
    Similarly, the district court did not abuse its discretion in
    determining that the Government’s statements regarding
    Maloney’s driving permit were permissible inferences
    because Maloney testified that he decided to start driving
    trucks again upon meeting Hernandez in May or June of
    2010. In closing arguments, the Government reasoned that if
    Maloney’s claims about the timing of his return to truck
    driving were true, it would not make sense for him to be
    applying for a commercial permit in April 2010, a month or
    so before meeting Hernandez. Pointing out this inconsistency
    did not contain any impermissible inferences which would
    lead us to conclude that the district court abused its discretion.
    The district court also did not abuse its discretion by
    allowing the Government to raise the issue of Maloney’s
    missing trip log and cargo manifest in closing argument.
    Although Maloney testified that he had a manifest for the load
    and knew it was required, none was found when the D.E.A.
    inspected the truck. This was another factual discrepancy that
    called into question Maloney’s credibility, and it was not an
    abuse of discretion for the district court to allow it.
    Lastly, the district court did not abuse its discretion in
    determining that the Government’s rebuttal argument
    regarding Maloney’s lack of luggage was a permissible
    inference from the record. Maloney testified that he had been
    on the road for three days at the time of his arrest. Maloney’s
    32                 UNITED STATES V . MALONEY
    testimony also showed that he had the ability to make
    deliveries that could last up to ten days, that he had a sleeping
    area in his truck, and that his truck was specifically designed
    for long trips. Therefore, even though Maloney testified that
    Hernandez requested he make a “short run,” the prosecution’s
    inference that the trip necessitated luggage was “certainly
    within the bounds of fair advocacy.” See United States v.
    Blueford, 
    312 F.3d 962
    , 968 (9th Cir. 2002). A prosecutor is
    allowed “to ask the jury to draw inferences from the evidence
    that the prosecutor believes in good faith might be true.” 
    Id.
    (emphasis added). Because there was support for the
    inference that could be “drawn from facts in the record[,]” the
    district court did not abuse its discretion in denying
    surrebuttal.4 See Hinkson, 
    585 F.3d at 1264
    .
    ii. Harmless Error
    Even if we were to find that the district court abused its
    discretion, any error in allowing the Government’s summation
    was harmless. “Where defense counsel objects at trial to acts
    of alleged prosecutorial misconduct, we review for harmless
    error on defendant’s appeal . . . .” United States v. Hinton, 31
    4
    The dissent contends that this ruling will give way to a situation where
    a prosecutor could, on rebuttal, raise wholly unrelated arguments despite
    lack of supporting evidence (e.g., that the prosecutor here could have
    argued that Maloney cheated on his tax returns even though nothing in the
    record demonstrates this). Our holding today does not authorize such a
    scenario. Allowing the prosecutor to draw inferences based on the events
    to which a defendant testifies (i.e., the circumstances leading up to the
    arrest) is distinct from allowing the prosecutor to advance a new argument
    in rebuttal, to discuss a new issue in rebuttal, or even to argue unrelated
    facts simply to challenge credibility after the defendant testifies (e.g.,
    introducing for the first time evidence that the defendant cheated on his or
    her taxes).
    UNITED STATES V . MALONEY                      
    33 F.3d 817
    , 824 (9th Cir. 1994). The harmless error standard
    applies here because Maloney objected by moving for
    surrebuttal summation immediately following the
    Government’s rebuttal summation. Harmless error requires
    us to “consider in the context of the entire trial whether it is
    more probable than not that the prosecutor’s conduct
    materially affected the fairness of the trial.” Reyes, 
    660 F.3d at 461
     (internal quotation marks omitted).
    Based on the entire context of the trial, it is not more
    probable than not that the fairness of Maloney’s trial was
    affected. First, the evidence against Maloney was strong. He
    was driving the tractor-trailer, it had his name on it, and nine
    blocks of the marijuana were found in the cab behind the
    driver’s seat of the tractor-trailer, sitting in plain view on the
    top bunk. This large quantity of marijuana was difficult to
    hide and would hardly be unnoticeable to Maloney.
