FILED
NOT FOR PUBLICATION DEC 21 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-10363
Plaintiff - Appellee, D.C. No. 2:05-CR-00554-LKK
v.
MEMORANDUM *
HARVEY L. SEWELL,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding
Argued and Submitted December 2, 2009
San Francisco, California
Before: B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges.
Harvey Sewell appeals his jury conviction of one count of conspiracy to
distribute and possess with intent to distribute at least 50 grams of crack cocaine in
violation of 21 U.S.C. §§ 841(a)(1) and 846, and five counts of distribution of at
least 5 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Because the parties are familiar with the facts and procedural history, we will not
recount them here.
Sewell contends that the prosecutor’s cross-examination of his investigator
constituted reversible prosecutorial misconduct. Under controlling circuit law, a
prosecutor commits misconduct when he or she attempts to create an impression on
the jury by innuendoes in questions when no supporting evidence exists. See, e.g.,
United States v. Kojayan, 8 F.3d 1315, 1324 (9th Cir. 1993); United States v.
Blueford, 312 F.3d 962 (9th Cir. 2002).
In this case, because defense counsel only objected as to the questions
regarding the investigator’s failure to contact Phillip’s state attorney, we review all
other issues for plain error. Fed. R. Crim. P. 52(b); United States v. Olano, 507
U.S. 725, 730-36 (1993). Under the plain error standard, relief is not warranted
unless there has been: (1) error, (2) that was plain, (3) that affected substantial
rights, and (4) that seriously affected the fairness, integrity, or public reputation of
the judicial proceedings. See United States v. Recio, 371 F.3d 1093, 1100 (9th Cir.
2004).
Assuming, without deciding, that the prosecutor’s questioning was
improper, we conclude that there was no plain error requiring reversal. The
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evidence of Sewell’s guilt, even discounting the testimony of Phillips, was
overwhelming. Therefore, the misconduct did not rise to the level of plain error.
We review the district court’s evidentiary ruling on the relevancy of the
questions regarding the investigator’s failure to contact Phillips’s state attorney for
abuse of discretion. See Tritchler v. County of Lake, 358 F.3d 1150, 1155 (9th Cir.
2004). Even if we were to find that the district court abused its discretion, we still
review to determine whether such an error was harmless. In deciding to overrule
the objection, the district court judge also examined the question on Federal Rule
of Evidence 403 prejudice grounds. Given the totality of the evidence, any error
was harmless. The amount of evidence independent from this questioning that
implicated Sewell was substantial. Even if the district court judge had sustained
the objection, we conclude it would have been unlikely to have a “substantial
effect” on the outcome.
AFFIRMED.
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