FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 11-50311
Plaintiff-Appellee,
D.C. No.
v. 3:10-cr-02803-
DMS-1
JOHN R. MALONEY ,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued and Submitted
July 13, 2012—Pasadena, California
Filed November 14, 2012
Before: Ronald Lee Gilman,* Richard C. Tallman, and
N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith;
Dissent by Judge Gilman
*
The Honorable Ronald Lee Gilman, Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.
2 UNITED STATES V . MALONEY
SUMMARY**
The panel affirmed a jury conviction for possession of
marijuana with intent to distribute.
The panel held:
• The district court did not abuse its discretion in denying
the defense surrebuttal summation, because the prosecution’s
statements in rebuttal summation addressed the arguments
made in defense counsel’s closing argument and were based
on permissible inferences from the record.
• The district court did not abuse its discretion in denying
the defendant’s motion to excuse one of the prospective jurors
for cause, because finding a prospective juror (who initially
admits bias) to be impartial is proper if the prospective juror
“ultimately asserts an ability to be fair and impartial.”
• Even assuming de novo review, the district court did not
err in denying defendant’s proposed jury instruction, because
jury instructions that indicate that the jury may “consider
character evidence along with all other evidence upon the
issue of guilt” sufficiently instruct the jury that character
evidence may create reasonable doubt of guilt.
Dissenting, Judge Gilman wrote that the district court
abused its discretion by refusing the defendant’s request to
respond in a surrebuttal to the government’s “lack-of-
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V . MALONEY 3
luggage” argument that was raised for the first time during
rebuttal; and that the error warrants a new trial.
COUNSEL
John C. Lemon, San Diego, California, for Defendant-
Appellant.
Bruce R. Castetter and Steve Miller (argued), Assistant U.S.
Attorneys, for Plaintiff-Appellee.
OPINION
John Maloney appeals his jury conviction and sentence for
possession of marijuana with intent to distribute in violation
of 21 U.S.C. § 841(a)(1). We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.
The district court did not abuse its discretion in denying
the defense surrebuttal summation, because the prosecution’s
statements in rebuttal summation addressed the arguments
made in defense counsel’s closing argument and were based
on permissible inferences from the record. The prosecution
only strays from the proper bounds of rebuttal summation
when it impermissibly raises new arguments in rebuttal
summation. See United States v. Taylor, 728 F.2d 930, 937
(7th Cir. 1984). The prosecution impermissibly raises new
arguments beyond the proper scope of rebuttal summation
when the door has not been opened by defense counsel’s
summation or when the prosecution’s arguments are not
based on reasonable inferences from the record. See United
4 UNITED STATES V . MALONEY
States v. Sayetsitty, 107 F.3d 1405, 1409–10 (9th Cir. 1997);
United States v. Gray, 876 F.2d 1411, 1417–18 (9th Cir.
1989). Further, the district court did not abuse its discretion
in denying defendant’s motion to excuse one of the
prospective jurors for cause, because finding a prospective
juror (who initially admits bias) to be impartial is proper if the
prospective juror “ultimately asserts an ability to be fair and
impartial.” United States v. Martinez-Salazar, 146 F.3d 653,
656 (9th Cir. 1998), rev’d on other grounds, 528 U.S. 304
(2000). Lastly, even assuming de novo review, the district
court did not err in denying defendant’s proposed jury
instruction, because jury instructions that indicate that the jury
may “consider character evidence along with all other
evidence upon the issue of guilt” sufficiently instruct the jury
that character evidence may create reasonable doubt of guilt.
See Carbo v. United States, 314 F.2d 718, 746 (9th Cir.
1963).
I. BACKGROUND
On June 17, 2010, John Maloney drove a Freightliner
tractor-trailer to the Highway 78 Border Patrol checkpoint in
Imperial County, California. At the checkpoint, a detector
canine (Aja-D) alerted to the tractor-trailer. Maloney agreed
to exit the tractor-trailer so that the canine could perform a
second sniff around the vehicle. Aja-D again alerted to the
sleeping area (located in the back of the cab). Maloney then
agreed to a physical search of the tractor-trailer. Border
Patrol Agents found 112 sealed packages (weighing a total of
146.06 kilograms or 321.33 pounds) of marijuana in the bunk
area behind the driver’s seat. The top bunk contained nine
bricks of marijuana in a black garbage bag. Agents found the
remaining bricks in a compartment under the bottom bunk.
UNITED STATES V . MALONEY 5
A grand jury indicted Maloney for knowingly and
intentionally possessing, with intent to distribute 100
kilograms or more of marijuana in violation of 21 U.S.C.
§ 841(a)(1). A jury trial followed, and the jury found
Maloney guilty of the indicted offense. On August 5, 2011,
the district court entered judgment and sentenced Maloney to
sixty-three months imprisonment. Maloney filed a timely
appeal.
Maloney appeals his conviction by arguing that (1) the
district court abused its discretion in denying his motion to
excuse a juror for cause; (2) the district court abused its
discretion by refusing Maloney’s proposed jury instruction
regarding the ability of the jury to find reasonable doubt based
on credibility evidence; (3) the prosecution raised new
arguments in rebuttal and the district court committed
reversible error by refusing his request for surrebuttal based
on those new arguments; and (4) the cumulative effect of the
errors warrants reversal.