    Maloney’s only defense was that he was not aware of the
    marijuana.
    Second, the judge admonished the jury that rebuttal
    summation was only the argument of counsel, not evidence,
    and that the jury had the job of determining the facts. See
    United States v. Bracy, 
    67 F.3d 1421
    , 1431 (9th Cir. 1995)
    (holding, on plain error review, that the district court’s
    caution to the jury that questions, objections, statements, and
    arguments of counsel are not evidence “neutralized any
    prejudicial effect the prosecutor’s statement may have had”).
    It is “presume[d] jurors follow the court’s instructions absent
    extraordinary situations.” Tak Sun Tan v. Runnels, 
    413 F.3d 1101
    , 1115 (9th Cir. 2005).
    34              UNITED STATES V . MALONEY
    Lastly, in response to the dissent, we are satisfied on this
    record that it was harmless error for Maloney’s request for
    surrebuttal specifically about luggage to be denied. When
    Maloney’s counsel requested surrebuttal, counsel stated that
    Maloney would have testified that he had a bag, but he did not
    know what happened to it. If the jury would have heard this
    argument, it would have been easy for the jury to infer that
    Maloney would have put the bag in the cab. Then when the
    bag went missing, he would have searched for the bag in the
    cab and found the nine bricks of marijuana on the top bunk.
    Further, Maloney testified that Hernandez called him to
    make a “short run” to Las Vegas. Las Vegas is only a four
    hour drive from Riverside. Therefore, the prosecutor’s
    argument was not necessarily in conflict with Maloney’s
    testimony. The jury could have considered the lack-of-
    luggage argument and found no inconsistency with Maloney’s
    testimony. If Maloney believed he was only going to Las
    Vegas, he would not have needed to pack luggage and there
    would have been no apparent reason for him to look in the
    cab of the truck. In contrast, if Maloney’s defense counsel
    would have argued in surrebuttal that Maloney had a bag, the
    jury would have been left with an inconsistency in Maloney’s
    story. Having luggage may have suggested to the jury that
    Maloney knew all along that he would be going to El Centro
    and Blythe. This would have jeopardized Maloney’s
    credibility much more than the unanswered luggage
    statements made by the prosecution in rebuttal.
    In sum, because the evidence against Maloney was strong,
    and because the district court gave an instruction that the jury
    is presumed to have followed, we cannot say that “it is more
    probable than not that the prosecutor’s conduct materially
    UNITED STATES V . MALONEY                   35
    affected the fairness of the trial.” See Reyes, 
    660 F.3d at 461
    (quoting McKoy, 
    771 F.2d at 1212
    ) (internal quotation marks
    omitted).
    We disagree with the dissent’s reading of our opinion that
    all Hein v. Sullivan, 
    601 F.3d 897
     (9th Cir. 2010), factors
    suggest that the prosecutor’s rebuttal necessitates a new trial
    for Maloney. First, we cannot conclude that the prosecutor
    misstated the evidence. As explained previously, the
    prosecutor did not definitively say Maloney was without
    luggage. He simply raised questions based on the record in
    order to alert the jury to a possible inconsistency. Second,
    while the judge did not admonish the jury to disregard the
    prosecutor’s argument, the jury was instructed that counsel’s
    arguments are not evidence. Thus, the jury would have
    understood that it could accept or reject the inferences
    suggested by the prosecutor. Third, defense counsel’s closing
    argument opened the door to a response regarding why
    Maloney’s testimony was not credible. Fourth, although
    defense counsel was not given an opportunity for surrebuttal,
    we do not consider this factor dispositive.
    Finally, in light of the other evidence against Maloney,
    and in the context of the other arguments made by both
    counsel, we cannot conclude that the luggage argument was
    prominent in the jury’s mind. Although the dissent argues
    that a jury note shows that the jury placed great emphasis on
    whether Maloney had luggage, we cannot draw that
    conclusion from the note. The note asked to see Exhibit K,
    which defense counsel used to elicit testimony from the case
    agent that Maloney had $1.27 on his person at the time of the
    arrest.
