Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 1 of 74
C.A. No. 10-10131 D. Ct. No. CR 08-1329-PHX-ROS
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAMIEN MIGUEL ZEPEDA,
Defendant-Appellant.
ON APPEAL FROM A JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
------BRIEF OF APPELLEE ------
ANN BIRMINGHAM SCHEEL JOAN G. RUFFENNACH Acting United States Attorney Assistant U.S. Attorney District of Arizona Two Renaissance Square 40 North Central Avenue, Suite 1200 RANDALL M. HOWE Phoenix, Arizona 85004-4408 Deputy Appellate Chief Telephone: (602) 514-7500 Attorneys for Appellee
Submitted via ECF: December 1, 2011 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 2 of 74
I. TABLE OF CONTENTS
Page I. Table of Contents...... i II. Table of Authorities...... iii III. Statement of Jurisdiction A. District Court Jurisdiction...... 1 B. Appellate Court Jurisdiction...... 1 C. Timeliness of Appeal...... 1 D. Bail Status...... 1 IV. Issues Presented...... 2 V. Statement of the Case A. Nature of the Case; Course of Proceedings...... 3 B. Statement of Facts...... 5 VI. Summary of Arguments...... 30 VII. Arguments A. Defendant’s Stipulation to the Admission of the Tribal Enrollment Form and the Ballistics Report Waives His Confrontation Clause Challenge...... 32 B. The Trial Court Did Not Plainly Err by Failing to Sua Sponte Give a Voluntary Intoxication Instruction...... 34 C. Defendant’s Convictions Should Not Be Reversed on the Basis of Vouching or Instructional Error...... 38 D. The Prosecutor’s Closing Argument Did Not Misrepresent Crucial Evidence or Encourage a Retributive Blanket Verdict...... 51 E. Defendant’s Counsel Was Not Ineffective...... 56
i Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 3 of 74
F. Sufficient Evidence Supports the Jury’s Verdicts...... 57 G. There Was No Cumulative Error...... 60 H. 18 U.S.C. § 924(c) Mandates Enhanced, Consecutive Sentences for the Four Firearms Counts, Regardless of the Sentencing Guidelines...... 61 VIII. Conclusion...... 63 IX. Statement of Related Cases...... 64 X. Certificate of Compliance...... 65 XI. Certificate of Service...... 66 XII. Addendum to Brief of Appellee...... 67
ii Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 4 of 74
II. TABLE OF AUTHORITIES
CASES
Butcher v. Marquez, 758 F.2d 373 (9th Cir. 1985)...... 32, 36
Commonwealth of the Northern Mariana Islands v. Bowie, 243 F.3d 1109 (9th Cir. 2001)...... 41-42
Crawford v. Washington, 541 U.S. 36 (2004)...... 33
Greer v. Miller, 483 U.S. 756 (1987)...... 49
Jackson v. Virginia, 443 U.S. 307 (1979)...... 57
Johnson v. United States, 520 U.S. 461 (1997)...... 34
Pepper v. United States, 131 S.Ct. 1229 (2001)...... 61
United States v. Barrett, 703 F.2d 1076 (9th Cir. 1983)...... 45
United States v. Bear, 439 F.3d 565 (9th Cir. 2006)...... 33, 35
United States v. Beltran-Moreno, 556 F.3d 913 (9th Cir. 2009)...... 62
United States v. Blueford, 312 F.3d 962 (9th Cir. 2002)...... 55
United States v. Brooks, 508 F.3d 1205 (9th Cir. 2007)...... 38, 44
United States v. Bruce, 394 F.3d 1215 (9th Cir. 2005)...... 57
United States v. Carranza, 289 F.3d 634 (9th Cir. 2007)...... 57
United States v. Demma, 523 F.2d 981 (9th Cir. 1975)...... 36
United States v. English, 92 F.3d 909 (9th Cir. 1996)...... 46
iii Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 5 of 74
United States v. Frederick, 78 F.3d 1370 (9th Cir. 1996)...... 60
United States v. Giraldo, 822 F.2d 205 (2d Cir. 1987)...... 39
United States v. Goldstein, 532 F.2d 1305 (9th Cir. 1976)...... 33
United States v. Halbert, 640 F.2d 1000 (9th Cir. 1981)...... 44
United States v. Hendrix, 549 F.2d 1225 (9th Cir. 1977)...... 45
United States v. Hernandez, 876 F.2d 774 (9th Cir. 1989)...... 48
United States v. Houston, 648 F.3d 806 (9th Cir. 2011)...... 50
United States v. Kidder, 869 F.2d 1328 (9th Cir. 1989)...... 61
United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993)...... 55
United States v. Lopez-Alvarez, 970 F.2d 583 (9th Cir. 1992)...... 52
United States v. Martin, 489 F.2d 674 (9th Cir. 1973)...... 33
United States v. McGregor, 529 F.2d 928 (9th Cir. 1976)...... 32
United States v. McKoy, 771 F.2d 1207 (9th Cir. 1985)...... 46
United States v. Mejia, 559 F.3d 1113 (9th Cir. 2009)...... 60
United States v. Montgomery, 150 F.3d 983 (9th Cir. 1998)...... 37
United States v. Necoechea, 986 F.2d 1273 (9th Cir. 1993).. . 38, 44-45, 49, 56, 60
United States v. Riskin, 788 F.2d 1361 (8th Cir. 1986)...... 40
United States v. Rocha, 598 F.3d 1144 (9th Cir. 2010)...... 57-58
United States v. Rudberg, 122 F.3d 1199 (9th Cir. 1997)...... 34, 46-47
iv Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 6 of 74
United States v. Sayetsitty, 107 F.3d 1405 (9th Cir. 1997)...... 35
United States v. Shaw, 829 F.2d 714 (9th Cir. 1987)...... 42
United States v. Simtob, 901 F.2d 799 (9th Cir. 1990)...... 43, 49
United States v. Span, 970 F.2d 573 (9th Cir. 1992)...... 38
United States v. Stinson, 647 F.3d 1196 (9th Cir. 2011)...... 56
United States v. Sullivan, 522 F.3d 967 (9th Cir. 2008)...... 51, 53
United States v. Torres, 733 F.2d 449 (7th Cir. 1984)...... 34
United States v. Vaglica, 720 F.2d 338 (5th Cir. 1983)...... 55
United States v. Vavages, 151 F.3d 1185 (9th Cir. 1998)...... 39
United States v. Washington, 819 F.2d 221 (9th Cir. 1987)...... 36
United States v. Weatherspoon, 410 F.3d 1142 (9th Cir. 2005)...... 54
Villafuerte v. Stewart, 111 F.3d 616 (9th Cir. 1997)...... 37
Yeti By Molly Limited v. Deckers Outdoor Corporation, 259 F.3d 1101 (9th Cir. 2001)...... 32
STATUTES
18 U.S.C. § 2...... 3
18 U.S.C. § 113(a)(3)...... 3, 58
18 U.S.C. § 113(a)(6)...... 3
v Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 7 of 74
18 U.S.C. § 371...... 3
18 U.S.C. § 924(c)...... 61-62
18 U.S.C. § 924(c)(1)(A)...... 3
18 U.S.C. § 924(c)(1)(A)(iii)...... 62
18 U.S.C. § 924(c)(1)(C)(i)...... 62
18 U.S.C. § 1153...... 3
18 U.S.C. § 3231...... 1
18 U.S.C. § 3509...... 7
18 U.S.C. § 3553(a)...... 61
28 U.S.C. § 1291...... 1
RULES
Fed. R. App. P. 4(b)...... 1
vi Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 8 of 74
III. STATEMENT OF JURISDICTION
A. District Court Jurisdiction
The district court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231 because Defendant/Appellant Damien Miguel Zepeda (“Defendant”) was charged with federal crimes. (CR3;ERI.)1
B. Appellate Court Jurisdiction
This Court has jurisdiction pursuant to 28 U.S.C. § 1291 based on the district court’s sentencing of Defendant on March 22, 2010, and entry of final judgment on
March 24, 2010. (CR164,165;SER1-4.)
C. Timeliness of Appeal
On March 25, 2010, following entry of final judgment, Defendant filed a timely notice of appeal pursuant to Fed. R. App. P. 4(b). (CR167;ERI.)
D. Bail Status
Defendant is in Bureau of Prisons custody; his current release date is October
9, 2087.
1“CR” refers to the Clerk’s Record and is followed by a document number. “RT” refers to the Reporter’s Transcript of the trial and will be followed by page numbers. “Ex.” followed by a number refers to a trial exhibit. “ER” and “SER” refer to the Excerpts and Supplemental Excerpts of Record, respectively, and will be followed by Volume or page numbers.
1 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 9 of 74
IV. ISSUES PRESENTED
A. Whether Defendant’s Stipulation to the Admission of the Tribal Enrollment Form and the Ballistics Report Waives His Confrontation Clause Challenge.
B. Whether the Trial Court Plainly Erred by Failing to Sua Sponte Give a Voluntary Intoxication Instruction.
C. Whether Defendant’s Convictions Should Be Reversed on the Basis Of Vouching or Instructional Error.
D. Whether the Prosecutor’s Closing Argument Misrepresented Crucial Evidence or Encouraged a Retributive Blanket Verdict.
E. Whether Defendant’s Counsel Was Ineffective.
F. Whether Sufficient Evidence Supports the Jury’s Verdicts.
G. Whether There Was Cumulative Error.
H. Whether 18 U.S.C. § 924(c) Mandates Enhanced, Consecutive Sentences for the Four Firearms Counts, Regardless of the Sentencing Guidelines.
2 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 10 of 74
V. STATEMENT OF THE CASE
A. Nature of the Case; Course of Proceedings.
On November 12, 2008, a federal grand jury in the District of Arizona charged
Defendant and his brothers Matthew and Jeremy Zepeda with: Count 1: conspiracy to commit assault with a dangerous weapon and assault resulting in serious bodily injury, in violation of 18 U.S.C. §§§ 1153, 371, and 2; Count 2: assault resulting in serious bodily injury against Dallas Peters, in violation of 18 U.S.C. §§§ 1153,
113(a)(6), and 2; Count 3: use of a firearm during a crime of violence as charged in
Count 2, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2; Counts 4, 6, and 8: assault with a dangerous weapon against Dallas Peters, Stephanie Aviles, and Jane Doe, respectively, in violation of 18 U.S.C. §§§ 1153, 113(a)(3) and 2; and Counts 5, 7, and 9: use of a firearm during the crimes of violence charged in Counts 4, 6, and 8, respectively, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2. (CR3;ERI.)
On March 24, 2009, Matthew Zepeda pled guilty to Counts 2 and 3 pursuant to a written plea agreement that provided for a stipulated sentence of five to ten years in exchange for dismissal of the remaining charges. (CR33,34.) On March 26, 2009,
Jeremy Zepeda waived indictment and pled guilty to misprison of a felony. (CR38-
42.) Both Matthew and Jeremy agreed to testify at Defendant’s trial, which began on
October 20, 2009. (CR95.)
3 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 11 of 74
During Matthew’s testimony on October 21, 2009, the prosecutor objected in front of the jury that “. . . he is committing perjury” (RT341;ERII), and at the end of the day Defendant moved for a mistrial based on the objection. The court took the motion under advisement and requested briefing. (CR96,99;RT403-05;ERII;RT530-
33;SER165-168.)