II. DISCUSSION
A. Jury Selection
1. Legal Standards
When reviewing a district court’s finding of juror
impartiality “the deference due to district courts is at its
pinnacle: ‘A trial court’s findings of juror impartiality may be
overturned only for manifest error,’” Skilling v. United
States, 130 S. Ct. 2896, 2923 (2010) (quoting Mu’Min v.
Virginia, 500 U.S. 415, 428 (1991)), or in other words, for
abuse of discretion, United States v. Gonzalez, 214 F.3d 1109,
6 UNITED STATES V . MALONEY
1112 (9th Cir. 2000); United States v. Poschwatta, 829 F.2d
1477, 1484 (9th Cir. 1987), overruled on other grounds
recognized by United States v. Powell, 936 F.2d 1056, 1064
n.3 (9th Cir. 1991). Although “[d]oubts regarding bias must
be resolved against the juror,” Gonzalez, 214 F.3d at 1114
(quoting Burton v. Johnson, 948 F.2d 1150, 1158 (10th Cir.
1991)) (internal quotation marks omitted), “[t]he defendants
bear the burden . . . of showing that [the prospective juror]
was actually biased, and that the district court abused its
discretion or committed manifest error when it failed to
excuse her for cause,” United States v. Alexander, 48 F.3d
1477, 1484 (9th Cir. 1995). If the district court abuses its
discretion, “[t]he presence of a biased juror cannot be
harmless; the error requires a new trial without a showing of
actual prejudice.” Gonzalez, 214 F.3d at 1111 (quoting Dyer
v. Calderon, 151 F.3d 970, 973 n.2 (9th Cir. 1998)) (internal
quotation marks omitted).
“The Sixth Amendment secures to criminal defendants the
right to trial by an impartial jury,” Skilling, 130 S. Ct. at
2912–13, and “[t]he bias or prejudice of even a single juror is
enough to violate that guarantee,” Gonzalez, 214 F.3d at
1111. “Challenges for cause are the means by which partial
or biased jurors should be eliminated” in order to protect the
Sixth Amendment guarantee. Id. “To disqualify a juror for
cause requires a showing of either actual or implied bias
. . . .” Id. “Actual bias is ‘bias in fact’—the existence of a
state of mind that leads to an inference that the person will not
act with entire impartiality.” Id. at 1112 (alteration omitted)
(quoting Unites States v. Torres, 128 F.3d 38, 43 (2d Cir.
1997)) (internal quotation marks omitted).
UNITED STATES V . MALONEY 7
The district court does not abuse its discretion (or
manifestly err) when it finds a prospective juror who initially
admits bias to be impartial after the prospective juror
“ultimately asserts an ability to be fair and impartial.”
Martinez-Salazar, 146 F.3d at 656.
2. Pertinent Facts
During voir dire, the district court asked the prospective
jurors, “Do you believe that you would be predisposed in
favor of law enforcement or—in other words, that they start
with . . . the thumb on the scale and they have a favorable
view in your mind; or do you feel that you can fairly evaluate
their testimony based on their testimony?” In response to this
question, prospective juror six and the court had the following
exchange:
Prospective Juror: I just want to put it out
there, I had a lot of interaction with the San
Diego Sheriff’s Department. I would be
predisposed to – you know, like what he was
saying, because of their training, my
experiences I have had with them, you know,
all of my interactions I have had with the San
Diego Sheriff’s Department, more favorable.
But I still think I could be impartial as far as,
you know, carrying the weight. I just had to
put it out there, I would be predisposed to
have favorable.
The Court: Just so I am clear. If anyone from
law enforcement took the stand, are you
saying he or she starts a leg up on the other
8 UNITED STATES V . MALONEY
witnesses; or do you feel like they are just like
any other witness and you have got to evaluate
what they are going to say?
Prospective Juror: For me there might be –
well, they have a leg up.
....
The Court: Right. Do you believe that as
police officers or law enforcement that they –
these individuals are subject to the same
frailties that we all are –
Prospective Juror: Yes.
The Court: – Regardless of our position?
With that belief in mind, do you feel that
when someone from law enforcement takes
the stand you would give them the benefit of
the doubt; or would you start on a level
playing field and determine, based on what
they are saying, their responses to the
questions, their ability to perceive or hear the
things they are testifying to, those types of
things, you would be able to determine
whether you believed that testimony in whole
or in part or not at all?
Prospective Juror: I think I could, you know,
put it to a level playing field, even though my
experiences in the past, you know, the role I
am playing right now.
UNITED STATES V . MALONEY 9
The Court: Can you set aside –
Prospective Juror: I can set that aside and be
more impartial.
The Court: So do you feel that you can set
aside that prior experience and just evaluate
each witness as he or she takes the stand?
Prospective Juror: Right. Yes.
The Court: Do you feel you can do that?
Prospective Juror: Yes, sir.
Maloney’s defense counsel moved to strike several jurors
for cause, including prospective juror six. Defense counsel
noted that prospective juror six stated that he would give law
enforcement “a head start in terms of weight” compared to
other witnesses, or a “leg up. And then later he backed off of
that a little bit.” As such, defense counsel thought that he
should be excused for cause.
The district court denied the challenge of prospective
juror six for cause, because
[m]any jurors say things like, generally I
believe law enforcement because they are
trained observers, they don’t have a bias or a
stake in the outcome.
Then, in my mind, the question is, is that
just a general observation or are they really
10 UNITED STATES V . MALONEY
going to evaluate that testimony in a
predisposed way?
I understood all three [of the jurors
challenged for cause] to say that they
generally have favorable experiences with law
enforcement, they generally believe law
enforcement, for the reasons I have indicated.