    36              UNITED STATES V . MALONEY
    Even assuming the prosecutor’s rebuttal was improper, we
    cannot conclude that a new trial is required. Thus, the district
    court’s ruling must be affirmed.
    D. Cumulative Error
    “In some cases, although no single trial error examined in
    isolation is sufficiently prejudicial to warrant reversal, the
    cumulative effect of multiple errors may still prejudice a
    defendant.” United States v. Frederick, 
    78 F.3d 1370
    , 1381
    (9th Cir. 1996). Because we find no error in this case, there
    can be no cumulative effect of multiple errors.
    III. CONCLUSION
    For all of the foregoing reasons, the district court’s
    judgment is AFFIRMED.
    GILMAN, Circuit Judge, dissenting:
    I agree with the majority’s analysis on all but the
    following two issues: (1) whether the district court abused its
    discretion by refusing Maloney’s request to respond in a
    surrebuttal to the government’s “lack-of-luggage” argument
    that was raised for the first time during rebuttal; and (2) if so,
    whether that error warrants a new trial. Contrary to the
    majority, I believe that the answers to these two questions
    should be “yes.” I therefore respectfully dissent.
    UNITED STATES V . MALONEY                    37
    I. The district court abused its discretion
    The lack-of-luggage argument played a prominent role in
    the government’s rebuttal during closing arguments. As part
    of his rebuttal, the prosecutor asserted for the first time that
    Maloney must have been lying about the purpose of his trip
    between the California cities of El Centro and Blythe because
    there was no luggage found in the truck when it was stopped
    at the Highway 78 Border Patrol checkpoint. The prosecutor
    made this lack-of-luggage argument despite the fact that there
    was no evidence presented at trial to establish whether
    Maloney did or did not have luggage during the trip.
    Emphasizing the new lack-of-luggage argument, the
    prosecutor began his rebuttal by describing a scene from A
    Few Good Men, a movie about a murder trial. In the scene
    described, an attorney played by Tom Cruise argued that he
    could prove that certain Marine officers had lied when they
    testified that the victim—who had died in the middle of the
    night—was scheduled to permanently leave the naval base at
    Guantanamo Bay early the next morning because there was no
    evidence that the victim had packed any of his belongings.
    The prosecutor in the present case urged the jury to think
    about the evidence that was not presented, just like Tom
    Cruise had done in the movie:
    Which comes to the final thing that is not
    there. And when I tell you this, you will
    realize why I remembered the scene in A Few
    Good Men.
    38          UNITED STATES V . MALONEY
    Remember the testimony [of Maloney]: I
    met Mr. Hernandez. He wanted me to drive.
    I have this truck that has the long-haul
    capacity. I can drive a long way. I can sleep
    in the back. But I tell you what, I can only
    limit it to 10 or 11 days because of my
    personal situation.
    ....
    And the final thing that is not there:
    luggage. Where is his stuff?
    I [(speaking as Maloney)] am going to—I
    know that I have long-haul capabilities for 10
    to 11 days. I go with this Clorox to Las
    Vegas. I spend the night in Las Vegas. I get
    a call[;] I got to go to El Centro. I have two
    days in El Centro.
    Where is his stuff?
    ....
    Where is his stuff? Knowing it was going
    to be 10 days—knowing that he could go up to
    10 days, he has the sleeping accommodations.
    ....
    Because remember what is missing,
    among other things: luggage. If he didn’t
    have any luggage—or if he had luggage, then
    UNITED STATES V . MALONEY                  39
    the possibility would have been, I got to put it
    somewhere. And he put it—where would he
    put it? He would put it on the bed or on that
    top shelf [where the marijuana was located].
    ....
    Ladies and Gentlemen, the evidence here
    shows the defendant knew exactly what he
    was doing. That his versions of the events are
    not true, they are not reasonable, they make no
    sense. And that someone would not [sic] hire
    him and then risk the discovery by just putting
    [the marijuana] up on a shelf; when, if the
    defendant had luggage, that is where he would
    put it.
    (Emphasis added.)