On October 27, 2009, the court denied Defendant’s motion for judgment of acquittal, heard argument on the mistrial motion, made factual findings, and orally denied the motion. (CR105;RT730-33;ERIV.) Defendant later testified, the defense rested, and the court denied a renewed motion for acquittal. (RT790-91;SER212-
213.) On October 29, 2009, the jury found Defendant guilty of all charges. (CR108.)
Defendant filed a sentencing memorandum asking the court to disregard the mandatory, consecutive sentencing requirements of his § 924(c) convictions, seeking instead a sentence of twenty five to thirty five years. (CR161.) The government opposed the request. (CR163.) The court sentenced Defendant to 1,083 months’ imprisonment consisting of 60 months on Count 1, 63 months each on Counts 2, 4,
6, and 8, 120 months on Count 3, and 300 months each on Counts 5, 7, and 9. The sentences on Counts 3, 5, 7, and 9 (§ 924(c) convictions) were ordered to run consecutive to one another and to the concurrent sentences imposed on Counts 1, 2,
4, 6, and 8. (CR165;SER1-4.)
4 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 12 of 74
B. Statement of Facts.
1. The Offense Conduct.2
At 11:00 p.m. on Saturday, October 25, 2008, on the Ak-Chin Indian reservation in the District of Arizona, Officer Dan Reardon responded to a call of
“shots fired in progress” at 41905 West Cotton Lane, a home belonging to Dallas
Peters, a member of the Ak-Chin Indian Community. (RT92-93,95,98,104,451;
SER29-31,33,37,144.) When he arrived at the home, Officer Reardon saw a blood trail leading from an area near the garage door to the front door of the house.
(RT96,104-05;SER32,37-38 .) He entered the house and found three hysterical women standing over a shirtless man lying face-down on the floor. The women were frantic and the man’s back and shoulders were bloody, as was the floor around him.
(Ex.31,32;SER238-39;RT98,106,125-26;SER33,39,47-48.) One of the women exclaimed, “They shot my husband,” and the officer realized the man on the floor was
Dallas Peters and the woman was Jennifer, Dallas’ wife. (RT98-99;SER33-
34.) He quickly checked the house for firearms3 and to make sure nobody else was inside, then turned his attention to Dallas. (RT113-15;SER40-42.)
2This section excludes testimony by Matthew or Jeremy; their testimony is set forth separately below.
3Dallas did not have a gun that night. (RT135;SER52(Jennifer); RT264; SER105(Kassee);RT289;SER118(Stephanie);RT598;SER189 (Dallas).).
5 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 13 of 74
Jennifer told Officer Reardon, “They ran around back and might be hiding in the bushes.” (RT100;SER35.) He radioed for emergency medical services and simultaneously scanned the back of the house for suspects. He saw no one. (RT100-
01;SER35-36.) Other officers and emergency medical personnel responded, Dallas was air evacuated to the hospital, and the investigation was turned over to Ak-Chin
Detective Solis and the Federal Bureau of Investigation (FBI). (RT100,116-
18,123;SER35,43-46.)
Dallas was treated at the hospital for life-threatening gunshot wounds caused by a larger caliber weapon, and for lesser penetrating wounds to his upper torso caused by multiple shotgun pellets. (RT554-58,560-62,567-69,577;SER169-76,179-
81,186.) He was in shock and severe pain, had an elevated heart rate, and bled profusely from a gunshot wound to his wrist. (RT557-58,564-65,578;SER172-
73,177-78,187.) He underwent immediate surgery to reconstruct the common femoral vein in his left leg and abdomen caused by a large-caliber gunshot wound. (RT571-
72;SER182-83.) He was hospitalized for over a month and underwent seven more surgeries before his abdomen could be closed. (RT627-28;ERIII;RT572-74;SER183-
85.) Scarring to his thigh, abdomen, and wrist caused permanent disfigurement.
(RT579;SER188.)
6 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 14 of 74
Investigation revealed that earlier that day, Jennifer, Dallas, and his sister
Kassee attended a time-share presentation at a Phoenix resort. Afterward, they picked up Kassee’s one-year-old son and two-year-old nephew and returned to the Peters’ home. (RT132,165,238,240-41;SER49,66,87-89.) Sometime after they arrived, Jane
Doe4 called to ask if Dallas was willing to do a tattoo. (RT133;SER50.) Dallas agreed, so Jane and her cousin Stephanie Aviles drove over to the Peters’ home.
(RT133-34;SER50-51.)
Stephanie had been released from jail three days earlier after serving two years for a probation violation. (RT280-81;SER111-12.) She had been in a relationship with Defendant for about eight months before being incarcerated, but broke things off before her release, telling him she just wanted to be friends. (RT279-83;SER110-14.)
Defendant had called her on her cell phone before she and Jane left for Dallas’ house, but she did not want to talk to him and had Jane answer. (RT287-88;SER116-17.)
Jennifer, Dallas, and Kassee greeted Jane and Stephanie when they arrived. (RT243,288;SER90,117;RT357-58;SER134-35.) Dallas, shirtless, was the only man at the house. (RT262,264;SER105,107(Kassee); RT289,311;
SER118,124(Stephanie).). Jane and Stephanie waited in the living room for Dallas
4Jane was 17 years old at the time of trial; her true name was redacted from the transcripts pursuant to 18 U.S.C. § 3509.
7 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 15 of 74
to prepare his tools and Jennifer and Kassee returned to the master bedroom to finish cleaning a closet. (RT134,244,287;SER 51,91,116.)
Dallas had just completed the “j” in the phrase, “only God can judge me” on
Stephanie’s upper chest when Defendant arrived, asking to speak with Stephanie.
(RT284,290-91;SER115,119-20;RT365-66;ERII.) Dallas had never seen Defendant before. (RT605-06;ERIII.) Stephanie did not want to talk to Defendant, but Jane talked her into going outside. (RT291-92;SER120-21;RT368; ERII.)
Kassee left the master bedroom to get her phone charger and overheard
Stephanie and Jane speaking loudly in the kitchen. She returned to the bedroom to lay down with the babies to try and get them to sleep. (RT244-45;SER91-92.) She heard voices again a short time later, so she went back down the hall to investigate.
(RT245;SER92.) She found Dallas and Jane on the front porch watching Defendant and Stephanie. She got Jennifer and joined Dallas and Jane outside. (RT138-39,246-
47;SER53-54,93-94.)
Defendant was alone, facing them; Stephanie had her back to them.
(Ex.2;SER233;RT140,245-46,293;SER55,92-93,122.) Jennifer had a clear view of
Defendant and saw that he was angry and trying to convince Stephanie to walk down the street with him, but Stephanie kept saying, “No.” (RT141-42,293; SER56-
57,122.) Defendant “kept pointing to his left,” and Jennifer looked to see why
8 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 16 of 74
Defendant wanted Stephanie to go down that way, but could not see anything.
(RT141-43;SER56-58.)
Kassee went inside to call Javier Zepeda, her aunt’s boyfriend. (RT248-
49;SER95-96.) Meanwhile, Defendant asked for privacy, so Jennifer, Jane, and
Dallas went back inside. (RT143;SER58;RT609;ERIII.) Dallas was not annoyed by
Defendant’s privacy request and did not exchange any angry words with Defendant.
He felt the argument was none of his business. He just did not want any trouble on his property. (RT194;ERI;RT609-10;ERIII;RT680;SER197.)
Jennifer resumed cleaning her closet. (RT144;ERI.) She dragged a large bag down the hallway to throw in the trash. Jane accompanied her to the street to help throw away the bag. (Ex.6;SER234;RT144-45;ERI;RT371-72;ERII.) When Jane and
Jennifer went back inside, Defendant and Stephanie were still talking at the end of the driveway. (RT145,372;ERII.) They were only inside for a minute when Jane heard them “getting louder,” so she went back outside and told Stephanie they had to leave.
(RT373;ERII.) Stephanie started toward the house, but Defendant grabbed her arms and pulled her. She pushed him away and told Jane to go inside. (RT293-
94;SER122-23.) When Stephanie pushed Defendant, she felt something hard in his pocket. (RT293-95;ERII.) It crossed her mind that it was a gun. She was afraid he
9 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 17 of 74
might start something, so she told him not to do anything stupid because she could not go back to prison. (RT295;ERII.)
She turned away from Defendant, and he hit the back of her head with something hard. She ended up on her stomach in the dirt on the side of the house.
(RT296-97;ERII.) The blows Defendant struck were so hard that she saw “flashes” of light and felt “numb.” (RT298-99;ERII.) All of a sudden it got quiet, and she realized Defendant was no longer hitting her anymore. She heard gunshots “like, up in the air, like three times really fast.” (RT297-98;ERII.) She looked around and saw
Defendant and Dallas in the corner. (RT315;ERII.) Scared, she got up and ran. She lost her shoe, grabbed it, and ran without looking back. (RT298,314-15;ERII.) She heard more gunshots immediately after she got inside. (RT299-300;ERII.)
Jane remembers being in a “tug-of-war” with Defendant over Stephanie. She pulled Stephanie and they ran toward the front of the house but then stopped. Jane saw Defendant wave something. She thought it was his hand. Stephanie fell to the ground. Jane saw that Defendant had pulled a handgun, and he pointed it directly at her, calling her a “bitch.” (RT373-74,387;ERII.) She remembers running to the side of the house and hearing gunshots. She fell and felt something heavy on her; it was
Dallas. (RT374,387-88,390-91;ERII.) It “was really weird because [she] could feel like. . .vibrating sensations on [her] back” and “a whole bunch of, like, tick-tick
10 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 18 of 74
noises going off and off and off.” (RT380;ERII.) She knew that the sound was gunshots because when she turned around she saw Defendant standing to the right, firing the gun. (RT381,393-94;ERII.)
Jane noticed blood on her back when she got up. Dallas said, “I’ve been shot.”
He pushed her and told her to run, so she did. She tripped on some uneven concrete when she ran to the back of the house. (RT374,380,393;ERII.) Looking up, she saw someone she believed was Jeremy holding a shotgun. He started to shoot as she ran in the house.5 (RT374;ERII.)
Shortly before the gunfire started, Jennifer went into the living room. The back door was open and Dallas was on the porch urinating. (RT145-47;ERI;RT611-
12;ERIII.) No one was in the house, so Jennifer looked out the front door. She saw
Stephanie run in her direction, trip, and catch herself on the corner of the garage.
(RT146;ERI.) Defendant was right behind Stephanie, coming after her. Jennifer saw him stumble off the sidewalk while “frantically reaching in his pocket.”
5Detective Solis documented evidence found at the scene. (Ex.15;SER236.) The diagram she created indicates projectile paths and locations where officers found blood, shell casings, ammunition fragments, and live rounds of 9-millimeter ammunition as well as damage to the exterior walls, window sills, and garage windows. (Ex.15;RT455-58;SER236,145-48.) She documented a blood trail on the patio leading to the house, shotgun pellets and bullet fragments by the damaged stucco pillar, and 12-gauge Winchester shotgun casings in the back yard. (Ex.15,33;SER236;RT465-67,475;SER154-56,161.)
11 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 19 of 74
(RT146;ERI.) She saw him pull out a gun, move his hands as if to put a clip into it, and heard a “clicking noise” consistent with a clip’s insertion into a gun.
