United States v. Eli Sloan ( 2019 )

FILED
NOT FOR PUBLICATION
MAR 08 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10400
Plaintiff-Appellee, D.C. No.
3:15-cr-08232-DLR-1
v.
ELI SLOAN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Submitted March 6, 2019**
Phoenix, Arizona
Before: CLIFTON, IKUTA, and FRIEDLAND, Circuit Judges.
Eli Sloan appeals his conviction on six counts relating to his kidnapping of
his estranged wife. We have jurisdiction under 28 U.S.C. § 1291.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Statements in the prosecutor’s closing argument do not constitute plain error
warranting reversal. In describing Olivia Cowboy as courageous, the prosecutor
made a reasonable inference from Cowboy’s testimony. The statement did not
convey either that the government was guaranteeing Cowboy’s veracity or that
evidence not presented to the jury, but known to the prosecutor, supported her
testimony. Therefore, the prosecutor’s statement did not constitute impermissible
vouching. See United States v. Atcheson, 94 F.3d 1237, 1245 (9th Cir. 1996); see
also United States v. Weatherspoon, 410 F.3d 1142, 1146–48 (9th Cir. 2005).
Nor has Sloan pointed to statements in the prosecutor’s argument improperly
urging the jury to convict Sloan to prevent him from harming anyone in the future.
Rather, the prosecutor argued that Sloan intended to kill Cowboy before Cowboy
escaped, that Cowboy did not seek help because she feared Sloan would assault her
for doing so, and that the jury should not repeat Cowboy’s mistake of believing
Sloan’s lies. These statements did not improperly urge the jury to convict Sloan
“for reasons wholly irrelevant to his own guilt or innocence.” Weatherspoon, 410
F.3d at 1149 (quoting United States v. Koon, 34 F.3d 1416, 1443 (9th Cir. 1994)).
Because Cowboy’s and Sloan’s testimonies were contradictory, the
prosecutor did not err in arguing that it was Sloan, rather than Cowboy, who was
lying. See United States v. Molina, 934 F.2d 1440, 1444–45 (9th Cir. 1991).
2
Given that the prosecutor accurately recounted Sloan’s testimony that his
mother hung up on him and stopped answering his calls, the prosecutor did not err
in suggesting that the jury draw a reasonable inference that Sloan’s mother did not
believe his version of events. See id. at 1445; see also United States v. Flores, 802
F.3d 1028, 1037 (9th Cir. 2015).
The district court also did not abuse its discretion by admitting prior act
evidence under Rule 404(b) of the Federal Rules of Evidence given that each of the
challenged prior acts of abuse by Sloan against Cowboy were: (1) relevant to
showing that Sloan intended to assault and murder Cowboy and to explaining why
Cowboy did not attempt escape or call for help during the attack and kidnapping;
(2) similar to the crimes Sloan was charged with; (3) supported by testimony; and
(4) occurred within two years of the alleged crime. See United States v. Hinton, 31
F.3d 817, 822–23 (9th Cir. 1994); United States v. Tsinnijinnie, 91 F.3d 1285,
1288–89 (9th Cir. 1996). Nor did the district court abuse its discretion in finding
that the probative value of this evidence was not substantially outweighed by a
danger of unfair prejudice or other harms, given that the evidence was probative of
intent and that the district court gave the jury a proper limiting instruction. Hinton,
31 F.3d at 823; see also Fed. R. Evid. 403.
3
Because Sloan has not identified any errors, there is no cumulative effect of
errors that warrants reversal of his convictions. See United States v. Beck, 418
F.3d 1008, 1016 n.7 (9th Cir. 2005).
AFFIRMED.
4