But they were also very clear that they
understand law enforcement witnesses, just
like any other witness, has to be evaluated
based on his or her presentation in court and
objective criteria to determine credibility.
And would not be they would not be – giving
these witnesses favor[i]tism simply because
they represent law enforcement.
So for those reasons I would respectfully
deny the challenges.
Thereafter, Maloney used his ten peremptory challenges,
but prospective juror six was not challenged. Prospective
juror six was seated on the jury as juror four (hereinafter
“Juror 4”).
3. Analysis
Juror 4 initially indicated bias in favor of law
enforcement. However, Juror 4 ultimately definitively and
unequivocally stated that he could set aside any partiality to
law enforcement. Juror 4 stated: (1) that he thought law
enforcement officers are subject to the same frailties as all
UNITED STATES V . MALONEY 11
people; (2) that he thought he could put the testimony of law
enforcement on a level playing field as other witness
testimony; and (3) that, as to whether he could set aside any
bias that might come from his past experience with law
enforcement, “I can set that aside and be more impartial.”
Most importantly, the second-to-last question of the court
was, “So do you feel that you can set aside that prior
experience and just evaluate each witness as he or she takes
the stand?” Juror 4 responded: “Right. Yes.” Then the court
ended by asking, “Do you feel you can do that?” Juror 4
responded: “Yes, sir.” Therefore, the district court did not
abuse its discretion in finding Juror 4 impartial and denying
Maloney’s motion to excuse him for cause because Juror 4
“ultimately assert[ed] an ability to be fair and impartial.” See
Martinez-Salazar, 146 F.3d at 656. A few of our prior cases
support our decision that the district court here did not abuse
its discretion in refusing to excuse Juror 4 for cause.
In Alexander, two prospective jurors stated that they had
been robbery victims. 48 F.3d at 1482. The first prospective
juror stated that “he ‘believed’ he nonetheless could be fair
and impartial despite the subject matter of the case—armed
bank robbery.” Id. The district court did not abuse its
discretion for finding him impartial, because, even though he
“initially said he ‘believed’ he could be impartial, . . . he
ultimately stated definitively that he could separate his
experience from the facts of the case and act fairly.”1 Id. at
1
The statements we found definitive and unequivocal were as follows:
THE COURT: . . . Do you feel that you can be fair and
impartial in this kind of case or not?
JUROR AUSTIN: I believe so.
12 UNITED STATES V . MALONEY
1484. The second prospective juror indicated that her
husband had been held at gunpoint. Id. at 1483 n.2. After
being asked whether her husband’s experience would impede
her from being impartial she responded, “I don’t believe so,
no.” Id. Then, after being asked whether she could set aside
her feelings and be impartial, she stated, “I believe so, yes.”
Id. After noting that this was a close call, we held that the
district court did not abuse its discretion, because deference
is due the district court, it was able to view her demeanor and
assess her credibility, and the defendant failed to meet his
burden of proof. Id. at 1484.
In United States v. Daly, the prospective juror indicated
that his former employment may impair his partiality.
716 F.2d 1499, 1507 (9th Cir. 1983). The court followed up
by asking whether he could set that aside. Id. He repeatedly
stated, “I will try.” Id. Ultimately, the court asked: “Well, do
you think you could do that? That is only a decision that you
can make . . . .” Id. The prospective juror responded, “Okay,
I will do it.” Id. We determined that reversal was not
required, because the defendant failed to show that the
prospective juror was actually biased. Id.
....
THE COURT: Do you feel-and you are probably the
only person who can tell us this. Do you feel you can
separate that out and be fair when you hear the facts of
a case that are somewhat similar to you?
JUROR AUSTIN: Yes sir.
Alexander, 48 F.3d at 1482 n.1.
UNITED STATES V . MALONEY 13
Conversely, in Martinez-Salazar, the district court abused
its discretion by not excusing a juror for cause, “because [the
juror] did not and would not affirmatively state that he could
lay aside his admitted bias in favor of the prosecution.”
Martinez-Salazar, 146 F.3d at 656. The juror “clearly
acknowledged this bias, even after being instructed by the
district court that it was ‘contrary to our whole system of
justice.’ He never retreated from his statement of bias; he
only cryptically stated that he understood the presumption of
innocence ‘in theory.’” Id.
Comparing Juror 4’s statements to the situations in the
cases just recounted, the district court did not abuse its
discretion in denying defendant’s motion to excuse Juror 4 for
cause, because Juror 4 ultimately stated that he could be
impartial.
B. Jury Instructions
1. Legal Standards
“We review de novo the denial of a jury instruction based
on a question of law.” United States v. Castagana, 604 F.3d
1160, 1163 n.2 (9th Cir. 2010) (citing United States v.
Wiseman, 274 F.3d 1235, 1240 (9th Cir. 2001)). This
includes whether the jury instructions adequately cover the
defendant’s theory of defense. United States v. Duran,
59 F.3d 938, 941 (9th Cir. 1995). “It is not reversible error,
however, to reject a defendant’s proposed instruction on his
theory of the case if other instructions, in their entirety,
adequately cover that defense theory.” Id. (alteration in
original omitted) (quoting United States v. Dees, 34 F.3d 838,
842 (9th Cir.1994)). We review the district court’s
14 UNITED STATES V . MALONEY
formulation of the jury instructions for abuse of discretion.
United States v. Woodley, 9 F.3d 774, 780 (9th Cir. 1993).