(RT147,159-61,184-86;ERI.) She slammed the door shut and turned off the lights as she heard gunfire in front of the house. (RT146-47,159-61,184-86;SER59-60,63-
65,67-69.)
Kassee finished her phone call to Javier Zepeda just before the gunfire started.
She looked out the bedroom window through the blinds and saw Defendant pointing a gun toward the front door and “messing” with it as though it were jammed.
(RT249-50,254,270-71;SER96-97,99,108-109.) The gunfire started. She ran, got the babies, brought them into the hallway, and dialed 911. (RT250-51;SER97-98.)
Gunfire erupted while Dallas was urinating by the third pillar on the back porch. He looked around and did not see anyone until he walked around the southeast corner of the house. He saw Jane running toward him and pulled her to him to shield her. (RT612,616;ERIII.) He remembers getting shot. He did not feel it, but he knew it because he saw blood spurting out of his shoulder as he grabbed Jane and turned her to shove her toward the back door. (RT612,616-17;ERIII.)
Meanwhile, having heard gunfire Jennifer ran to the back door calling for
Dallas. She opened the door and heard someone in the trees but saw no one.
(Ex.2;SER233;RT148;ERI.) She stepped outside and saw Dallas and Jane up against
12 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 20 of 74
southeast corner of the house. (RT148-49;ERI.) Dallas told Jennifer to get back inside, then pushed Jane, telling her to go inside too. (RT612-13;ERIII.) Jane could not get in because Jennifer had locked the door. (RT150;ERI;RT617-18;ERIII.) She pounded on the door and Jennifer opened it. Jane, breathing hard, upset, and looking scared exclaimed, “They shot him!” (RT150-52;ERI;RT302;ERII.)
Gunfire continued as Jennifer and Jane ran to the hallway by the bathroom to join Stephanie, Kassee and the babies. (RT153;ERI;RT256;SER100;RT375;ERII.)
Stephanie had come in the front door as Jennifer went out the back door looking for
Dallas. (RT153;ERI;RT301,375;ERII.) The group huddled in the hallway, scared and hysterical. (RT256-58,260;SER100-02,104.) Stephanie complained to Kassee that Defendant had hit her on the head. She tilted her head forward and split her hair, asking if Kassee could see a mark. (RT257;SER101;RT302;ERII.) Kassee, not paying close attention because she was more concerned about the gunfire, said she did not see anything. (RT257-58;SER101-02.) She heard what sounded like rocks being thrown against the house and bathroom window; she had heard the same sound when she grabbed the babies off of the bed in the master bedroom to bring them into the hallway. (RT258-59;SER102-03.) Jennifer heard two shots fired a short time apart, then six to eight rapid-fire shots, and one final shot. (RT154,191;ERI.) In
13 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 21 of 74
between that gunfire she heard what sounded like pellets hitting the plaster and window on the back porch. (RT194;ERI.)
Dallas tried to get in the back door, but it was locked. He ducked for cover behind a trash can on the patio because he saw the silhouette of a person with a gun.
(Ex.6;SER234;RT613,618-19; ERIII.) That person advanced toward him, so he ran.
He heard gunfire but did not know who was firing or how many shots were fired because bullets flew past his ears, affecting his hearing.6 (RT613-16;ERIII.)
A second round of gunfire started seconds later. This gunfire was louder and came from the person whose silhouette he had seen. (Ex.6;RT619;ERIII.) Dallas found himself caught between the silhouetted person and the second gunman, who was by the master bedroom and shooting toward the back patio.7 (RT620,622;ERIII.)
The second gunman’s gun jammed, so Dallas ran at him, hitting him with his shoulder to disarm him. He was unsuccessful because the gunman “had more weight on him.”8
(RT621;ERIII.)
6He suffered a gunshot wound to his left ear. (RT637-38;SER193-94.)
7Officers found spent 12-gauge Winchester shotgun casings on the ground by the master bathroom. (RT468;SER157.) Bullet damage to the windowsill and exterior wall of the master bedroom indicated that shots were fired in an easterly direction toward the back patio. (Ex.15;SER236;RT467-68;SER156-57.)
8Matthew is 5’5” tall and weighs 180 to 190 pounds. (RT320;ERII.)
14 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 22 of 74
Dallas ran back toward the trash can on the patio to take cover in the trees but encountered the first gunman, who was looking down and trying to either reload or un-jam his gun. (RT622-23;ERIII.) He startled the gunman by rushing in and grabbing for the gun. They struggled and fell to the ground. Dallas could not hear, but he saw the gunman’s mouth moving as though he were yelling to someone.
Dallas managed to get his thumb on the trigger of the gun. He fired about eight times, trying to empty it.9 (Ex.6;SER234;RT624-25;ERIII;RT677;SER196.) He sustained wounds to the front of his body from 9-millimeter bullets, but said those wounds were not inflicted during the struggle for the gun. (RT663;SER195.)
When the gun was empty, Dallas let it go. The gunman grabbed the gun and ran off. (RT625;ERIII.) After a bit, Dallas walked to the front door and rang the door bell. (RT627;ERIII.) Jennifer looked out the blinds of the front bedroom before opening the door. Dallas shouted that it was him so she ran and let him in. He was covered in blood. (RT154-56,190; ERI;RT263-64;SER106-07.) He used the wall for support as he stumbled toward the kitchen, then slid down the wall onto the floor and lay bleeding. (Ex.31;RT157-58,264;SER238,61-62,107; RT375;ERII.)
9Officers found a “scuffle area” in the dirt approximately 18 to 20 feet from the southeast corner of the house, one live 9-millimeter round, shell casings, and another blood trail. (Ex.15,25;SER236-37;RT463-64,472;SER152-53,160.)
15 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 23 of 74
A subsequent search of Defendant’s bedroom revealed 9-millimeter and 12- gauge shotgun ammunition. (RT478,700-01;SER164,199-200.) A full box of 9- millimeter ammunition holds 50 rounds; there were 25 live rounds in the box. FBI
Agent Catey personally compared those 25 live rounds to the 25 rounds (21 spent and
4 live) collected from the scene. He determined they were of the same type and caliber. (Ex.38,39;SER241-42;RT694-95;ERIV;RT701-02;SER200-01.) He also determined that the 12-gauge Winchester shotgun shells in Defendant’s room were the same type, brand, and color as the spent shotgun casings recovered from the scene. (RT702;SER201.)
Agent Catey, interpreting a ballistics report prepared by Agent Webb, testified that three of the twenty-one spent 9-millimeter cartridges recovered from the scene were fired from the same firearm, and another fourteen had been loaded into and extracted from that same firearm. The three 12-gauge shotgun shells recovered from the scene were all fired from the same shotgun. (Ex.41;RT693-98;ERIV.)
3. Jeremy’s Testimony.
On March 26, 2009, Jeremy pled guilty to misprison of a felony in exchange for dismissal of the indictment against him and no agreement regarding sentencing.
(CR38-42.) He testified that he pled guilty in “this case” and was sentenced (on June
1, 2009) to three years’ imprisonment, but he hoped to get a sentence reduction from
16 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 24 of 74
the trial judge. (CR58,59,61;RT502-03;ERIII.) Post-trial, on November 11, 2009, the court reduced his sentence to time served. (CR135.)
Jeremy testified that on October 25, 2008, Defendant called and invited him to a party. (RT507;ERIII.) Defendant asked if he knew someone named “Goofy,” and
Jeremy said he did not. Defendant told him “Goofy” was Dallas Peters. Jeremy knew
Dallas. (RT508;ERIII.) Defendant and Matthew arrived with “some white guy” to pick him up. Jeremy sat in back with Matthew. (RT513-15;ERIII.) At some point a police car drove up behind them. Defendant told the driver to slow down because
“he had some heat on him or something like that[,]” which meant to Jeremy that
Defendant had a gun. The driver slowed down. (RT516;ERIII.)
Jeremy and Matthew drank malt liquor, and all four of them smoked marijuana as they drove around for about 30 minutes. (RT517,539;ERIII.) The driver dropped the three brothers off at the end of a street. They walked down the street, and Jeremy recognized Dallas’ house because he used to babysit Dallas’ nephew. (RT518-
19,543;ERIII.) He saw Defendant get out the car with two guns that he described as a pistol with a large clip and a sawed-off, break-action shotgun with a pistol grip.
(RT521-22,524;ERIII.) When they got out of the car “they were supposed to give” the shotgun to Jeremy. (RT522;ERIII.) Defendant tried to hand the shotgun to him but he refused to take it, so Defendant gave it to Matthew. (RT522-23;ERIII.)
17 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 25 of 74
Jeremy testified, “I didn’t want to be involved in what was – when we were there because I heard that he was supposed to go talk to him and so forth and I didn’t want to be involved in it because I know the dude.” (RT519-20;ERIII.)
Defendant had the pistol when he walked to the front door. (RT524,534-
36;ERIII.) Jeremy and Matthew went to the west side of the house. Jeremy told
Matthew he did not want to be involved because he was on parole and could not be around guns and because his daughter and his “lady” were related to the people in the house. (RT524,526,550;ERIII.) He walked off “to leave the scene of the crime.”
(RT550;ERIII.) As he walked off he heard gunshots. He returned to see if his brothers were okay. He saw Defendant involved in “a tussle” with Dallas at the back of the house. He did not get involved because Defendant “had it under control.”
(RT527,538;ERIII.)
4. Matthew’s Testimony.
Matthew pled guilty to assault resulting in serious bodily injury to Dallas Peters and possession of a firearm during a crime of violence pursuant to a written plea agreement that provided for a stipulated sentence of five to ten years in exchange for dismissal of the remaining charges. (CR33,34;RT226-28;ERII.) The agreement required Matthew to swear under oath to the accuracy of the written factual basis supporting his plea. (CR156;SER5-13.) Matthew subsequently gave two “free
18 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 26 of 74
talks,” during which he provided facts substantially similar to the factual basis supporting his plea colloquy, and agreed to testify at Defendant’s trial. (RT336-
39;ERII.) His sentencing was postponed until after he testified; on January 12, 2010, he was sentenced to 75 months’ imprisonment. (CR145,153.)
On October 25, 2008, Matthew and Defendant lived together. They share the same father and are both one-half Native American. (RT203;ERII.) Sometime after
8:00 p.m., Matthew agreed to “check out” a party with Defendant. (RT202-
03,207;ERII.) He and Defendant drank beer for 15-20 minutes until a car came and picked them up; he did not know the driver. (RT208-09;ERII.) Matthew sat in back and Defendant sat in front. They drove around for a while smoking marijuana, then they picked up Jeremy at his girlfriend’s mother’s house. (RT209-11;ERII.) Jeremy sat in back with Matthew. (RT213;ERII.)
They stopped to buy beer then drove home to get more marijuana and wraps.
(RT213-14;ER II.) Defendant and Matthew went to their own bedrooms; when they left the house something about Defendant caught Matthew’s eye. He saw a lump at
Defendant’s waist that could have been a gun. (RT214-17;ERII.)
They got back in the car and drove for about ten minutes. Defendant gave the driver directions. They were dropped off down the street from a house. (RT217-
18;ERII.) As Matthew got out of the car, Defendant told him to grab what was under
19 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 27 of 74
the seat. Matthew pulled out a 12-gauge, single-shot shotgun, the kind that splits in the middle to load. (RT219-21;ERII.) Jeremy stood next to them as Defendant gave
Matthew some shotgun shells, told him how to open the gun to load it, and showed him how to close it. (RT221-22, 321;ERII.) Defendant told Matthew that “if something happens, just like give off a shot[.]” (RT223;ERII.)