    The government concedes that it never raised this
    argument before its rebuttal summation. And the prosecutor
    admitted to this court, in the following colloquy at oral
    argument, that he “sandbagg[ed]” Maloney by withholding
    the lack-of-luggage argument until rebuttal, when Maloney
    had no opportunity to respond:
    Judge Gilman: Alright, then why didn’t you
    raise this [lack-of-luggage] argument in your
    first argument on summation?
    Assistant   U.S. Attorney, Steve Miller:
    Because I don’t believe that I needed to.
    40              UNITED STATES V . MALONEY
    Judge Gilman: Aren’t you sandbagging a
    bit—to wait for rebuttal?
    Miller: Yes I was.
    Put simply, the government held back the lack-of-luggage
    argument for rebuttal when the argument could have, and
    should have, been made earlier in the trial. See United States
    v. Taylor, 
    728 F.2d 930
    , 937 (7th Cir. 1984) (holding “that a
    prosecutor cannot use rebuttal to put forth new arguments, but
    is restricted to responding to the points made by the defense
    counsel in closing argument”).
    The majority excuses the government’s belated argument
    by reasoning that defense counsel “opened the door to
    argument addressing the credibility and believability of
    Maloney and his story.” (Maj. Op. at 26) But the open-the-
    door exception makes sense only if the door was
    unexpectedly opened for the first time during the defendant’s
    closing argument. See United States v. Rubinson, 
    543 F.2d 951
    , 966 (2d Cir. 1976) (holding that defense counsel, by
    pointing out gaps in the government’s proof that the
    government would “have been expected to negate
    previously,” did not open the door to the government’s
    reference to new facts on rebuttal that “it could have, but did
    not, introduce at trial”). The government should not be able
    to take advantage of this exception when it had ample notice
    of the defendant’s credibility argument.
    In this case, Maloney’s main defense throughout the trial
    was to demonstrate his propensity for truthfulness. He called
    two character witnesses to testify to just that. And we have
    the government’s concession that its failure to raise the lack-
    UNITED STATES V . MALONEY                     41
    of-luggage argument earlier was part of its strategy to
    “sandbag” Maloney, not because it was surprised by any
    contentions made by Maloney’s counsel in closing argument.
    The lack-of-luggage argument, moreover, was improper
    not just because it was raised for the first time on rebuttal. It
    was also improper because, in contrast to the information
    regarding the insurance certificate, drivers permit, trip log,
    and cargo manifest (which the prosecutor also presented in his
    rebuttal summation), the lack-of-luggage argument had no
    foundation in the record. See United States v. Gray, 
    876 F.2d 1411
    , 1417 (9th Cir. 1989) (noting that “it is improper to base
    closing arguments upon evidence not in the record”).
    This crucial distinction is not addressed by the majority.
    Instead, the majority concludes that, “even though defense
    counsel’s closing argument did not expressly mention the date
    of the insurance certificate, drivers permit, trip log, cargo
    manifest, or luggage, defense counsel opened the door to that
    information being presented in the prosecutor’s rebuttal
    summation by basing its argument on the proposition that the
    Government had not cast doubt on Maloney’s credibility and
    not shown him to be a liar.” (Maj. Op. at 27) The majority
    then flatly states that “[t]he specific content of the
    prosecution’s arguments are red herrings” because “[d]efense
    counsel opens the door to topics or issues, not specific facts.”
    (Id. at 27-28)
    But the case cited by the majority in support of that
    statement, United States v. Lawson, 
    483 F.2d 535
     (8th Cir.
    1973), stands only for the proposition that, “[w]hen confined
    to the evidence or reasonable inferences [drawn therefrom],
    the arguments of counsel are not to be too narrowly limited.”
    42              UNITED STATES V . MALONEY
    
    Id. at 539
     (internal quotation marks omitted). Lawson has
    nothing to say about closing arguments that are not confined
    to the evidence in the record or reasonable inferences drawn
    therefrom. Under Ninth Circuit caselaw, those arguments are
    improper, Gray, 
    876 F.2d at 1417
    , and the majority fails to
    explain why a rebuttal argument fashioned from whole cloth
    (regarding the lack of luggage) should be treated the same as
    ones based on facts in the record (regarding the insurance
    certificate, drivers permit, trip log, and cargo manifest).