“We examine whether or not the instructions taken as a whole
were misleading or represented a statement inadequate to
guide the jury’s deliberations.” United States v. Powell,
955 F.2d 1206, 1210 (9th Cir. 1991) (internal quotation marks
omitted).
“Neither the prosecution nor a defendant is entitled to the
particular language requested in a proposed jury instruction.”
Id. “A trial court is given substantial latitude in tailoring jury
instructions so long as they fairly and adequately cover the
issues presented.” Id. (internal quotation marks omitted).
Character “testimony alone, in some circumstances, may
be enough to raise a reasonable doubt of guilt and . . . in the
federal courts a jury in a proper case should be so instructed.”
Michelson v. United States, 335 U.S. 469, 476 (1948) (citing
Edgington v. United States, 164 U.S. 361, 366 (1896)). Ninth
Circuit law indicates that the requirement set forth by the
Supreme Court is met by “[i]nstructing the jury that good-
character testimony, ‘like other testimony,’ may generate a
reasonable doubt as to guilt, justifying an acquittal . . . .”
Smith v. United States, 305 F.2d 197, 206 (9th Cir. 1962);
accord Carbo, 314 F.2d at 746. The Ninth Circuit does not
“require any more than that the jury be freely permitted to
consider character evidence along with all other evidence
upon the issue of guilt.” Carbo, 314 F.2d at 746.
2. Pertinent Facts
Maloney called three character witnesses that testified to
his honesty, truthfulness, and integrity. Based on these
UNITED STATES V . MALONEY 15
witnesses, Maloney submitted the following proposed jury
instruction:
Mr. Maloney presented evidence to show that
he enjoys a reputation for honesty,
truthfulness, and integrity in his community.
Such evidence may indicate to you that it is
improbable that a person of such character
would commit the crimes charged, and,
therefore, cause you to have a reasonable
doubt as to his guilt. You should consider any
evidence of Mr. Maloney’s good character
along with all the other evidence in the case
and give it such weight as you believe it
deserves. If, when considered with all the
other evidence presented during this trial, the
evidence of Mr. Maloney’s good character
creates a reasonable doubt in your mind as to
his guilt, you should find him not guilty.
The district court refused to give the instruction. Instead,
the court gave the former 2003 Ninth Circuit instruction No.
4.4, which states: “You have heard evidence of the
defendant’s character for truthfulness, honesty and law
abidingness. In deciding this case, you should consider that
evidence together with and in the same manner as all the other
evidence in the case.” The court indicated that it was
unnecessary to even give the former instruction 4.4, because
in 2010, the Ninth Circuit Jury Committee indicated that it
believed a jury instruction regarding character evidence of the
defendant adds nothing to “the general instruction regarding
the consideration and weighing of evidence, which is set out
16 UNITED STATES V . MALONEY
in, among other places, instruction No. 8.” See Model Crim.
Jury Instr. 9th Cir. 4.4 (2010).
3. Analysis
Maloney argues that the district court erred, because the
court’s instructions failed “to explain that evidence of [the]
defendant’s good character may create reasonable doubt of
guilt.” In other words, Maloney contends that the district
court’s formulation of the jury instructions did not adequately
present the nexus between good character and reasonable
doubt. Maloney’s argument seems to be about the language
and formulation of the jury instructions, which should be
reviewed for an abuse of discretion. See Woodley, 9 F.3d at
780; United States v. Marabelles, 724 F.2d 1374, 1383 (9th
Cir. 1984) (“Finally, although a criminal defendant is entitled
to an instruction regarding his theory of the case, challenges
which merely pertain to the trial judge’s language or
formulation of the charge are reversible only for an abuse of
discretion.”). Maloney makes a standard of review argument
that urges us to apply a de novo standard, but we find the
argument confusing. Nonetheless, a decision as to the proper
standard of review will not control the outcome, because,
even under de novo review, the district court did not err.
There was no error, because the district court’s jury
instructions did not mislead the jury or inaccurately state the
law. See Powell, 955 F.2d at 1210. Instead, reviewing the
instructions as a whole, we find that they indicated “that
good-character testimony, ‘like other testimony,’ may
generate a reasonable doubt as to guilt, justifying an
acquittal,” Smith, 305 F.2d at 206, and that the jury was
UNITED STATES V . MALONEY 17
“free[] . . . to consider character evidence along with all other
evidence upon the issue of guilt,” Carbo, 314 F.2d at 746.
The district court instructed the jury that, “[i]f after a
careful and impartial consideration of all the evidence, you
are not convinced beyond a reasonable doubt that the
defendant is guilty, it is your duty to find the defendant not
guilty.” The court instructed that reasonable doubt “may arise
from a careful and impartial consideration of all the
evidence.” The district court also indicated that “all the
evidence” includes character testimony: “You have heard
evidence of the defendant’s character for truthfulness, honesty
and law abidingness. In deciding this case, you should
consider that evidence together with and in the same manner
as all the other evidence in the case.” Lastly, the jury
instructions state that the jury must consider all the
instructions and that they are all important. The district
court’s instructions “fairly and adequately cover the issues
presented.” See Powell, 955 F.2d at 1210 (internal quotation
mark omitted).