Matthew denied that Defendant told him to shoot when he heard shots fired.
This caused the prosecutor to attempt to impeach him with prior statements from his plea colloquy. (RT223;ERII.) The judge called a side bar and requested that
Matthew’s counsel be present before he resumed testifying “because he’s obviously not telling the truth as far as I’m concerned.” (RT224-25;ERII.) The prosecutor attributed Matthew’s equivocal testimony to “stupidity,” but agreed to remind him of the importance of telling the truth. (RT225-26;ERII.)
Testimony resumed. Matthew acknowledged his guilty plea to charges arising out of this case, his agreement to testify truthfully, and his expectation that the trial judge would consider his testimony and sentence him to between five and ten years.
(RT226-28;ERII.) He agreed that the prosecutor had advised him of the importance of telling the truth, that he knew what it meant to lie under oath, and that he promised in court to tell the truth; he denied, however, ever hearing the word “perjury” or knowing it was a crime to lie after promising to tell the truth. (RT228;ERII.) The
20 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 28 of 74
court called a recess to explain to Matthew the concept and consequences of perjury and instructed him to consult with his lawyer before any further testimony. (RT228-
30;ERII;RT231-35;SER82-86.)
Matthew consulted with counsel and resumed testifying. He said he was nervous about being labeled a “snitch.” (RT318-20;ERII.) Using a previously- prepared diagram, he testified that “J, M” marked where he and Jeremy stood (on the west side of the house) with the loaded shotgun. (Ex.7;SER235;RT325-26,329;ERII.)
He fired the shotgun in a southerly direction. (Ex.7;SER235;RT328,330;ERII.) He fired blindly because his distance and night vision were impaired and he did not wear glasses. (RT204-05;ERII.) He was not afraid of hitting Defendant, however, because he knew Defendant was not on that side of the house. (RT331;ERII.)
He heard gunfire after the first shot. He fumbled with the shotgun trying to reload it. Bullets were flying, he was scared, and he fired a second shot toward the east. Afterward, Defendant ran up from behind the house, scared and dirty as though he had been wrestling in the dirt, and said something like, “I didn’t do it; right?”
(Ex.7; SER235;RT331-32,334;ERII.) Matthew dropped the shotgun and ran. He heard three or four shots after that. (RT335;ERII.)
21 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 29 of 74
4. Defendant’s Testimony.
Defendant called Stephanie around 7:30 p.m. on October 25, 2008, after
Matthew left home to cash a check and pick up some fast food. Jane answered and told him Stephanie could not talk because she was crying and in pain from getting a tattoo. He was concerned because he still considered Stephanie his girlfriend, even though he had not spoken with her since her release and he was not invited to her welcome home party. (RT737,740-43,760;ERIV;RT761;SER207.)
When Matthew returned, they drank beer, smoked marijuana, and played video games until Defendant’s landscaping customer came and picked them up. Neither he nor Matthew had a gun. (RT744;ERIV.) They cruised around drinking and smoking marijuana, picked up Jeremy, stopped for gas and beer for his brother, then returned home. A police car never followed them, but Defendant told the driver to slow down because they had “weed” in the car. (RT745-46;ERIV;RT766-67;SER209-10.)
They left again and headed for Dallas’ house because Defendant was concerned and bothered about Stephanie’s getting a tattoo. (RT746;ERIV;RT762;SER208.) He got his brothers before going to Dallas’ house because he wanted them with him.
(RT770;ERIV.) His brothers continued to drink, but he did not. He only smoked marijuana. He gave the driver directions. He did not know Dallas but knew where he lived because he had a friend in the neighborhood and saw Jane’s car in the
22 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 30 of 74
driveway. (RT746-47,768-69;ERIV.) He told the driver to let him out four houses away, then walked by himself to Dallas’ house. (RT755,770;ERIV.)
He knocked on the door and a man in a blue shirt answered. He asked for
Stephanie, she came out, and the two of them walked to the curb. (RT748-49;ERIV.)
They argued because Stephanie was on probation and he could smell alcohol on her breath. She got loud, he did not. He hit her once with his hand because he was angry.
(RT749-50,779;ERIV.) He did not have a gun. (RT772;ERIV.) After he hit
Stephanie, the man in the blue shirt came outside with Jane and a shirtless man.
Defendant asked them for privacy and “nobody said nothing[;]” they walked back inside. (RT750-51;ERIV.) After that, Defendant heard gunshots. Stephanie ran in the house and he ran toward the back of the house where it was “pitch black.”
(RT751;ERIV.) Defendant reached the corner of the house and ran into a man with something in his hands. They fought over the object. Defendant realized it was a gun when he heard gunfire. (RT752;ERIV.) Dallas had the gun and was trying to kill him. (RT782-83;ERIV.) Defendant was scared, in shock, and in fear for his life. He managed to get control of the gun. He shot Dallas in the leg, he thought, and fired one shot into the ground. He left the gun on Dallas’ chest and “took off running.”
(RT752-53;ERIV.) He did not know if the gun was empty. He ran south, behind the house, and he heard gunshots. He turned around and saw a shadow so he hid in the
23 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 31 of 74
bushes for a minute. He heard two more shots. When the gunfire stopped he ran away. (RT754;ERIV.) Defendant denied that his brothers were at Dallas’ house when he knocked on the door, that he instructed his brothers to hide in the bushes and come out shooting, that he had a firearm that night, and that the ammunition found in his bedroom was his. (RT754-56;ERIV.) He said he did not give Matthew a shotgun and had no plan. (RT789;ERIV.)
5. The Motion for Mistrial.
Defense counsel impeached Matthew with a previously undisclosed letter written by Matthew on October 2, 2009. (Ex.101;ERI;RT346;ERII.) Matthew testified that he told the prosecution at a pre-trial meeting that he did not want to testify, that “most of it was a lie before,” and that he had been threatened with perjury charges because he was not doing what his plea agreement required. (RT340-
41;ERII.) He was asked, “And so you changed your mind, then, and now you’re coming to testify based on that threat? This has nothing to do with possibly being labeled a snitch; is that correct?” (RT341;ERII.) Before Matthew answered, the prosecutor objected, asking to approach the bench. The judge asked, “What’s the objection?”, and the prosecutor responded, “The objection is that he is committing perjury.” (RT341;ERII.)
24 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 32 of 74
The parties addressed the objection briefly at side bar. Defendant made no motion for mistrial. (RT342-43;ERII.) Without objection, the judge instructed the jury “to ignore the last comment” made by the prosecutor: “I’m not quite sure what she said, frankly, and what she meant by what she said. But we talked about it at the side bar, and disregard anything that she said about this witness’s testimony.”
(RT343;ERII.)
After defense counsel completed cross-examination, the judge called a recess to discuss the undisclosed letter and directed Matthew to consult his attorney.
(RT346-51;SER128-33.) Defendant moved for a mistrial when court recessed for the day. The judge remarked that she was not sure that Defendant suffered any prejudice, since it was a government witness that allegedly committed perjury, but she requested briefing. (CR 96;RT403-05;ERII.)
The next day on redirect, Matthew testified that although difficult, he decided in consultation with his lawyer to plead guilty and to testify against his brother.
(RT411-12;ERIII.) He said that he responded affirmatively to a question on cross- examination about feeling “threatened” because a fellow inmate found a copy of his plea agreement and accused him of being a “snitch.” That scared him and caused him to tell his lawyer and the prosecution team, at a meeting just days before trial, that he did not want to testify. The “threat” was that his plea could be pulled and he would
25 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 33 of 74
be looking at more time if he did not testify. (RT413-17;ERIII.) He said that he was given the choice of going forward with his plea agreement or going to trial; he chose to go forward with his plea agreement. (RT417-18,427;ERIII.) He testified that no one in that meeting told him to lie; he told them that he lied during his first few contacts with law enforcement. (RT418;ERIII.)
Matthew agreed that he read his plea agreement before pleading guilty, that no one threatened or coerced him into pleading guilty, and that he told the truth at his plea hearing. (RT421-24; ERIII.) In his plea agreement he agreed that his job was to fire the shotgun; that he was supposed to fire it whenever he heard shots; and that
Defendant told him to fire the shots. (RT424;ERIII.) He testified that after he fired the first shot, he walked to where he fired the second shot, saw people on the back patio, and fired the second shot. (Ex.7;SER235;RT426;ERIII.)
Matthew testified on re-cross that he understood that he was under oath and he knew there are penalties for lying under oath. (RT432;ERIII.) The court admitted
Matthew’s letter into evidence. Matthew agreed that he intended for defense counsel to have it. (RT430,433;ERIII.) Defense counsel reviewed with him, almost line-by- line, what he wrote in the letter. (Ex101;ERI;RT433-39;ERIII.) Counsel asked him,
“how do we know when you’re telling the truth and when you’re lying?” Matthew responded, “My first original statements, all of those were a lie.” (RT438;ERIII.) He
26 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 34 of 74
denied that he lied “all through the last two days in front of th[e] jury,” or that he took opportunities to “pick and choose” when he told the truth: “I was telling the truth way before I even came in this courtroom.” (RT439-40;ERIII.) On redirect, he testified that once he signed his plea agreement he started telling the truth.
(RT443;ERIII.)
During a recess before the parties filed their mistrial pleadings, the judge gave her line-by-line interpretation of Matthew’s letter. (Ex.101;ERI;CR99;RT530-
33;SER165-68.) She orally denied the motion and issued a written order.
(CR130;SER14-16.) She concluded that even if the jury heard the perjury remark, it was “much more harmful to the government, who is now relying on that witness than it is to the defense.” (RT731;ERIV.)
6. The Prosecutor’s Closing Argument.
The prosecutor argued, without objection:
THE PROSECUTOR: What we do know is the defendant didn’t know Dallas and he had no previous problems with Dallas. He knew nothing about Dallas or his family. Dallas just happened to be the unfortunate person who was giving his ex-girlfriend a tattoo on her chest and the defendant was angry and he was really angry and he wanted to do something about it. He really wanted to cause some hurt.
And as testified to by Jeremy, he wanted to do some dirt. We’re going to do some dirt. He wanted to cause some pain to these people. So he went for his brothers. It wasn’t enough for him to go by himself. He went for his brothers. We know from Jeremy that he was looking for
27 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 35 of 74
Goofy and that is Dallas’s nickname. “Hey, how do I find Goofy? Where does Goofy live? We’re going to see Goofy.” The defendant simply didn’t think he could handle Dallas Peters on his own because the defendant was not interested in talking that night. He didn’t want to talk to Dallas Peters. He was looking for a fight. He wasn’t looking for a fistfight. He wasn’t looking for a fair fight. He was looking to do some dirt. He was looking for a dirty fight.
Three on one? The odds sound a lot better for the defendant or, in this case, three men, two fully loaded weapons against one unarmed man and a house with women and children.
So the defendant and his brothers needed firepower. They were looking for at least two guns. We heard about the defendant drinking beer. He’s smoking marijuana. He’s loaded with guns. He’s looking for a fight. And, remember, this all pertains to what we need to prove for an assault. Is this intentional conduct at this point? Absolutely. Is this reckless conduct? Most assuredly. Drunk and high loaded with guns.
