Jeffrey Green v. Allstate Ins. Co. ( 2017 )

FILED
NOT FOR PUBLICATION
JUN 06 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50204
Plaintiff-Appellee, D.C. No.
3:12-cr-03814-JLS-1
v.
ARTURO RIVERA-GALLEGOS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted May 10, 2017
Pasadena, California
Before: WALLACE, CHRISTEN, and WATFORD, Circuit Judges.
1. The prosecution did not commit misconduct by stating during closing
argument that the bloody rocks were located further up the trail from where Arturo
Rivera-Gallegos first encountered Agent Juan Ambriz. Rivera contends that the
prosecution committed misconduct by making that statement without having an
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Page 2 of 2
adequate evidentiary basis for doing so. We disagree. A Border Patrol agent
testified at trial that the bloody rocks were located up the trail from where Agent
Ambriz first encountered Rivera. That testimony provided adequate evidentiary
support for the prosecution’s argument. See United States v. Sayetsitty, 107 F.3d
1405, 1409 (9th Cir. 1997).
2. The prosecution did not sandbag Rivera by raising this argument for the
first time during its rebuttal closing argument. During Rivera’s closing argument,
his counsel argued that the jury should return a not guilty verdict if it believed
Rivera’s account that he turned to run away after seeing Agent Ambriz. The
prosecution permissibly responded to that argument during rebuttal by explaining
why the evidence contradicted Rivera’s account. See United States v. Bagley, 772
F.2d 482, 494–95 (9th Cir. 1985).
AFFIRMED.
FILED
USA v Arturo Rivera -Gallegos 15-50204
JUN 06 2017
CHRISTEN, dissenting. MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
The majority decides that the prosecution did not misstate the evidence or
sandbag Rivera in rebuttal closing argument, conclusions that seem to me to be
contradicted by the record. Because I would hold that the prosecution misstated
the evidence and exceeded the scope of proper rebuttal, and because the
prosecution did not meet its burden of showing that its misconduct was harmless, I
respectfully dissent.
Rivera and his companions were confronted by border patrol agents on a
dark desert trail as Rivera’s group attempted to illegally enter the United States.
Rivera did not contest the government’s unlawful reentry charge, but he went to
trial on the government’s allegation that he assaulted a border patrol agent on the
night he was arrested. According to the government’s witnesses, border patrol
agents knew that Rivera’s group was approaching a narrow stretch of trail and they
hid, just off the trail in the dense brush, waiting to arrest the group. At the chosen
time, Agents Gillespie and Ambriz stepped out onto the trail, turned on their
flashlights, and hollered for the group to stop. Rivera was first in the single-file
line of people making their way through the desert, and he testified that when the
agents jumped out, he pivoted in place to run back the way he had come. But
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because there was a person walking closely behind him, Rivera crashed almost
immediately and landed in a heap. It is uncontested that Agent Ambriz wound up
on top of Rivera, and that in the process of being handcuffed, Rivera’s head was
cut on some rocks. Photos taken that night show Rivera with a cut on his head.
Another shows some blood on the trail.
The agents’ testimony sharply contradicted Rivera’s version of events.
According to them, Rivera responded to the agents by rushing straight ahead and
assaulting Agent Ambriz by charging into him. Up until rebuttal closing
arguments, the case looked like a credibility battle. But the prosecutor made a
statement in rebuttal closing that there was also physical evidence supporting the
government’s recitation of the facts. Rivera’s counsel objected immediately that
the government’s argument misstated the evidence and exceeded the proper scope
of rebuttal. Whether any such evidence had been presented to the jury hinges on
what Agent Gillespie meant when he testified that Rivera’s blood was found on
rocks “up the trail” from where the agents first confronted Rivera and his
companions. The prosecution argues that Agent Gillespie’s testimony was
consistent with the government’s theory that Rivera charged forward, pushed
Agent Ambriz back an unknown number of steps, and that the two landed in a spot
that was behind the place where Agent Ambriz stepped out onto the trail.
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Unfortunately, the transcript is muddled. What it shows is that various
points of reference and gestures were used by the witnesses as they testified, and
those gestures and references do not translate very well on appeal. (“Q. ‘From
where you and Agent Ambriz were standing, where is [the blood on the rocks]
location in relationship to where you were standing before you came out on the
trail?’ A. ‘I would say about where Ms. Stingley is.’”). Our examination of the
trial transcript does not allow us to see the gestures the witnesses used, but the
district court watched all the evidence as it was presented and it is significant, in
my view, that the district court commented, “I don’t know how anybody knows
where anybody was. . . . We don’t know exactly where everybody jumped out.”
The court was mindful that Rivera and his companions were confronted by border
patrol agents in the dark, on a narrow unlit trail, and that what actually transpired
was likely less than clear to the participants. As the district court observed, “This
is pure and simple credibility.”
It is not unusual that a portion of a trial transcript is ambiguous, and the
ambiguous passage in this one is not what prompts me to dissent. I part from the
majority because the prosecution made a very different argument in the district
court from the one presented on appeal, and I am persuaded by the government’s
own contemporaneous, in-court concessions about what its evidence did and did
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not show.