C. Closing Arguments
1. Legal Standards
The district court “is given great latitude in . . . limiting
the scope of closing summations.” Herring v. New York,
422 U.S. 853, 862 (1975). The district court has broad
discretion to “ensure that argument does not stray unduly
from the mark, or otherwise impede the fair and orderly
conduct of the trial.” Id. “[T]he trial court is presumed to be
in a better position . . . to gauge” the appropriateness of
arguments made during closing summations. See Interstate
18 UNITED STATES V . MALONEY
Markings, Inc. v. Mingus Constructors, Inc., 941 F.2d 1010,
1015 (9th Cir. 1991). As such, it is left to the district court’s
sound discretion, on a case-by-case basis, to determine
whether a defendant should be granted surrebuttal summation.
United States v. Garcia, 94 F.3d 57, 63 (2d Cir. 1996). We
therefore review a district court’s decision to deny surrebuttal
for an abuse of discretion. See United States v. Butcher,
926 F.2d 811, 817 (9th Cir. 1991) (“We review a district
court’s rulings on the admission or exclusion of surrebuttal
evidence for abuse of discretion.”).
In deciding whether a district court has abused its
discretion in denying surrebuttal, we must recognize that
prosecutors are “granted reasonable latitude to fashion closing
arguments.” Gray, 876 F.2d at 1417. “Although it is
improper to base closing arguments upon evidence not in the
record, prosecutors are free to argue reasonable inferences
from the evidence.” Id. (citation omitted). “During closing
argument, ‘[p]rosecutors have considerable leeway to strike
“hard blows” based on the evidence and all reasonable
inferences from the evidence.’” United States v. Hermanek,
289 F.3d 1076, 1100 (9th Cir. 2002) (alteration in original)
(quoting United States v. Henderson, 241 F.3d 638, 652 (9th
Cir. 2000)). However, in the specific context of rebuttal
summation, “a prosecutor cannot use rebuttal to put forth new
arguments, but is restricted to responding to the points made
by the defense counsel in closing argument.” Taylor,
728 F.2d at 937.
Notwithstanding, “[i]t is ‘fair advocacy’ for the
prosecution to advance an argument in rebuttal to which the
defendant has opened the door.” Gray, 876 F.2d at 1417
(quoting United States v. Lopez, 803 F.2d 969, 972 (9th Cir.
UNITED STATES V . MALONEY 19
1986)). Therefore, a district court abuses its discretion by not
allowing defendant surrebuttal if the prosecution raises new
issues on rebuttal to which the defense has not opened the
door in its closing argument and which are not based on
reasonable inferences from the record. See 2A Charles Alan
Wright, et al., Federal Practice & Procedure, Rules of
Criminal Procedure § 476 n.4 (4th ed.) (“Defendant has no
right of surrebuttal where the prosecution has not raised any
new issues in its rebuttal.” (citing United States v. Sarmiento,
744 F.2d 755, 766 (11th Cir. 1984)); Sayetsitty, 107 F.3d at
1409–10 (noting that the prosecution does not make improper
rebuttal comments when they embrace reasonable inferences
from the record and defense counsel invited a reply in closing
argument).
The district court’s underlying determinations of whether
the prosecution’s rebuttal argument responded to points made
by the defendant in closing argument and whether the
prosecution’s points were based on reasonable inferences are
afforded deference. Gray, 876 F.2d at 1417 (“We review a
district court’s determination that rebuttal statements
constitute permissible inferences for an abuse of discretion,”
and “[w]e review district court determinations regarding the
proper scope of rebuttal closing argument for an abuse of
discretion.”). The district court’s decisions must be “(1)
illogical, (2) implausible, or (3) without support in inferences
that may be drawn from the facts in the record” to be an abuse
of discretion. United States v. Hinkson, 585 F.3d 1247, 1262
(9th Cir. 2009) (en banc) (internal quotation marks omitted).
Our application of that highly deferential standard of review
differs from the dissent’s, which relies on case law that did
not apply the Hinkson standard, which our en banc panel
clarified in 2009.
20 UNITED STATES V . MALONEY
Even if a district court abuses its discretion in denying a
defendant’s request for surrebuttal, harmless error review
applies. See United States v. Reyes, 660 F.3d 454, 461 (9th
Cir. 2011). In deciding whether the denial of surrebuttal was
harmless error “we consider in the context of the entire trial
‘whether it is more probable than not that the prosecutor’s
conduct materially affected the fairness of the trial.’” Id.
(quoting United States v. McKoy, 771 F.2d 1207, 1212 (9th
Cir. 1985)).
2. Pertinent Facts
In Maloney’s opening statement, he set forth his defense
that he did not know the marijuana was in the cab of his truck
and that he was set up by Robert Hernandez. During trial,
Maloney testified that he had no knowledge of the marijuana.
Essentially, Maloney testified about the events surrounding
the arrest and that Robert Hernandez must have hidden the
marijuana in the truck without Maloney’s knowledge.
Maloney testified that his part-time employer2 referred
him to Hernandez, who was looking for a truck driver.
Maloney had driven large trucks in the late 1980s and early
1990s. Upon meeting Hernandez, Hernandez proposed to
have Maloney drive a truck as an independent contractor.
Maloney would purchase and use one of Hernandez’s old
trucks and slowly pay it off as he worked. Maloney told
Hernandez he had a commercial permit but not a commercial
license. Therefore, Hernandez put Maloney’s name on the
side of the truck, and Maloney practiced driving the truck.
2
The record does not indicate what type of work Maloney was doing for
his part-time employer.