The defendant told his brothers what he wanted them to do. Now, while the brothers Zepeda tried to minimize some of what happened, and maybe they didn’t know everything that was going to happen, but, again, remember, conspiracy, the co-conspirators don’t have to know everything. What the evidence did show is that there was an agreement to commit this crime. The brothers knew that the defendant wanted to find Goofy. They knew that he was armed. Matthew saw the bulge in the waistband. Jeremy heard the statements, “Hey, we’ve got the cops behind us. I have heat on me. I want to go do some dirt. We’re going to do some dirt,” and Jeremy actually saw both weapons as well. So the brothers were continuing to go along with the plan and this is the conspiracy. . . .
(RT837-39;ERV.)(Emphasis added.)
28 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 36 of 74
On rebuttal, the prosecutor argued:
THE PROSECUTOR: I talked a little bit earlier about co-conspirators and principals and aiding and abetting liability and I would submit to you, ladies and gentlemen of the jury, when you have Matthew firing that shotgun at the back porch at what he believes are several people on that back porch, that is a dangerous weapon. He has committed the crimes of assault with a dangerous weapon against XXXX and Dallas. And the defendant was an aider and abettor and he was a conspirator in that.
We also know the defendant was a principal. We know the defendant was, just as in my analogy the bank robber pointing the gun at the teller, he was a principal. We know that in his home he had matching ammunition for both guns. We know that seven people gave testimony that he, in fact, had a gun and we know that he talked about doing some dirt that night. . .
(RT865;ERV.)(Emphasis added.)
29 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 37 of 74
VI. SUMMARY OF ARGUMENTS
A. Defendant stipulated to the admission of the Tribal Enrollment Form and the ballistics report, thereby waiving his Confrontation Clause challenge.
B. The trial court did not plainly err by failing to sua sponte give a voluntary intoxication instruction. Defendant neither presented nor relied upon a voluntary intoxication defense. A voluntary intoxication defense was unsupported by the evidence, mutually exclusive to the defense Defendant offered, and would have severely undercut Defendant’s credibility.
C. Reversing Defendant’s convictions for vouching or instructional error is unwarranted. The vouching that occurred was either mild or caused prejudice to the government, not to Defendant. Substantial evidence independent of the vouched testimony supported the charges and the trial court’s accurate instructions cured any harm.
D. The prosecutor’s closing argument did not misrepresent crucial evidence or encourage a retributive blanket verdict. No one testified to Defendant having made a statement about “doing dirt,” but strong evidence suggested a plan/agreement and intent to do bodily harm, and the court’s comprehensive preliminary and final instructions adequately protected against a tainted or retributive verdict.
30 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 38 of 74
E. This Court should decline to consider Defendant’s argument on direct appeal that his trial counsel was ineffective or, in the alternative, find no error.
F. Strong and sufficient evidence showed that (1) Defendant had a gun;
(2) he used and discharged a gun in assaulting Dallas, Stephanie, and Jane; and (3) he did so with the specific intent to do them bodily harm.
G. The jury weighed the witnesses’ credibility against the Defendant’s and rejected Defendant’s version of events. In light of the strength of the government’s case, the efficacy of the preliminary, curative, and final instructions, and the fact that the government was more prejudiced by the perjury objection than Defendant, reversal for cumulative error is not warranted.
H. Enhanced, consecutive sentences for the four firearms counts are mandated by 18 U.S.C. § 924(c), regardless of the Sentencing Guidelines.
31 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 39 of 74
VII. ARGUMENTS
A. Defendant’s Stipulation to the Admission of the Tribal Enrollment Form and the Ballistics Report Waives His Confrontation Clause Challenge.
Defendant challenges on Confrontation Clause grounds the admission of the certified Tribal Enrollment form (Ex. 1) and a ballistics report (Ex. 41). Defendant, however, stipulated to both documents’ admission (RT447,686;SER143,198), thereby waiving any argument on appeal. “Stipulations are entered into in order to dispense with proof over matters not in issue, thereby promoting judicial economy at the convenience of the parties.”10 United States v. McGregor, 529 F.2d 928, 931 (9th Cir.
1976). “A stipulation or ‘[t]he withdrawal of an objection is tantamount to a waiver of an issue for appeal.’” Yeti By Molly Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101,
1108 (9th Cir. 2001).
Although the record states that “Exhibits 1 and 41” were moved into evidence
“consistent with” defense counsel’s “speculation,” the word “speculation” is an obvious transcription error. (RT447;SER143;RT814;ERV.) A written stipulation executed by both parties states that “Exhibit 1 and Exhibit 41 may be presented at
10The stipulation to these facts, in light of Defendant’s trial testimony, “was a reasonable and competent trial tactic for which counsel cannot be faulted” and does not demonstrate ineffective assistance of counsel. Butcher v. Marquez, 758 F.2d 373, 378 (9th Cir. 1985).
32 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 40 of 74
trial without any objection and their contents are stipulated to as fact.”
(Ex.48;SER246.) Additionally, the preliminary instructions informed jurors that
“there is a stipulation, which means an agreement, between the parties on certain elements in this case and the attorneys will tell you about it.” (RT78;SER26.)
Finally, when the prosecutor asked to publish Exhibit 41 because “Exhibit 41 has previously been admitted into evidence by stipulation,” the court stated “yes,” and defense counsel remained silent. (RT686;SER198.) See United States v. Bear, 439
F.3d 565, 572 (9th Cir. 2006) (ambiguity regarding nature of off-the-record stipulation “evaporate[d] upon consideration of counsels’ discourse at trial.”).
By stipulating to the admission of Exhibits 1 and 41 Defendant waived his
Confrontation Clause argument. United States v. Martin, 489 F.2d 674, 678 (9th Cir.
1973) (where government and defense stipulated to substance found in car and its chain of custody, and the agreement was recited in open court while defendant was present and made no objection, and where it might well have been an advantageous trial tactic not to dispute the indisputable, defense waived the right to confront witnesses testifying to such information); United States v. Goldstein, 532 F.2d 1305,
1315 (9th Cir. 1976) (no formal waiver by defendant is required).
In any event, the Tribal Enrollment form is a non-testimonial public record admissible without confrontation, Crawford v. Washington, 541 U.S. 36, 56 (2004);
33 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 41 of 74
United States v. Torres, 733 F.2d 449, 455 n.5 (7th Cir. 1984), and any error in the admission of the ballistics report did not affect Defendant’s substantial rights because overwhelming evidence showed Defendant’s guilt and substantial evidence showed that ammunition found at the scene belonged to Defendant. (Ex.38,39;SER241-
42;RT694-95;ERIV;RT701-02;SER200-01.)
B. The Trial Court Did Not Plainly Err by Failing to Sua Sponte Give a Voluntary Intoxication Instruction.
The parties jointly agreed to the proposed jury instructions. Defendant neither asked for nor objected to the absence of a voluntary intoxication instruction.11
(CR87.) He nevertheless claims the trial court plainly erred by failing to sua sponte give such an instruction. To establish plain error, Defendant must prove that (1) error occurred; (2) it was plain; (3) it affected substantial rights; and (4) it seriously affected the fairness, integrity, or public reputation of judicial proceedings. Johnson v. United States, 520 U.S. 461, 466-67 (1997). In applying the plain error standard, this Court considers all the circumstances at trial, including the strength of the prosecution’s case.12 United States v. Rudberg, 122 F.3d 1199, 1206 (9th Cir. 1997).
11See Addendum for the full text of the trial judge’s standing order requiring joint proposed instructions and verdict forms.
12The plain error standard of review applies to all of Defendant’s arguments unless otherwise expressly indicated; it therefore will not be repeated in the (continued...)
34 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 42 of 74
Defendant claims that United States v. Sayetsitty, 107 F.3d 1405 (9th Cir.
1997), supports his argument, but his reliance is misplaced. In Sayetsitty, the trial court denied a requested voluntary intoxication instruction because it erroneously believed aiding and abetting was not a specific intent crime, and the defendant did not object to the instruction as given. Id. at 1412. This Court held that failure to give the instruction was plain error because the second degree murder conviction was clearly based on an aiding and abetting theory and overwhelming evidence showed that the defendant smelled of alcohol, had bloodshot eyes, and was found passed out under a tree just moments after leaving a truck he was seen driving recklessly. Id. at 1412-
15.
Here, in contrast, Defendant neither presented nor relied upon a voluntary intoxication defense. His defense was that the government witnesses were intoxicated and lying, and he did not have a gun, Dallas did. (RT90-91;SER27-28.)
Only “[w]hen a defendant actually presents and relies upon a theory of defense at trial,” must the judge “instruct on that theory even where such an instruction was not requested.” Bear, 439 F.3d at 568, 569-71 (emphasis added) (where defendant’s testimony and closing argument made clear that claim of public authority was not
12(...continued) succeeding argument sections.
35 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 43 of 74
only the crux of her defense but her “sole theory of defense,” a jury instruction on that theory was required and the trial court plainly erred by failing to sua sponte give the instruction).
While true that “a defendant in a criminal proceeding may assert inconsistent defenses,” United States v. Demma, 523 F.2d 981, 985-86 (9th Cir. 1975), the failure to do so here was neither plain error nor ineffective assistance.13 Entitlement to a voluntary intoxication instruction requires evidence that (1) Defendant was intoxicated, and (2) his intoxication precluded him from forming the specific intent necessary to commit the crime. United States v. Washington, 819 F.2d 221, 225 (9th
Cir. 1987). There was testimony here that Defendant drank beer while at home and that he smoked marijuana in the car, but “there is no testimony, from medical experts or otherwise, suggesting that [he] generally lacked the mental capacity to form specific intent.” Id. (evidence of defendant’s disheveled, “lost” and “confused” appearance, odor of alcohol on his person, red eyes, fact he had soiled his pants, and presence of four empty beer bottles and a wine glass in the vehicle in which he drove were insufficient to support lack of intent and intoxication defenses in murder trial
13“Defense counsel need not request instructions inconsistent with its trial theory.” Butcher, 758 F.2d at 377.
36 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 44 of 74
where no testimony showed that he generally lacked the mental capacity to form specific intent).
Moreover, a voluntary intoxication defense suggests that Defendant had a gun.
Defendant was adamant that he did not have a gun. (RT772;ERIV;RT852-53;ERV.)
To argue he was too drunk to form the specific intent to commit assault with a deadly weapon is mutually exclusive with his “I did not have a gun” defense. See Villafuerte v. Stewart, 111 F.3d 616, 630 (9th Cir. 1997) (counsel’s election not to investigate voluntary intoxication defense that would have been inconsistent with the defense theory at trial was not ineffective assistance). Arguing intoxication would have severely undermined Defendant’s credibility because he testified in great detail to instructing the driver to drop him off four doors down from Dallas’ house, to his encounter with Stephanie, to his actions in defending himself against Dallas and the unidentified man in the blue shirt, both of whom had guns, and to their actions in assaulting him and putting him in fear for his life before he wrestled the gun away from Dallas and shot him in self-defense. (RT737-56,768;ERIV.)