    A brief hypothetical example reveals the flaw in the
    majority’s reasoning. Suppose that the prosecutor in this case
    had mentioned for the first time during rebuttal, despite the
    lack of supporting evidence, that Maloney had broken his
    marriage vows and cheated on his tax returns. Under the
    majority’s rule—that “defense counsel opens the door to
    topics or issues, not specific facts”—this argument would
    presumably be permissible because it bears on the “issue” of
    Maloney’s credibility. But any such rebuttal argument would
    surely be improper. I do not think that this court should adopt
    a rule that, when taken to its logical conclusion, leads to such
    obviously incorrect results.
    The majority later concludes that “the district court did
    not abuse its discretion in determining that the Government’s
    rebuttal argument regarding Maloney’s lack of luggage was
    a permissible inference from the record” because “the
    prosecution’s inference that the trip necessitated luggage was
    ‘certainly within the bounds of fair advocacy.’” (Maj. Op. at
    31-32 (quoting United States v. Blueford, 
    312 F.3d 962
    , 968
    (9th Cir. 2002)) But the prosecutor did not simply infer that
    the trip necessitated luggage; he also repeatedly stated that
    Maloney did not in fact have any luggage—an argument that
    UNITED STATES V . MALONEY                     43
    is based on absolutely no record evidence. I therefore fail to
    see how “there was support for the inference that could be
    drawn from facts in the record.” (Maj. Op. at 32 (internal
    quotation marks omitted)) In sum, I believe that the district
    court abused its discretion in denying Maloney an opportunity
    to respond to the government’s improper lack-of-luggage
    argument.
    II. The district court’s error was not harmless
    The majority reasons in the alternative that even if the
    district court abused its discretion by prohibiting a surrebuttal
    by Maloney’s counsel, that error was harmless. But I believe
    the district court’s error warrants a new trial. When a district
    court abuses its discretion, a new trial is warranted if “it is
    more probable than not that the prosecutor’s conduct
    materially affected the fairness of the trial.” United States v.
    Reyes, 
    660 F.3d 454
    , 461 (9th Cir. 2011) (internal quotation
    marks omitted).
    This court’s decision in Hein v. Sullivan, 
    601 F.3d 897
    (9th Cir. 2010), lists the following factors that we may
    consider in determining whether a prosecutor’s improper
    argument requires a new trial:
    •   whether the prosecutor misstated the
    evidence;
    •   whether the judge admonished the jury to
    disregard the improper argument;
    •   whether defense counsel opened the door
    to the improper argument;
    44              UNITED STATES V . MALONEY
    •   whether defense counsel had adequate
    opportunity to rebut the argument; and
    •   the prominence of the argument in the
    context of the entire trial and weight of the
    evidence.
    
    Id. at 912-13
    . Furthermore, an improper argument made
    during rebuttal is all the more effective because the defense is
    given no chance to refute it. See United States v. Sanchez,
    
    659 F.3d 1252
    , 1261 (9th Cir. 2011) (“[T]he prosecutor
    presented the [improper] ‘send a memo’ rhetoric during his
    rebuttal, thus ensuring that it was the last argument the jury
    heard before going to the jury room to deliberate. This timing
    increased the risk that the inflammatory statement would
    improperly influence the jurors.”).