Shortly before closing arguments, the prosecution tried to recall Agent
Ambriz as a rebuttal witness specifically because the government wanted to
introduce evidence about “where [he] came out on the trail.” Defense counsel
objected and the parties discussed the issue at sidebar. The prosecution argued that
the exact location that Agent Ambriz entered the trail was “critical and important”
because it “devastates” Rivera’s testimony that he turned around to head back the
way he had come when he saw Agent Ambriz step onto the trail. The prosecutor
was unequivocal in stating that this evidence was not yet in the record: “We didn’t
say where exactly it was that [Agent Ambriz] came out.” The district court
admonished the prosecution that it should have told the jury “exactly where
everybody jumped out . . . the first time” Agent Gillespie took the witness stand.
The prosecution responded by taking the position that it had not elicited the
testimony the first time Agent Gillespie testified because “[the location of the
blood on the trail] wasn’t relevant then;” i.e. it was not relevant because Rivera had
not yet testified that he turned around in a failed attempt to run away from Agent
Ambriz. The district court was not persuaded that Rivera’s testimony was a
surprise to the prosecution, noting that Rivera explained his version of events in a
recorded statement he gave to the government sometime shortly after his arrest.
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Nevertheless, over defense counsel’s objection, the district court offered to allow
the prosecution to reopen its case in chief so that Agent Ambriz could put a mark
on a map to show where he first encountered Rivera. Despite its argument that this
evidence was both critical and missing from the record, the prosecution declined
the court’s offer and the lawyers proceeded to closing arguments.
In its rebuttal closing, the government presented a sketched map the
prosecutor prepared after the sidebar but before closing arguments. The prosecutor
used the sketch to illustrate an argument about where the bloody rocks were
located in relation to where Agent Ambriz first stepped out onto the trail. Defense
counsel immediately objected, correctly stressing that this part of the government’s
rebuttal argument was not responsive to Rivera’s closing argument and misstated
the evidence.
The district court allowed the prosecution to use the sketched map and argue
to the jury that Rivera’s testimony was “not consistent with the physical evidence.”
But the court instructed the jurors to rely on their “independent recollection of
what we all heard here.” The district court further instructed the jurors that “what
the lawyers have said . . . is not evidence. If the facts as you remember them differ
from the way the lawyers state them, your memory of them controls.” When
Rivera moved for a new trial, the motion was denied. The district court concluded
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that any prosecutorial misconduct was harmless.
“We review district court determinations regarding the proper scope of
rebuttal closing argument for an abuse of discretion.” United States v. Gray, 876
F.2d 1411, 1417 (9th Cir. 1989). We “review the record de novo in order to
determine an error’s harmlessness.” Arizona v. Fulminante, 499 U.S. 279, 295
(1991). “The government bears the burden of persuasion with respect to proving
that the error was harmless.” United States v. Mitchell, 172 F.3d 1104, 1111 (9th
Cir. 1999).
Having reviewed this record, I find no persuasive argument that the
prosecution’s rebuttal responded to anything said by defense counsel during
closing. Defense counsel’s assertion in closing that the defendant told the truth
does not allow the prosecution to introduce new arguments. See United States v.
Rubinson, 543 F.2d 951, 966 (2d Cir. 1976) (“While the prosecution in rebuttal
may explain why it has not proven certain facts or respond to the interpretation
which the defense has placed on its failure to present evidence, it may not use the
defense’s comments to justify the reference to facts or the assertion of claims
which it could have, but did not, introduce at trial unless defense counsel’s remarks
assert collateral, exculpatory alibis or defenses which the government would not
have been expected to negate previously.”). On this record, I conclude that the
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government held back its blood-on-the-rocks argument for rebuttal rather than
presenting it when Rivera would have had a fair opportunity to respond. See
United States v. Maloney, 699 F.3d 1130, 1150 (9th Cir. 2012) (Gilman, J.,
dissenting), vacated on reh’g en banc, 755 F.3d 1044 (9th Cir. 2014).
Unspoken gestures and incomplete sentences can cause problems on
appellate review, but in this case we need look no farther than the prosecution’s
own arguments at sidebar to conclude that the exact location where Agent Ambriz
entered the trail was not in evidence. And without that reference point, the defense
had no fair chance to respond to the prosecution’s argument that a photo of a
bloody rock constituted “physical evidence” refuting Rivera’s testimony about
where he made contact with Agent Ambriz.
In concluding that the defendant was not given a fair chance to respond to
this argument, I rely heavily on the district court’s and lawyers’ contemporaneous
description of the testimony presented to the jury. And I cannot conclude that it is
more probable than not that the prosecutor’s belated argument had no material
effect on the verdict. As in other cases where we have declined to dismiss
prosecutorial misconduct as harmless, “[t]his was a comparatively close case that
boiled down to a battle over credibility.” United States v. Weatherspoon, 410 F.3d
1142, 1152 (9th Cir. 2005). That the prosecution felt the need to use its sketched
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map in rebuttal reinforces that this was a close case. See United States v.
Alcantara-Castillo, 788 F.3d 1186, 1197 (9th Cir. 2015) (“That the supervising
prosecutor at trial—who, unlike us, actually observed the critical testimony and the
jury’s response to the key witnesses—felt motivated to take this risk suggests he
may have had doubts about the outcome.”). Absent an argument sprung upon the
defense in rebuttal, the jury may have found Rivera credible and acquitted him of
assaulting a federal officer. “Evidence matters; closing argument matters;
statements from the prosecutor matter a great deal.” United States v. Kojayan, 8
F.3d 1315, 1323 (9th Cir. 1993). For the foregoing reasons, I respectfully dissent.
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