585 F.3d 1155 (9th Cir. 2009), 08-10391, United States v. Harrison

Docket Nº08-10391.
Citation585 F.3d 1155
Opinion JudgeKOZINSKI, Chief Judge:
Party NameUNITED STATES of America, Plaintiff-Appellee, v. Rex T. HARRISON, Defendant-Appellant.
AttorneyEdward H. Kubo, Jr., United States Attorney; Lawrence L. Tong, Assistant United States Attorney, Honolulu, HI, for plaintiff-appellee the United States of America. Peter C. Wolff, Jr., Office of the Federal Public Defender, Honolulu, HI, for defendant-appellant Rex T. Harrison.
Judge PanelBefore: ALEX KOZINSKI, Chief Judge, JAY S. BYBEE and CONSUELO M. CALLAHAN, Circuit Judges. Opinion by Chief Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge BYBEE. BYBEE, Circuit Judge, concurring in part and dissenting in part:
Case DateAugust 19, 2009
CourtUnited States Courts of Appeals, United States Court of Appeals (9th Circuit)

Page 1155

585 F.3d 1155 (9th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,

v.

Rex T. HARRISON, Defendant-Appellant.

No. 08-10391.

United States Court of Appeals, Ninth Circuit.

August 19, 2009

Argued and Submitted May 13, 2009.

Amended Oct. 9, 2009.

Page 1156

[Copyrighted Material Omitted]

Page 1157

Edward H. Kubo, Jr., United States Attorney; Lawrence L. Tong, Assistant United States Attorney, Honolulu, HI, for plaintiff-appellee the United States of America.

Peter C. Wolff, Jr., Office of the Federal Public Defender, Honolulu, HI, for defendant-appellant Rex T. Harrison.

Appeal from the United States District Court for the District of Hawaii, David A. Ezra, District Judge, Presiding. D.C. No. 1:07-CR-00384-DAE-1.

Before: ALEX KOZINSKI, Chief Judge, JAY S. BYBEE and CONSUELO M. CALLAHAN, Circuit Judges.

Page 1158

Opinion by Chief Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge BYBEE.

ORDER

The opinion is amended to replace the first two sentences of the first full paragraph on page 11321 of the slip opinion with the following:

< Although the evidence under count 2 would have been sufficient to support the jury's verdict, had the jury been properly instructed, it was ambiguous. Officer Kirby testified that she would not have ordered her dog to attack " without [Harrison] saying that he was going to do something to me," but she also said she was " not a hundred percent confident that he said he was going to attack me." And while at times Officer Kirby said that Harrison " started running" in her direction, at other times she said he merely " looked like he was starting to come running." >

Appellant's Petition for Rehearing and for Rehearing En Banc is otherwise denied. See Fed. R.App. P. 35, 40. Judge Bybee would grant the petition.

No further petitions for rehearing or rehearing en banc may be filed.

OPINION

KOZINSKI, Chief Judge:

Everyone could have done more to protect defendant's rights at trial.

I

This is a tale of two Rex Harrisons. The first is the Harrison of Officers Jenkins and Kirby, two military police officers, who describe a man so drunk he could barely stand straight. A man who reeked of alcohol at a distance of six feet. Who snarled, " I don't think I should have to give you shit" when asked for his driver's license. A man who punched Officer Jenkins in the face and told Officer Kirby, " I'm not afraid of you and I'm not afraid of your fucking dog."

The second Rex Harrison is the man of his own telling. This Harrison had only " a couple of beers with dinner." When confronted by the officers, he humbly apologized for trespassing. This Harrison was calm and non-confrontational; he had the milk of human kindness by the quart in every vein. He certainly never hit anyone.

The jury must have believed the first story because it convicted Harrison of two counts of assaulting a federal officer. He appeals.

II

Except where otherwise noted, Harrison's trial lawyer failed to object to the errors his new lawyer raises on appeal. We therefore review for plain error, asking the usual questions, including whether there was prejudice. See, e.g., United States v. Recio, 371 F.3d 1093, 1100 (9th Cir.2004).

Count 1

A.