Under these circumstances, the failure to give a voluntary intoxication instruction was not error, much less plain error. United States v. Montgomery, 150
F.3d 983, 996 (9th Cir. 1998) (“Where a defendant does not offer a particular instruction, and does not rely on the theory of defense embodied in that instruction
37 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 45 of 74
at trial, the district court’s failure to offer an instruction on that theory sua sponte is not plain error.”); United States v. Span, 970 F.2d 573, 578 (9th Cir. 1992) (“district court did not commit plain error by failing to offer sua sponte an instruction on an excessive force theory of defense not raised during trial.”).
C. Defendant’s Convictions Should Not Be Reversed on the Basis of Vouching or Instructional Error.
“Vouching consists of placing the prestige of the government behind a witness through personal assurances of the witness’s veracity, or suggesting that information not presented to the jury supports the witness’s testimony.” United States v.
Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993). This Court first examines the claims of vouching, then determines whether the vouching affected the defendant’s substantial rights. United States v. Brooks, 508 F.3d 1205, 1209 (9th Cir. 2007).
Factors the Court considers include: “the form of vouching; how much the vouching implies that the prosecutor has extra-record knowledge of or the capacity to monitor the witness’s truthfulness; any inference that the court is monitoring the witness’s veracity; the degree of personal opinion asserted; the timing of the vouching; the extent to which the witness’s credibility was attacked; the specificity and timing of a curative instruction; and the importance of the witness’s testimony and the vouching to the case overall.” Necoechea, 986 F.2d at 1278.
38 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 46 of 74
1. Alleged Vouching to Which Defendant Did Not Object.
Defendant claims the prosecution substantially interfered with Matthew’s and
Jeremy’s testimony by improperly intimidating and coercing them into testifying against their will. The facts and the law do not support his assertion. Matthew and
Jeremy both voluntarily chose to testify after consulting with counsel in the hope of getting a post-trial sentence reduction from the judge. (RT503-04;ERIII(Jeremy);
RT411-12;ERIII(Matthew)).
Warning Matthew of the consequences of perjury on direct examination
(RT228-30;ERII) was not improper. The circumstances warranted it, and the prosecutor’s language was not coercive or intimidating; it neither actively discouraged him from testifying nor badgered him into silence. Cf. United States v.
Vavages, 151 F.3d 1185, 1190-92 (9th Cir. 1998) (prosecutor substantially interfered with decision of defendant’s wife to testify in support of an alibi defense when he articulated his belief that her testimony would be false, despite the absence of a substantial basis for such belief in the record, and he suggested she would be prosecuted for perjury and threatened to withdraw her plea agreement in an unrelated matter if she testified); United States v. Giraldo, 822 F.2d 205, 208-12 (2d Cir. 1987)
(although court improperly used mid-trial sentence of 40 years and recommendations of distant prison and ineligibility for parole to coerce codefendant to testify, then
39 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 47 of 74
reduced the sentence to four years after he testified, defendant was not entitled to relief because he failed to establish prejudice; the codefendant had already inculpated defendant, never recanted, testified consistently with it, and the jury was informed about facts surrounding the codefendant’s decision to testify); United States v. Riskin,
788 F.2d 1361, 1370-71 (8th Cir. 1986) (prosecutor’s remarks warning government witness about serious consequences of perjury did not unconstitutionally prejudice defendant or deprive him of right to present witnesses when prosecutor at no time threatened to prosecute witness for crimes other than perjury or to retaliate against him).
In Matthew’s letter to Defendant he wrote:
. . .I had a meeting with my attorney and the prescuter about testifying I told them I wasn’t and the proscuter said that she is going 2 do every thing in her power 2 see that I get the 10 year max for purgery on my plea. But I said I will what their trying 2 find out is if you had a gun when we come back from the house when we went 2 get some weed & blunts if I saw a lump under your shirt that might be a gun? And that if you gave me the shot gun shells for the gun the first time I said ya But I told her I lied only so I could get out or get less time. And you told me 2 fier once I hear gun shots but that what they say but tell your lawer its the other way that after you got in a fight with him because in Jeremy’s statement rember he said that he saw you fighting but you were winning. Say that he started shoting when you came runing around the house. And I, me Matthew shot 2 scare them off but he (Peters) keep shoting. And I told them I was scared and dropd the gun and run because their were still shoting. That’s what I told them. And that I was just lieing about all the other stuff but they don’t want your lawyer 2 find out because they would throw me off the stan but I told my lawyer and the
40 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 48 of 74
proscuter I was lieing about everything 2 get less time or 2 get set free but they told me not 2 say that I was lieing 2 get less time in the court because the Judge would think I’m bullshiting. But let your lawyer know all this that I said and their just getting shit twisted because they told me that the proscuter wanted 2 put you away. . .
(Ex.101;ERI;RT530-533;SER165-168.)
Defendant claims that Matthew’s contradictory testimony after he was impeached with the letter put the prosecutor on notice that Matthew had agreed to testify falsely. Citing Commonwealth of the Northern Mariana Islands v. Bowie, 243
F.3d 1109 (9th Cir. 2001), Defendant argues that the prosecutor’s knowing use of
Matthew’s false testimony requires reversal. (Op.Br.at 56.) In Bowie, an unsigned letter that appeared to be written by an informant was found in a jail cell before trial.
The letter clearly suggested that the informant was responsible for a murder and kidnaping for which Bowie was charged, as well as the existence of a conspiracy by multiple perpetrators to commit perjury and place blame on Bowie. Id. at 1112-14,
1117-18. The prosecution held the letter and did nothing to investigate; it did not determine the authorship of the letter or question any of the cooperating accomplice witnesses about a possible frame-up of Bowie or a coverup in favor of another individual. Id. This Court held that the prosecution had an obligation “to act when put on notice of the real possibility of false testimony,” and the prosecution’s failure
41 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 49 of 74
to conduct a prompt pretrial investigation required reversal of Bowie’s convictions.
Id.
The circumstances here are significantly different. Defense possessed
Matthew’s letter. It was not disclosed to the court, the prosecutor, or Matthew’s counsel until some time after Matthew’s cross-examination had concluded.
(RT429;ERIII.) This is not a case of a prosecutor failing to investigate, finding it
“tactically advantageous to turn a blind eye to the manifest potential for malevolent disinformation.” Id., at 1114. Instead, the prosecution team confronted both
Matthew and his counsel with the contents of the letter once it was disclosed. After its investigation, the prosecutor determined in good faith that Matthew was minimizing his brother’s participation, not lying. The trial judge recognized as much in making a record of her observations of Matthew’s cross-examination in relation to the mistrial motion.
THE COURT: . . . what he said and also the manner in which he answered those questions in an evasive sort of way indicated he might not be telling the truth. But that is for the jury to decide, not for anyone else in the courtroom but the jury. He now has an attorney. He has apparently spent a lot of time with the attorney and the U.S. Attorney’s Office, and the U.S. Attorney’s Office has decided in good faith that they believe he’s telling the truth and that is good enough for me.
(RT732;ERIV.) The trial judge’s finding is not clearly erroneous. United States v.
Shaw, 829 F.2d 714, 718 (9th Cir. 1987) (prosecutor did not knowingly present false
42 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 50 of 74
testimony by failing to clarify adequately misstatement of government witness on cross-examination; misstatement was adequately described to jury during second round of cross-examination and redirect examination).
In his letter, Matthew evidenced a clear intent to play both sides of the fence; he wanted a sentence reduction for his cooperation, but intended to hurt Defendant as little as possible in the process. He conveys to Defendant the substance of what he and Jeremy had told the prosecution, and instructs Defendant to share the information with his attorney so Defendant would be ready to meet the evidence against him. (Ex.101;ERI.) Unlike in Simtob, the district court here reviewed the letter once it was disclosed, admitted it into evidence, and allowed both parties to question Matthew about it. United States v. Simtob, 901 F.2d 799, 802-05 (9th Cir.
1990)(trial court abused its discretion when, after close of evidence, it failed to review or admit recording that allegedly established perjury by government’s main witness on predisposition; error was not harmless because information in recording was sufficiently credible that it might well have affected the verdict). Under the circumstances here, where no evidence shows a bad-faith failure to investigate potentially exonerating evidence of a conspiracy to present perjured testimony, and where the testimony of other witnesses and the physical evidence corroborate
43 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 51 of 74
Matthew’s testimony, “[a]t most the prosecutor presented contradictory testimony, and that is not improper.” Necoechea, 986 F.2d at 1281.
Defendant claims that advising the jury that Matthew and Jeremy pled guilty and agreed to testify against Defendant in opening statement and direct examination, before their credibility was attacked, constitutes vouching. However, a prosecutor may properly place the plea of a cooperating codefendant before the jury in its case- in-chief to blunt defense efforts at impeachment and to dispel the suggestion that the government or witness has something to hide. United States v. Halbert, 640 F.2d
1000, 1005 (9th Cir. 1981). To the extent this was vouching it was “mild;” because the defense extensively cross-examined both witnesses regarding their cooperation agreements with the government. (RT339-41,343-45;ERII;RT429-41,536-38;ERIII.)
See Brooks, 508 F.3d at 1209-10 (statements were “mild” form of vouching where
“witnesses testified they were speaking the truth before the jury and were living up to the terms of their plea agreements”).
Asking Matthew on direct examination if it was part of his agreement that he testify truthfully and cooperate was not vouching because it did not “imply a guaranty of [his] truthfulness, refer to extra-record facts, or reflect personal opinion.”
Necoechea, 986 F.2d at 1278-79. “Nor was it inopportune,” since Defendant challenged the credibility of all government witnesses in opening statement. (RT89-
44 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 52 of 74
91;SER26a-28.) See, Id. at 1279 (reference to truthfulness provision may be made on direct examination if witness’s credibility is attacked in defense opening).
Finally, Defendant claims the court abused its discretion by failing to conduct a hearing “after observing a sleeping juror during important witness testimony.”
See United States v. Hendrix, 549 F.2d 1225, 1229 (9th Cir. 1977) (trial court has discretion to determine whether or when to hold a hearing on allegations of juror misconduct). The record reflects that at 3:36 p.m. the prosecutor requested a side bar and alerted the court to a purportedly sleeping juror. (RT620;ERIII.) Without objection from Defendant or a request for any other remedy, the court announced to the jury that after another ten minutes of testimony they would recess for the weekend. (RT620-21;ERIII.)
No plain error resulted from the court’s failure to investigate further. Both before and after the court’s announcement, Dallas was describing gunfire from the two gunmen, evidence that supported the government’s theory of prosecution and that other witnesses and physical evidence corroborated. (RT605-30;ERIII.) Dallas’ direct examination was favorable to the government, not Defendant. Defendant fails to articulate any prejudice. See United States v. Barrett, 703 F.2d 1076, 1083 n.12
(9th Cir. 1983) (new trial is not required even if juror was asleep during portions of
45 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 53 of 74
trial if juror did not miss essential portion of trial and was able to fairly consider case).
2. Vouching to which Defendant Objected.
Denial of a motion for mistrial is reviewed for abuse of discretion. United
States v. English, 92 F.3d 909, 912 (9th Cir. 1996). Preserved allegations of prosecutorial misconduct are reviewed for harmless error; the Court determines whether the misconduct more probably than not materially affected the verdict.
United States v. McKoy, 771 F.2d 1207, 1212 (9th Cir. 1985).
