United States v. Michael Nickolson , 362 F. App'x 864 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10114
Plaintiff - Appellee, D.C. No. 2:06-CR-00171-JAM-1
v.
MEMORANDUM *
MICHAEL RAY NICKOLSON,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted January 15, 2010
San Francisco, California
Before: NOONAN, HAWKINS and M. SMITH, Circuit Judges.
Michael Ray Nickolson (“Nickolson”) appeals his conviction as a felon in
possession of a firearm, arguing the district court erred, individually and cumulatively,
when it excluded police reports and a sworn declaration the arresting officers had
prepared, failed to give a proposed jury instruction regarding police officer credibility,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
and did not correct the prosecutor’s misstatement during closing argument. We affirm
because any error was harmless in light of the defense’s ability to read from the
contested documents and argue their contents to the jury.
A. Evidentiary Rulings
In excluding Officer Dias’s sworn declaration, the district court correctly found
extrinsic evidence of a prior inconsistent statement admissible to impeach under
Federal Rule of Evidence 613(b). The district court was correct even despite the
witness having conceded the inconsistency on the stand because “[e]xtrinsic evidence
of a prior inconsistent statement is more persuasive to a jury than a witness’s
acknowledgment of inconsistencies in a prior statement.” United States v. Strother,
49 F.3d 869, 876 (2d Cir. 1995); see also Gordon v. United States, 344 U.S. 414, 420-
21 (1953); United States v. Lashmett, 965 F.2d 179, 181-82 (7th Cir. 1992); Williams
v. United States, 403 F.2d 176, 179 (D.C. Cir. 1968).
The district court then acted within its discretion to exclude the declaration
under Rule 403. It concluded the scant, additional probative value of the declaration
was nullified by the potential for juror confusion, including confusion possibly
prejudicial to Nickolson, because the declaration had to be heavily redacted. Whether
we would agree de novo, under abuse of discretion review, see United States v.
Gonzalez-Flores, 418 F.3d 1093, 1098 (9th Cir. 2005), we affirm.
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The district court did err in excluding the police reports under Rule 803(8)(B)
because the reports, only offered for the purpose of impeachment, did not come under
the umbrella of the hearsay rule in the first place. Under the axiomatic language of
Rule 801(c), “‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Fed. R. Evid. 801(c).
However, this error was harmless. The defense was able to read from the
reports during cross-examination, use them to explain its theory of the case, and rely
on them in closing argument. Given the extent to which the jury was able to consider
the reports, we are persuaded of a “fair assurance” of harmlessness, and that “it is
more probable than not that the error did not materially affect the verdict.” United
States v. Seschillie, 310 F.3d 1208, 1214 (9th Cir. 2002) (internal quotation marks
omitted).
B. Nickolson’s Other Claims
Nickolson claims error in not providing the jury with a separate instruction on
police officer credibility. Nickolson correctly asserts “[a] defendant is entitled to have
the judge instruct the jury on his theory of defense, provided that it is supported by
law and has some foundation in the evidence.” However, “it is not reversible error to
reject a defendant’s proposed instruction on his theory of the case if other instructions,
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in their entirety, adequately cover that defense theory.” United States v. Mason, 902
F.2d 1434, 1438 (9th Cir. 1990).
Here, the proffered instruction was sufficient. The officers’ ability to witness
the outcome and their motivation were the defense’s two theories at trial. The general
credibility instructions, together with the testimony attacking the officers’ veracity,
were sufficient to caution the jury to questions surrounding the officers’ credibility.
See United States v. Tamura, 694 F.2d 591, 602 (9th Cir.1982).
Nickolson’s claim of prosecutorial misconduct also fails. “Reversal on this
basis is justified only if it appears more probable than not that prosecutorial
misconduct materially affected the fairness of the trial.” United States v. Sayakhom,
186 F.3d 928, 943 (9th Cir.), amended by 197 F.3d 959 (9th Cir. 1999).
The prosecutor’s misstatement here was more minor than Nickolson portrays
it: The evidence showed Nickolson did say he touched the gun, but he did not testify
to this, which had to have been plain to the jury because he did not testify at all.
Understood properly, the misstatement was inadvertent and minimal and does not rise
to prosecutorial misconduct sufficient to require a new trial, cf. United States v. Smith,
962 F.2d 923, 935 (9th Cir. 1992) (new trial due to “prosecutor’s recurrent harping”
on key issue), particularly when the jury knew the statement had to be incorrect.
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Finally, Nickolson’s alleged “traces” of cumulative error are insufficient in light
of his other claims, which we have rejected. See United States v. Necoechea, 986 F.2d
1273, 1282 (9th Cir. 1993).
AFFIRMED.
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