Harrison was convicted of assaulting Officer Jenkins and inflicting " bodily injury." 18 U.S.C. § 111(b). He complains that the prosecutors engaged in improper questioning during cross-examination and improper " vouching" during closing arguments.

It's black letter law that a prosecutor may not ask a defendant to comment on the truthfulness of another witness, United States v. Combs, 379 F.3d 564, 572 (9th Cir.2004), United States v. Geston, 299 F.3d, 1130, 1136 (9th Cir.2002), but the prosecutors here did just that. One prosecutor asked: " You're saying that [they're] going on the stand, swearing an oath to testify to the truth and then lying ... ?"

Page 1159

He even pitted his own credibility against Harrison's, asking, " So I'm in the conspiracy against you, is that right?" These were not isolated incidents: Improper questioning was an organizational theme for the prosecutor's entire cross-examination.

The vouching was similarly patent. The government was entitled to rebut Harrison's suggestion that Officers Jenkins and Kirby were motivated to lie, but it crossed the line when one prosecutor mentioned during closing that the officers had been promoted " with no adverse action whatsoever" after an internal military investigation. This clearly " suggest[ed] that information not presented to the jury," but available to the investigators, supported the officers' testimony. United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir.1993). And it would be hard to find a clearer case of " placing the prestige of the government behind a witness," id., than the prosecutor's statement that the " [g]overnment stands behind" Officers Jenkins and Kirby.

The government concedes the impropriety of many of these statements, but points out that the prosecutors were Special Assistant United States Attorneys on loan from the military. That's no excuse at all; when the United States Attorney endows lawyers with the powers of federal prosecutors, he has a responsibility to properly train and supervise them so as to avoid trampling defendants' rights. Indeed, everyone involved could have done better: The defense attorney should have objected as soon as he saw the prosecutors step out of line. And the respected and experienced district judge should not have tolerated this protracted exhibition of unprofessional conduct.

Nevertheless, Harrison must also show prejudice, and he hasn't. Harrison insists the government's case was " not overwhelming, but consisted of no more than a credibility contest...." But the government presented physical evidence of Harrison's guilt, including an injury to one of his knuckles. Harrison admitted making a spurious 911 stolen-car call when he knew full well his car was with the MPs. A state police officer who saw Harrison later that night testified to his extreme intoxication. And both the state police officer and a third MP testified that Harrison used profanity and struggled while being arrested. After four witnesses undermined Harrison's credibility, we cannot say the prosecutors' misconduct " affected the outcome of the district court proceedings." United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Any prejudice from the vouching was also ameliorated by the judge's belated curative instruction. See Combs, 379 F.3d at 575.

Harrison relies on Geston and Combs, but they are not on point. Combs reduced to a pure credibility contest between a defendant and two witnesses. 379 F.3d at 573. In Geston, because a prior trial resulted in a hung jury, we inferred that the case was a close one and thought the prosecutor's misconduct might well have tipped the balance. 299 F.3d at 1136.

B.

Harrison claims the jury should not have been instructed that it could infer consciousness of guilt from his flight. Such an instruction is proper only if the evidence supports " a chain of unbroken inferences" from (1) defendant's behavior to flight; (2) flight to consciousness of guilt; (3) consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) consciousness of guilt concerning the crime charged to actual guilt of the crime charged. United States v. Dixon, 201 F.3d 1223, 1232 (9th Cir.2000). Courts consider " whether the defendant knew the police suspected him of a

Page 1160

particular crime" and " whether the defendant fled immediately after the crime." Id. Harrison objected at trial, so we review for abuse of discretion. United States v. Perkins, 937 F.2d 1397, 1401 (9th Cir.1991).

With respect to count 1, all the necessary inferences were supported. Having struck an officer in the face, Harrison would have been aware that police suspected him of a crime. And Harrison surely did flee the scene. Harrison claims the chain of inferences was broken when he reported his car as stolen. But the jury could have inferred that he made a false report in an effort to set up an imaginary car thief as the fall-guy for his crimes. Nor can we say the instruction was invalid because the jury might have mistakenly thought it applied to Harrison's first attempt to run away, prior to striking Officer Jenkins. The instruction permitted the jury to draw a reasonable inference; it did not require an unreasonable one. No reasonable jury would have inferred that Harrison was conscious of guilt because he fled prior to committing the crime.