Defendant contends, citing Rudberg, that proof of conspiracy and aiding and abetting depended entirely on the vouched testimony of Matthew and Jeremy, and the accomplice instruction did not cure the error because that instruction “misstated key evidence.” Rudberg, 122 F.3d at 1201-02, 05-06 (reversal required when prosecutor elicited, without objection, testimony that the FBI’s investigation had verified the cooperating witness’s veracity and that the court had already found several such witnesses’ testimony truthful by granting Rule 35 motions).
Defendant’s argument fails for a number of reasons. First, as argued above,
Jeremy’s testimony was at most “mildly” vouched for when the jury was advised through opening statement and direct examination that he had pled guilty and was testifying pursuant to an agreement with the government. Nothing in his direct
46 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 54 of 74
examination connotes extra-court information or insight into his credibility, nor does anything imply independent verification of his testimony. Id. at 1201-02. Jeremy’s testimony should therefore not be disregarded on this basis.
Second, Matthew was not a “key” witness. Substantial evidence, independent of his testimony, establishes that Defendant used a handgun as a principal to assault
Dallas, Jane, and Stephanie by firing the gun at them (and in Stephanie’s case by hitting her on the head with it). See, supra, pages 5-18. The prosecutor’s closing argument is consistent with that theory. (RT828-50;ERV.)
Third, even if the Court were to disregard Jeremy’s and Matthew’s testimony, substantial evidence of intent and a conspiracy remains. Dallas testified that there were two gunmen, the women heard two distinct kinds of gunfire, two distinct types of ammunition injured Dallas, two guns left physical evidence at the scene, the ammunition found at the scene was fired or ejected from only two guns, and ammunition matching that found at the scene was found in Defendant’s bedroom. Id., pages 5-18. From this independent evidence and Defendant’s admission that he sought out and brought his brothers to the scene (RT770;ERIV), the jury could reasonably infer that Defendant acted in concert with one or both of his brothers to commit the assaults. “[C]oordinated activity among the defendants raises a
47 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 55 of 74
reasonable inference of a joint venture...” United States v. Hernandez, 876 F.2d 774,
778 (9th Cir. 1989).
Fourth, although the prosecutor’s “perjury” objection to Matthew’s testimony was improper, that improper objection does not warrant reversal because the error was harmless. Contrary to Defendant’s argument, Matthew’s testimony did not support reasonable doubt or his theory of self-defense. Defendant’s counsel recognized as much. He argued in closing that the only way the jury could convict
Defendant of conspiracy was if it believed Matthew and Jeremy, and it should not believe them because they lied repeatedly and had “zero credibility.” (RT853-
55;ERV.)
Similarly, in denying the mistrial motion the trial court wrote:
Even if the jury heard the prosecutor’s statement and it caused the jury to have a lower opinion of the credibility of the witness, this likely aided the Defendant’s case more than it prejudiced it. Matthew Zepeda was called to testify as a material witness for the government. When the Government declared that Matthew was perjuring himself, it undermined the credibility of its own witness. Matthew Zepeda’s testimony, if believed by the jury, substantially incriminated the Defendant. As an example, the witness stated that it was Defendant’s idea to drive to the home of the alleged victims, that he saw a lump by Defendant’s waist that could have been a gun, that Defendant told him how to load it, and that Defendant instructed him to shoot the shotgun if something happened. . . .
(CR130;SER14-16.)
48 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 56 of 74
Finally, the court’s instructions were more than adequate to dispel any potential prejudice from the perjury objection. “Prompt and effective action by the trial court may neutralize the damage by admonition to counsel or by appropriate curative instructions to the jury.” Simtob, 901 F.2d at 806. Before the jurors heard any testimony, the court instructed them that objections were not evidence, that if instructed to disregard something they should ignore it, and that they must not consider any statements or arguments of the lawyers as evidence. (RT73;SER23.)
Immediately after the perjury objection, the court instructed jurors to disregard anything they heard the prosecutor say about Matthew’s testimony. (RT343;ERII.)
Defense counsel believed these instructions were adequate. He expressly requested that no additional curative instruction be given if the court denied his mistrial motion (RT730; ERIV), and he refused the court’s offer to give a limiting instruction at the end of the case because “It is already covered[.]” (RT797; SER214.)
“[T]rial counsel bore primary responsibility for ensuring that the error was cured in the manner most advantageous to his client.” Greer v. Miller, 483 U.S. 756, 767 n.8
(1987); Necoechea, 986 F.2d at 1281 (no plain error where instruction commensurate with the degree of vouching was given).
Additionally, at the close of the evidence the court instructed, pursuant to the joint instructions and without objection, that Matthew and Jeremy received favored
49 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 57 of 74
treatment in connection with this case, that they admitted being accomplices, and that they pled guilty to a crime arising out of the case; therefore, the jury should evaluate the extent to which these factors may have influenced their testimony and examine their testimony with greater caution than other witnesses. (RT817;ERV.) This instruction was intended to caution the jury with regard to the adequacy of the government’s case, but Defendant argues that to define accomplice as “one who voluntarily and intentionally joins with another person in committing an offense”
(RT817;ERV) relieved the government of its burden of proving that Defendant had the requisite intent or conspiratorial agreement because neither Matthew or Jeremy admitted being an accomplice. The jury, however, could clearly find from Matthew’s and Jeremy’s testimony and actions that they voluntarily and intentionally joined
Defendant in committing the crimes. When read as a whole, the instructions clearly and correctly require the jury to find that Defendant had the requisite mental state for each charged offense. (RT818-28;ERV.) See United States v. Houston, 648 F.3d
806, 818 (9th Circuit 2011) (a single instruction is not to be read in isolation; this court considers whether instructions as a whole are misleading or inadequate to guide the jury’s deliberations).
50 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 58 of 74
D. The Prosecutor’s Closing Argument Did Not Misrepresent Crucial Evidence or Encouraged a Retributive Blanket Verdict.
In closing argument, the prosecutor, purporting to quote Jeremy, stated four times that he heard Defendant say they were going “to do some dirt” that night.
(RT837-39,856;ERV.) Defendant argues that this misstatement of the evidence was an improper attempt to tell the jury inadmissible evidence and so egregious and pervasive that it rises to the level of plain error despite the lack of a contemporaneous objection. When reviewing allegations of prosecutorial misconduct for plain error,
“the issue is whether, considered in the context of the entire trial, that conduct appears likely to have affected the jury’s discharge of its duty to judge the evidence fairly.” United States v. Sullivan, 522 F.3d 967, 982 (9th Cir. 2008) (internal quotation marks omitted).
No one testified that Defendant made a statement about “doing dirt.”14 The erroneous assertion in argument did not affect Defendant’s substantial rights, however, because the trial court’s instructions adequately protected against a tainted verdict. In its preliminary instructions, the court told the jury that they were the sole judges of the facts, that they were to decide the case based on the evidence, that they were not to consider any statements or arguments by the lawyers as evidence, and that
14The statement appears in an FBI report of Jeremy’s November 16, 2008, interview, provided to Defendant in discovery.
51 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 59 of 74
their memory of the evidence is what should control their deliberations. (RT70-
75;SER20-25.) In final instructions, the court told jurors that what the lawyers said their closing arguments was “intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from what the lawyers state them to be, your memory controls.” (RT814;ERV.)
Without Defendant’s objection alerting the trial court that something more was needed, these instructions adequately dealt with the issue of arguing facts not in evidence and neutralized any harm from the prosecutor’s erroneous argument.
See United States v. Lopez-Alvarez, 970 F.2d 583, 597-98 (9th Cir. 1992) (dismissing prosecutorial misconduct charge because jury instructions at start and end of trial that lawyers’ statements and arguments are not evidence and should not be considered as evidence were sufficient to neutralize prejudice).
Defendant argues that the unsupported “do some dirt” argument “bolstered the government’s otherwise unconvincing proof” of a conspiratorial agreement or intent to commit the substantive crimes. Defendant is incorrect. Strong evidence suggested a plan/agreement and intent. Defendant admitted seeking out and bringing his brothers to the scene because he wanted them with him. (RT770;ERIV.) Jeremy testified that Defendant asked about Dallas (“Goofy”) before picking him up; that he knew that the handgun and the shotgun were in the car; that he saw Defendant handle
52 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 60 of 74
both guns when they got out of the car; that he changed his mind about being involved in what they were going to do once he realized he knew “the dude;” and that
“they” were supposed to give him the shotgun but he refused to take it, so Defendant gave it to Matthew. See, supra, pages 16-18.
Matthew testified that after Defendant went to his bedroom and returned to the car something at Defendant’s waist, a lump that could have been a gun, caught his eye; that they got out of the car near Dallas’ house and Defendant gave him shotgun shells, showed him how to load the shotgun, and told him to shoot if something happens; and that he fired the shotgun in a southerly direction, unafraid of hitting
Defendant because he knew Defendant was not on that side of the house. See, supra, pages 18-21.
Dallas testified that there were two gunmen, the women heard two distinct kinds of gunfire, two distinct types of ammunition injured Dallas, two guns left physical evidence at the scene, the ammunition found at the scene was fired or ejected from only two guns, and ammunition matching that found at the scene was found in
Defendant’s bedroom. See, supra, pages 5-16.
“The [conspiratorial] agreement need not be explicit; it is sufficient if the conspirators knew or had reason to know of the scope of the conspiracy and that their own benefits depended on the success of the venture.” Sullivan, 522 F.3d at 976,
53 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 61 of 74
(quoting United States v. Montgomery, 384 F.3d 1050, 1062 (9th Cir. 2004)). From this evidence, the jury could infer that Defendant had an agreement with one or both of his brothers to commit assault with one or both of the guns, the prosecutor argued.
(RT830-31;ERV.)
Defendant further argues that prejudice from the “doing dirt” argument was compounded by other unsupported references in the prosecutor’s argument, including the statement that Jennifer saw Defendant motioning to someone. This comment, however, has support in the record. Jennifer testified that Defendant kept “pointing to his left” as he argued with Stephanie. (RT142-43;SER57-58.) Even if it did not, however, the strong evidence of a conspiratorial agreement renders any error harmless. See United States v. Weatherspoon, 410 F.3d 1142, 1151 (9th Cir. 2005)
(“When the case is particularly strong, the likelihood that prosecutorial misconduct will affect the verdict is lessened because the jury’s deliberations are less apt to be influenced.”).
Two remaining comments about which Defendant complains, that Defendant had a gun in his waistband and that Defendant told him the direction to shoot, are fair argument based on reasonable inferences from the record. Matthew testified that
(1) he did not actually see a gun, but saw a lump at Defendant’s waist after Defendant left his bedroom (RT215-17;ERII), and (2) he was firing blindly due to his impaired
54 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 62 of 74
vision, but he was not afraid of hitting Defendant because he knew Defendant was not on that side of the house. (RT204-05,331;ERII.) It is within the bounds of fair advocacy for a prosecutor to ask the jury to draw inferences from the evidence that he or she believes in good faith to be true.
The fact that the statements Defendant challenges had a basis in the evidence distinguishes this case from the egregious arguments prosecutors made in the cases he cites. See United States v. Blueford, 312 F.3d 962, 968 (9th Cir. 2002) (asking jury to infer fabrication of defendant’s alibi, when in fact government had no support for inference and had evidence contradicting the assertion, required a new trial);
United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993) (falsely telling jury that witness did not testify because witness had invoked Fifth Amendment rights, when in fact witness had cooperation agreement pursuant to which witness agreed to testify truthfully, warranted reversal); United States v. Vaglica, 720 F.2d 338 (5th Cir. 1983)
(reversal warranted because prosecutor’s inaccurate and improper statement in closing struck at the heart of the defense by suggesting that evidence not presented to the jury refuted defendant’s testimony, but the evidence was inadmissible at trial under the Rules of Evidence).