UNITED STATES V . MALONEY 21
Maloney and Hernandez went to the “trucking insurance
place” twice, the first time to fill out paperwork and the
second time to get plates and a registration sticker. Maloney
stated that the insurance was never in his name. Later,
Hernandez accompanied Maloney to Maloney’s commercial
driving test, but he failed.
Maloney testified that a week after the failed test,
“[Hernandez] called [Maloney] and said that he had a trip, a
short run. That one of his drivers’ [Rick Garcia] . . . truck[s]
had broke[n] down. And because he had a license he could
use [Maloney’s] truck and [Maloney] could get some
experience.” Hernandez told Maloney that Garcia would be
going with Maloney to Riverside, California, to pick up a load
of Clorox and deliver it to Las Vegas, Nevada. Maloney
agreed to go.
Garcia and Maloney used the truck to transport Clorox
from Riverside to Las Vegas. They arrived in Las Vegas in
the late afternoon, so they stayed at a truck stop in Las Vegas.
The next morning they dropped off the load. Hernandez
called that morning and requested they drive to El Centro,
California, to pick up a new load, because he could not find
a load in Las Vegas.
Garcia and Maloney then drove to El Centro and met
Hernandez at a truck stop. However, Hernandez said that he
had not procured a job yet in El Centro, so he put Maloney up
in a hotel for two nights. Hernandez then told Maloney that
he had a load in Blythe, California, and instructed him to
drive alone to Blythe and call Hernandez for the address when
he arrived. Garcia was not present, and Maloney did not
know where Garcia was or why he was absent.
22 UNITED STATES V . MALONEY
Before leaving for Blythe, Maloney inspected the truck
but not the cab. It was on his way to Blythe that Maloney
stopped at the checkpoint and was arrested. Thereafter,
Maloney and investigating agents were unable to contact
Hernandez.
On re-direct, Maloney introduced the commercial driving
permit into evidence; it was dated April 12, 2010. Maloney
also introduced into evidence an insurance liability certificate
for the truck. The insurance certificate listed Andrew David
Gil as the driver of the truck.
Then, on re-cross examination, Maloney testified that he
met Hernandez in early May or June. The Government also
verified that Maloney obtained the permit in April. Next, the
Government verified that Maloney testified that he went to
the insurance business to get insurance. Then the
Government asked how many days it was before he left for
Las Vegas that he visited the insurance business, but Maloney
could not remember. The Government asked who went with
him to the insurance business, and Maloney said Hernandez
drove him there. Lastly, the Government continued by asking
who Andrew David Gil was, but Maloney did not know.
During closing argument, Maloney’s counsel reiterated
the defense theory and claimed that the evidence showed that
he did not know about the marijuana. Maloney’s counsel
went through Maloney’s testimony and other evidence and
asserted that it showed that Maloney was set up and had no
knowledge of the marijuana.
After giving Maloney’s interpretation of the evidence,
Maloney’s counsel urged: “What [Maloney] testified to
UNITED STATES V . MALONEY 23
yesterday was reasonable and it was credible. And the
Government is trying to say it is completely unreasonable, it
is preposterous.” Then counsel proffered reasons why the
“work-to-own” idea corroborated Maloney’s testimony,
because it was obviously used to get Maloney to drive for
Hernandez and limit Hernandez’s risk. Counsel continued by
stating:
First of all we know, inferentially, the last
person to have the truck before John Maloney
got in it in El Centro and drove it to the
checkpoint was obviously the person using the
name Robert Hernandez. Robert Hernandez
could easily have taken whatever documents
John had in that truck and gotten rid of them
for whatever reason, and John would not
necessarily have been aware of that – likely
would not have been aware of that.
Maloney’s counsel concluded by arguing that “[Maloney’s]
testimony was palpable, visceral, and it was real.” Further,
Maloney’s counsel stated: “Did the Government prove him a
liar beyond a reasonable doubt? Was there a got-you moment
there where he gets nailed? Absolutely not. [Maloney] told
you what happened to him, and he told you in a credible,
reasonable way.”
In rebuttal closing argument, the Government discussed
what evidence was presented but then turned to what evidence
was missing in order to disprove Maloney’s theory of the case
and prove his testimony unworthy of belief. The
Government’s comments and arguments on the “missing”
evidence are pertinent to this appeal.
24 UNITED STATES V . MALONEY
First, after referencing Maloney’s argument that someone
else had access to the truck and could have taken documents,
the Government noted that by taking the insurance certificate
and registration document Hernandez would increase the
likelihood of having law enforcement find the marijuana.
Similarly, the Government noted the required trip log and
cargo manifest were also missing from the truck. Further, to
cast doubt on Maloney’s credibility, the Government pointed
out that the insurance certificate (which was missing from the
truck but offered into evidence during Maloney’s testimony)
was dated June 14, 2010, the day he left for Las Vegas. The
Government called this the “other kicker.” The Government
also pointed out Andrew David Gil’s name was on the
insurance certificate and even had Gil’s drivers license
number.
Maloney’s counsel objected twice on the ground that the
Government misrepresented the testimony. The court
overruled the objections, “with the admonition that this is
counsel’s argument, it is up to the jury to determine the facts.”
Second, the Government noted that Maloney testified that
he had been away from trucking for many years until meeting
Hernandez in late May or early June. However, the
Government argued that this made no sense because Maloney
testified to applying for a Class A license in April 2010, well
before meeting with Hernandez. Thus, according to the
Government, Maloney should not be believed, because there
would be no reason to seek the license in April if he had truly
just returned to trucking in May or June.