C.

Harrison suggests that the multiple errors at trial deprived him of his due process and fair trial rights and urges us to reverse under a " cumulative effects" theory. But the errors did not render the trial " fundamentally unfair." Parle v. Runnels, 505 F.3d 922, 927 (9th Cir.2007). The prosecutor's improper questioning only highlighted a credibility judgment that Harrison was himself asking the jury to make. And the prosecutor's vouching, when paired with a curative instruction, did not make the defense " far less persuasive than it might [otherwise] have been." Id. (quoting Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)).

Count 2

Harrison was also convicted of forcibly assaulting, resisting, opposing, impeding, intimidating, or interfering with Officer Kirby. 18 U.S.C. § 111(a). Harrison challenges his conviction based on the same prosecutorial misconduct and an additional erroneous jury instruction.

A.

The misconduct once again was not prejudicial. To be sure, because there were no witnesses other than Harrison and Officer Kirby, this part of the case did reduce to a credibility contest akin to Geston or Combs. But once the jury believed that Harrison struck Officer Jenkins, it was not going to believe Harrison when he claimed he was a perfect gentleman towards Officer...

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31 practice notes
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    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 25 de agosto de 2015
    ...the instructional error regarding the second "listening and translating" theory was harmless. See United States v. Harrison, 585 F.3d 1155, 1161 (9th Cir. 2009) (erroneous jury instruction was not harmless when evidence in support of the proper ground was "ambiguous"); c......
  • 801 F.3d 971 (9th Cir. 2015), 08-50531, United States v. Christensen
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    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 25 de agosto de 2015
    ...the instructional error regarding the second " listening and translating" theory was harmless. See United States v. Harrison, 585 F.3d 1155, 1161 (9th Cir. 2009) (erroneous jury instruction was not harmless when evidence in support of the proper ground was " ambiguous" )......
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    ...from defendant's unexplained possession of recently stolen property constitutionally permissible); United States v. Harrison, 585 F.3d 1155, 1159-60 (9th Cir. 2009) (instruction that jury may infer consciousness of guilt from flight constitutionally permissible).&qu......
  • 828 F.3d 763 (9th Cir. 2016), 08-50531, United States v. Christensen
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 8 de julho de 2016
    ...error regarding the second " listening and translating" theory was harmless. See United States v. Harrison, 585 F.3d 1155, 1161 (9th Cir. 2009) (erroneous jury instruction was not harmless when evidence in support of the proper ground was " ambiguous&......
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30 cases
  • United States v. Christensen, 082515 FED9, 08-50531
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 25 de agosto de 2015
    ...the instructional error regarding the second "listening and translating" theory was harmless. See United States v. Harrison, 585 F.3d 1155, 1161 (9th Cir. 2009) (erroneous jury instruction was not harmless when evidence in support of the proper ground was "ambiguous"); c......
  • 801 F.3d 971 (9th Cir. 2015), 08-50531, United States v. Christensen
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 25 de agosto de 2015
    ...the instructional error regarding the second " listening and translating" theory was harmless. See United States v. Harrison, 585 F.3d 1155, 1161 (9th Cir. 2009) (erroneous jury instruction was not harmless when evidence in support of the proper ground was " ambiguous" )......
  • 828 F.3d 763 (9th Cir. 2016), 08-50531, United States v. Christensen
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 8 de julho de 2016
    ...error regarding the second " listening and translating" theory was harmless. See United States v. Harrison, 585 F.3d 1155, 1161 (9th Cir. 2009) (erroneous jury instruction was not harmless when evidence in support of the proper ground was " ambiguous&......
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    • Federal Cases United States Courts of Appeals United States Court of Appeals (9th Circuit)
    • 8 de julho de 2016
    ...error regarding the second "listening and translating" theory was harmless. See United States v. Harrison, 585 F.3d 1155, 1161 (9th Cir. 2009) (erroneous jury instruction was not harmless when evidence in support of the proper ground was "ambiguous&qu......
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