Finally, Defendant argues the prosecutor’s argument encouraged a retributive
“blanket” verdict. It did not. The prosecutor laid out the instructions with regard to
55 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 63 of 74
each count and argued the facts that satisfied the government’s burden of proof as to each element of each count. (RT828-50;ERV.) The jury had a copy of the instructions during its deliberations (RT812;ERV), and it was instructed that a separate crime was charged in each count, that it “must decide each count separately” and that its “verdict on one count should not control [its] verdict on any other count”
(RT816;ERV). The jury is presumed to follow its instructions. United States v.
Stinson, 647 F.3d 1196, 1218 (9th Cir. 2011).
E. Defendant’s Counsel Was Not Ineffective.
Relying on the complaints he makes in Argument A-D, Defendant argues that he was denied effective assistance of counsel. “An ineffective assistance of counsel claim is more properly raised by collateral attack on a conviction.” Necoechea, 986
F.2d at 1281. Such a claim “can be reviewed (1) if the record on appeal is sufficiently developed to permit review and determination of the issue, or (2) when the legal representation is so inadequate that it obviously denies a defendant his Sixth
Amendment right.” Id. To the extent this Court considers Defendant’s argument it should rejected it because, as argued herein, the errors he alleges either were not errors at all or did not prejudice Defendant.
56 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 64 of 74
F. Sufficient Evidence Supports the Jury’s Verdicts.
This Court must review the evidence in the light most favorable to the government and determine whether a rational trier of fact could have found the elements of the offenses beyond a reasonable doubt. United States v. Carranza, 289
F.3d 634, 641-42 (9th Cir. 2007). It is “the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson v. Virginia, 443 U.S. 307, 319
(1979). “The hurdle to overturn a jury’s conviction based on a sufficiency of the evidence challenge is high.” United States v. Rocha, 598 F.3d 1144, 1153 (9th Cir.
2010).
Defendant claims there was insufficient evidence of his Indian status, but the certified Tribal Enrollment form to which he stipulated establishes he is 1/4 Pima, 1/4
Tohono O’Odham, and an enrolled member of the Gila River Indian Community.
(Ex.1;SER232.) This, together with Matthew’s testimony that Defendant is an Indian, sufficiently established his Indian status. United States v. Bruce, 394 F.3d 1215,
1223-24 (9th Cir. 2005).
He claims there was insufficient evidence to prove assault with a dangerous weapon against Stephanie, Jane, or Dallas because no evidence showed that he had
57 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 65 of 74
a gun or of his specific intent to do bodily harm.15 His argument ignores the record.
Jennifer (RT146-47,159-61;SER59-60,63-65), Jane (RT373-74;ERII) and Kassee
(RT249-50,254;SER96-97,99), each testified that Defendant had a gun in his hands as he faced the house just before the shooting started. Jeremy testified that Defendant gave Matthew a shotgun before they walked to Dallas’ house and that Defendant had a handgun when he went to the front door. (RT521-24,534-36;ERIII.) Matthew testified to seeing a “lump” at Defendant’s waist that could have been a gun, and said
Defendant gave him a shotgun and bullets and showed him how to load it, and told him to shoot if something happened. (RT215-23;ERII.) Additionally, Jane testified that Defendant pointed a gun directly at her before she heard gunfire as she ran around the corner of the house (RT373-74,387;ERII) and she saw Defendant fire the gun and felt bullets hit Dallas as he protected her from the gunfire (RT381,393-
94;ERII). This evidence establishes that Defendant assaulted each of the three victims with a dangerous weapon with the intent to do bodily harm.
Defendant argues that he hit Stephanie with his hand, not a gun. Stephanie, however, testified that Defendant struck her so forcefully on the back of the head with
“something hard” that she saw “flashes” of light and felt “numb,” and that she heard
15A violation of 18 U.S.C. § 113(a)(3) requires proof of (1) an assault, (2) the use of a dangerous weapon, and (3) the intent to do bodily harm. Rocha, 598 F.3d at 1157.
58 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 66 of 74
gunfire as she ran from Defendant and in the front door. (RT298-300;ERII.) Jane testified that at first she thought Defendant was waving his hand when Stephanie fell to the ground, but when she turned back she saw that he had pulled a handgun and had it pointed in her direction. (RT373,387;ERII.) Their testimony is corroborated by shell casings found on the side of the garage, bullet fragments near the car parked in the driveway, bullet holes in the north and southwest garage windows, a bullet fragment, nine (9) live rounds of 9-millimeter ammunition and several 9-millimeter shell casings in the area of the front entry to the house, and damage to the exterior walls of bedrooms two and three in the front of the house, all indicating that shots were fired from the street where Defendant had been standing toward the house.
(Ex.15;SER236;RT460-63,469-70,476-77;SER149-52,158-59,162-63.)
The jury instructions expressly required a finding that Defendant “used a dangerous weapon, that is a gun” in the assault on Stephanie as charged in Count 6.
(RT825-26;ERV.) The court directed the jury back to those instructions when they questioned whether Defendant “had to use the gun when he hit Stephanie” (RT882-
84;ERV), and the verdict form reflects that the jury found Defendant used, carried, possessed, brandished and discharged a firearm during the assault on Stephanie with a deadly weapon. (CR113;ERI.) The record supports these findings.
59 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 67 of 74
G. There Was No Cumulative Error.
“Although individual errors looked at separately may not rise to the level of reversible error, their cumulative effect may nevertheless be so prejudicial as to require reversal.” Necoechea, 986 F.2d at 1282. This Court reviews “all errors preserved for appeal and all plain errors.” Id. Where all the errors raised are subject to plain error review, the cumulative impact of the errors is also reviewed for plain error. Id.
Defendant asserts that government witnesses admitted lying during the investigation, had ulterior motives, and were drinking on the night of the assaults, and that his Arguments C and E demonstrate that evidence of intent was weak, vouched, and misstated in closing argument. He argues that the cumulative impact of these circumstances requires reversal. It does not. The jury weighed the credibility of the government witnesses against that of Defendant and rejected Defendant’s version of events. “[T]his court resolves all matters of credibility in a manner supporting the verdicts.” United States v. Mejia, 559 F.3d 1113, 1116 (9th Cir. 2009). Moreover, in light of the strength of the government’s case, the efficacy of the curative and final instructions, and the fact that the government was more prejudiced by the perjury objection than Defendant, reversal for cumulative error is not warranted. United
States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996).
60 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 68 of 74
H. 18 U.S.C. § 924(c) Mandates Enhanced, Consecutive Sentences for the Four Firearms Counts, Regardless of the Sentencing Guidelines.
Defendant was convicted of four counts of discharging a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). (CR165;SER1-4.) He was sentenced to 120 months for the first conviction (Count 3) and enhanced, consecutive terms of
300 months’ imprisonment for each of the other three firearms convictions (Counts
5, 7, and 9). (CR165;SER1-4.) He argues the resulting 1083-month sentence is procedurally and substantively unreasonable because (1) the district court “omitted any consideration of 18 U.S.C. § 3553(a)’s sentencing factors and imposed Guideline recommended mandatory, consecutive sentences, believing she had no other choice”;
and (2) the Supreme Court in Pepper v. United States, 131 S. Ct. 1229 (2001)
“invalidated statutory provisions requiring district courts to effectively treat
Guidelines provisions as mandatory” so that the court could vary from the Guidelines based on policy disagreements. (Op.Br. at 76-77.) Defendant’s argument fails because 18 U.S.C. § 924(c), not the Sentencing Guidelines, mandated the sentence imposed. See United States v. Kidder, 869 F.2d 1328, 1334-35 (9th Cir. 1989)
(rejecting argument that a statutory mandatory minimum sentence is “unconstitutional because it unduly restricts the sentencing judge’s ability to impose an individualized sentence”).
61 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 69 of 74
Here, each violation of § 924(c) was supported by a separate predicate offense, and the jury expressly found by special verdict that Defendant discharged the firearm in committing each offense. (CR113; ER33-34;CR165;SER1-4.) The court properly sentenced Defendant to ten years for the first discharge of a firearm conviction, 18
U.S.C. § 924(c)(1)(A)(iii), and to 25-year terms on each of the other three convictions. United States v. Beltran-Moreno, 556 F.3d 913, 915 (9th Cir. 2009)
(“when the government charges more than one § 924(c) offense in a single indictment, each additional count is to be treated as a ‘second or subsequent conviction’ for purposes of 18 U.S.C. § 924(c)(1)(C)(i) and therefore carries a mandatory minimum sentence of twenty-five years.”).
Defendant attempts to incorporate other arguments from his sentencing memorandum filed with the district court in footnote 19 of his brief. This he cannot do. See Circuit Rule 28-1(b) (“Parties must not . . . incorporate by reference briefs submitted to the district court or agency or this Court in a prior appeal, or refer this
Court to such briefs for arguments on the merits of the appeal.”).
62 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 70 of 74
VIII. CONCLUSION
For the foregoing reasons, the judgment of conviction and sentence should be affirmed.
ANN BIRMINGHAM SCHEEL Acting United States Attorney District of Arizona
RANDALL M. HOWE Deputy Appellate Chief
s/ Joan G. Ruffennach JOAN G. RUFFENNACH Assistant U.S. Attorney
63 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 71 of 74
IX. STATEMENT OF RELATED CASES
To the knowledge of counsel, there are no related cases pending.
64 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 72 of 74
X. CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP. P. 32(a)(7)(C) AND CIRCUIT RULE 32-1 FOR CASE NO. 10-10131
I certify that: (check appropriate option(s))
/ 1. Pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the attached opening/answering/reply/cross-appeal brief is
9 Proportionately spaced, has a typeface of 14 points or more and contains 13,976 words (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 14,000 words; reply briefs must not exceed 7,000 words), or is
9 Monospaced, has 10.5 or fewer characters per inch and contains words or lines of text (opening, answering, and the second and third briefs filed in cross-appeals must not exceed 14,000 words or 1,300 lines of text; reply briefs must not exceed 7,000 words or 650 lines of text).
2. The attached brief is not subject to the type-volume limitations of Fed. R. App. P. 32(a)(7)(B) because
9 This brief complies with Fed. R. App. P. 32(a)(1)-(7) and is a principal brief of no more than 30 pages or a reply brief of no more than 15 pages;
9 This brief complies with a page or size-volume limitation established by separate court order dated and is
9 Proportionately spaced, has a typeface of 14 points or more and contains words, or is
9 Monospaced, has 10.5 or fewer characters per inch and contains pages or words or lines of text.
December 1, 2011 s/ Joan G. Ruffennach Date Signature of Attorney
65 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 73 of 74
XI. CERTIFICATE OF SERVICE
I hereby certify that on December 1, 2011, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
s/ Joan G. Ruffennach JOAN G. RUFFENNACH Assistant U.S. Attorney
66 Case: 10-10131 12/01/2011 ID: 7984899 DktEntry: 38-1 Page: 74 of 74
XII. ADDENDUM TO BRIEF OF APPELLEE
See following pages for Standing Order of Judge Silver, Roslyn O., regarding Jury Instructions.
67