    Applying these principles to the facts of the present case,
    I believe that the district court’s error is serious enough to
    warrant a new trial. All the Hein factors indicate that the
    prosecutor’s improper argument was likely to have adversely
    affected the fairness of Maloney’s trial. Most of the reasons
    why this is so have already been mentioned: (1) the lack-of-
    luggage argument was made at the very end of the case;
    (2) the prosecutor made the point several times and used a
    scene from a well-known movie for emphasis; (3) the
    prosecutor waited until rebuttal to bring up the argument even
    though he was fully aware of Maloney’s defense theory much
    earlier; (4) there was no evidence regarding the existence of
    luggage in the record, despite the fact that Maloney testified
    and the prosecutor could have asked him about any luggage
    on cross-examination; (5) defense counsel moved for an
    opportunity to respond, stating that Maloney would have
    UNITED STATES V . MALONEY                    45
    testified that he in fact did have luggage with him prior to his
    arrest; and (6) the judge did not admonish the jury to
    disregard the argument about the absence of luggage. In
    addition, during the jury’s deliberations, the jury sent a
    question to the judge concerning the items in Maloney’s
    possession at the time that he was arrested. This indicates
    that the prosecutor’s lack-of-luggage argument had an impact
    on the jury’s deliberations. Taken together, all these factors
    show that the court’s error was not harmless.
    The majority nevertheless concludes that the error was
    harmless because “the evidence against Maloney was strong.”
    (Maj. Op. at 33) In my view, the majority substantially
    overestimates the strength of the government’s case. The case
    turned on whether Maloney was deemed credible by the jury.
    When a case comes “down to a battle over credibility,”
    improper arguments are more likely to have an effect on the
    fundamental fairness of the trial. See Sanchez, 
    659 F.3d at 1260
     (“Because the sole issue in Sanchez’s case centered on
    witness credibility, the [improper prosecutorial] statement
    likely affected the jury’s ability to decide the case fairly.”).
    The length of the jury’s deliberations and its request for
    evidence showing the personal property possessed by
    Maloney when he was arrested further underscore the
    closeness of this case. Even though the trial’s testimony and
    argument took the equivalent of only a day, the jury
    deliberated an entire afternoon and the next morning before
    reaching its verdict, which indicates that the verdict hung in
    the balance. This suggests a far closer case than the majority
    acknowledges.
    46              UNITED STATES V . MALONEY
    I am equally unpersuaded by the majority’s additional
    reasons for why the district court’s error was harmless. First,
    the majority notes that defense counsel, in his request for
    surrebuttal, “stated that Maloney would have testified that he
    had a bag, but he did not know what happened to it.” (Maj.
    Op. at 34) The majority then determines that, “[i]f the jury
    would have heard this argument, it would have been easy for
    the jury to infer that Maloney would have put the bag in the
    cab. Then when the bag went missing, he would have
    searched for the bag in the cab and found the nine bricks of
    marijuana on the top bunk.” (Maj. Op. at 34.)
    The problem with this reasoning is that it rests on nothing
    more than speculation. One could just as easily speculate
    that, if Maloney had had the chance to explain why he did not
    know what happened to the bag, he would have stated that he
    was unaware that his bag was missing at the time that he was
    arrested, or that he had the bag beside him on the passenger
    seat when he was arrested and did not know what happened
    to it afterward, or offered some other plausible explanation
    for its disappearance that would have given him no reason to
    search the sleeping quarters of the cab and spot the bricks of
    marijuana. Indeed, the record indicates that Maloney had no
    need to check the sleeping quarters of the cab because he slept
    in hotel rooms, rather than inside the cab, while he was on the
    road.
    The majority also states that, “in light of the other
    evidence against Maloney, and in the context of the other
    arguments made by both counsel, we cannot conclude that the
    luggage argument was prominent in the jury’s mind.” (Maj.
    Op. at 35) I respectfully disagree. The prosecutor thought
    enough of the lack-of-luggage argument to save it for
    UNITED STATES V . MALONEY                   47
    “sandbagging” on rebuttal summation, with the argument
    being not just a passing reference but a central feature. And
    the jury was sufficiently interested in the argument to request
    information regarding the items in Maloney’s possession at
    the time of his arrest—and concerned enough about the
    proper outcome of the case to spend a relatively long time
    deliberating. I would therefore vacate the district court’s
    judgment and remand for a new trial. For all the foregoing
    reasons, I respectfully dissent.
    

Document Info

Docket Number: 11-50311

Filed Date: 11/14/2012

Precedential Status: Precedential

Modified Date: 10/30/2014

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