Third, the Government argued that Maloney’s story was
generally unbelievable because there was no evidence of any
UNITED STATES V . MALONEY 25
luggage. The Government reasoned that, if Maloney knew he
was going to be gone and if he truly was gone for three days,
then he would have brought luggage. The Government began
the rebuttal closing argument with references to the movie A
Few Good Men to analogize Maloney’s lack of luggage with
the scene where Tom Cruise inspects the murdered marine’s
barracks. Just as the marine would have had luggage if he
was truly awaiting transport in the movie, Maloney would
have had luggage if he really was telling the truth about being
gone for three days.
After the Government ended its rebuttal closing argument,
Maloney’s counsel moved for surrebuttal, arguing that the
Government made three new arguments that he was unaware
would be made: (1) that the date of getting the insurance
certificate indicated that Maloney lied about the date he got
the certificate even though Maloney never stated the exact day
he received it; (2) that the evidence of Maloney trying to get
a learner’s permit in April indicated that he was lying about
being approached to drive by Hernandez; and (3) that
Maloney’s counsel never asked about Maloney’s luggage
during testimony, because this argument was new, and
Maloney would have testified that he had a bag but it
disappeared. Maloney’s counsel argued that, because these
arguments did not come out in the prosecution’s initial
closing argument, he had no chance to respond. The district
court denied the motion for surrebuttal, stating:
I would decline that invitation. I think we
followed the normal order, that closing
argument, here, I think, was appropriate in all
respects. I am concerned about having a
surrebuttal based on the arguments presented.
26 UNITED STATES V . MALONEY
Also, Mr. Maloney testified. Certain things
were testified to, certain things were not. And
there is going to be an interpretation on any
surrebuttal to proffer what he would have
testified about.
The defense later moved for a mistrial, which was also
denied.
3. Analysis
i. Misconduct
Maloney argues that the prosecution’s discussion about
the absence of luggage, the insurance certificate, and
Maloney’s learner’s permit constituted new arguments, which
were improper during rebuttal summation. He argues that the
improper arguments prejudiced him such that a new trial is
required, because the district court did not allow surrebuttal.
The prosecution claims these statements were based upon
reasonable inferences from the evidence and that defense
counsel’s statements during closing arguments opened the
door to the prosecution’s rebuttal summation.
The district court did not abuse its discretion in
determining that the Government’s rebuttal summation was
proper and thus no surrebuttal was required. Maloney’s
counsel opened the door to argument addressing the
credibility and believability of Maloney and his story.
Specifically, defense counsel invited a reply by the
prosecution to address Maloney’s claims that “what
[Maloney] testified to yesterday was reasonable and it was
credible. And the Government is trying to say it is completely
UNITED STATES V . MALONEY 27
unreasonable, it is preposterous.” In his closing argument,
defense counsel concluded by emphasizing that Maloney’s
“testimony was palpable, visceral, and it was real” and that
the Government never proved him a liar beyond a reasonable
doubt. In essence, defense counsel argued to the jury that
Maloney should be found not guilty, because Maloney
himself and his story were believable and credible. However,
defense counsel did not stop there, counsel went on to assert
that the Government had never cast doubt on Maloney’s
credibility or honesty.
To rebut Maloney’s closing argument claims, the
prosecution referred to potential factual inconsistencies in
Maloney’s testimony. The prosecution’s rebuttal statements
(argued to be improper new arguments by Maloney) about the
insurance certificate, the driving permit, and the lack of
luggage were proffered to cast doubt on the truthfulness and
credibility of Maloney and the reasonableness of his story.
The district court had discretion to determine whether the
prosecution was within the proper scope of rebuttal
summation, and it was neither implausible nor illogical for the
district court to find that the prosecution’s statements in
rebuttal were invited by defense counsel. See Gray, 876 F.2d
at 1417.
Further, even though defense counsel’s closing argument
did not expressly mention the date of the insurance certificate,
drivers permit, trip log, cargo manifest, or luggage, defense
counsel opened the door to that information being presented
in the prosecution’s rebuttal summation by basing its
argument on the proposition that the Government had not cast
doubt on Maloney’s credibility and had not shown him to be
a liar. The specific content of the prosecution’s arguments are
28 UNITED STATES V . MALONEY
red herrings. Defense counsel opens the door to topics or
issues, not specific facts. See United States v. Lawson,
483 F.2d 535, 538 (8th Cir. 1973) (noting rebuttal was likely
proper because defense counsel had spoken to the same areas
of argument).
In this case, the Government’s rebuttal argument pointed
to apparent factual inconsistencies in Maloney’s testimony to
show him incredible and pointed to problems in Maloney’s
story to show it unreasonable. First, although Maloney
testified that he and Hernandez went to get insurance weeks
before the Las Vegas trip, the insurance certificate was dated
the day Maloney allegedly went to Las Vegas. Second,
although Maloney testified that he had not driven trucks since
the late 80’s and early 90’s and did not meet Hernandez until
late May or early June of 2010, his commercial permit was
dated April 12, 2010. Third, despite a requirement that all
common carriers have trip logs and cargo manifests, Maloney
had neither. Lastly, although Maloney stated that he had been
on the road for three days before the arrest, there was no
evidence of any luggage. It is not illogical or implausible to
conclude that the fundamental point of each of these facts is
that Maloney was not credible and his story unreasonable
because there seemed to be inconsistencies. Thus, the district
court did not abuse its discretion in determining that the
prosecution’s rebuttal summation was proper as a response to
defense counsel’s assertions that the prosecutor had never
proved Maloney a liar.3
3
The dissent cites our sister circuit case, United States v. Rubinson,
543 F.2d 951, 966 (2d Cir. 1976), for the proposition that defense counsel
opens the door only when unexpected arguments are raised for the first
time during defendant’s closing argument. The dissent reasons that,
UNITED STATES V . MALONEY 29
Our case of United States v. Gray supports this
conclusion. There we stated that “[i]t is ‘fair advocacy’ for
the prosecution to advance an argument in rebuttal to which
the defendant has opened the door.” Gray, 876 F.2d at 1417;
see also United States v. Mende, 43 F.3d 1298, 1300–01 (9th
Cir. 1995). In Gray, we found that the Government’s closing
argument was not beyond the scope of rebuttal summation.
In that case, Gray missed his sentencing hearing and was
indicted for the absence. Gray, 876 F.2d at 1413. A warrant
was issued for his arrest, and about two and a half months
later Gray was detained in Mexico, transferred to the border,
and arrested. Id. At Gray’s trial, no one testified that Gray
because Maloney did not open the door unexpectedly during closing
argument on the issue of his credibility, the prosecutor should not have
been allowed to introduce new facts on rebuttal when those facts could
have been introduced previously to rebut credibility. Rubinson states that
the prosecution “may not use the defense’s [closing argument] to justify
the reference to facts or the assertion of claims which it could have, but
did not, introduce at trial . . . .” Id.
In rebuttal, the prosecutor commented on testimony that came out at
trial, specifically in answer to defense counsel’s closing argument that
Maloney’s testimony was credible. M aloney testified that he was going
on a short trip to Las Vegas and did not reference having any luggage in
his testimony. The prosecutor attempted to address inconsistencies in
Maloney’s testimony during rebuttal in order to discredit Maloney. The
prosecutor asked, “W here is his stuff?” Then he noted, “If he didn’t have
any luggage – or if he had luggage, then the possibility would have been,
[Maloney had to] put it somewhere.” Finally, the prosecutor concluded,
if Maloney “had luggage, that [the rear cab] is where he would put it,”
requiring Maloney to have been in close proximity to where the marijuana
was stashed on top of the bunk beds. The prosecutor raised questions
about Maloney’s testimony in order to alert the jury to this possible
inconsistency. The prosecutor did not raise a new argument or a new
issue. W e also do not believe such an approach constitutes referencing
new facts or claims during rebuttal.
30 UNITED STATES V . MALONEY
was hiding in Mexico, and during closing arguments “the
defense summation made no reference to Mr. Gray’s arrest in
Mexico.” Id. at 1417 (internal quotation mark omitted).
However, defense counsel argued during closing arguments
that Gray was not aware of his sentencing date and his
obligation to appear and that his failure to appear was not a
continuing offense. Id. at 1417–18.
In rebuttal summation, the prosecutor argued that Gray
was aware of his legal obligations, and the fact that it took
nearly three months to find him in Mexico proved that he was
hiding to evade his troubles. See id. at 1417. Defense
counsel objected to the prosecution’s argument, stating there
was no evidence to indicate Gray was hiding. Id. The court
held that Gray opened the door by bringing up Gray’s
intentions for going to Mexico; therefore, the prosecution’s
response was “well within the scope of rebuttal argument.”
Id. at 1418.
The district court here did not abuse its discretion in
determining that the prosecution’s arguments were
permissible inferences from the record. See id. at 1417. First,
regarding the insurance certificate, Maloney testified that he
went to the insurance business with Hernandez well in
advance of leaving for Las Vegas, the insurance certificate
was dated the same day Maloney alleged he left for Las
Vegas. Further, the insurance certificate named Maloney as
the insured and Andrew David Gil as the scheduled driver,
but Maloney testified that he did not know Gil. The
Government brought out many of these inconsistencies during
its cross and re-cross examination of Maloney. Thus, the
district court did not abuse its discretion because the
Government’s rebuttal closing argument regarding the
UNITED STATES V . MALONEY 31
insurance certificate was reasonable in light of the evidence
presented. The prosecution made a permissible inference that
Maloney’s testimony was not credible, as evident from the
inconsistencies between his testimony and other evidence
before the jury.
Similarly, the district court did not abuse its discretion in
determining that the Government’s statements regarding
Maloney’s driving permit were permissible inferences
because Maloney testified that he decided to start driving
trucks again upon meeting Hernandez in May or June of
2010. In closing arguments, the Government reasoned that if
Maloney’s claims about the timing of his return to truck
driving were true, it would not make sense for him to be
applying for a commercial permit in April 2010, a month or
so before meeting Hernandez. Pointing out this inconsistency
did not contain any impermissible inferences which would
lead us to conclude that the district court abused its discretion.
The district court also did not abuse its discretion by
allowing the Government to raise the issue of Maloney’s
missing trip log and cargo manifest in closing argument.
Although Maloney testified that he had a manifest for the load
and knew it was required, none was found when the D.E.A.
inspected the truck. This was another factual discrepancy that
called into question Maloney’s credibility, and it was not an
abuse of discretion for the district court to allow it.
Lastly, the district court did not abuse its discretion in
determining that the Government’s rebuttal argument
regarding Maloney’s lack of luggage was a permissible
inference from the record. Maloney testified that he had been
on the road for three days at the time of his arrest. Maloney’s
32 UNITED STATES V . MALONEY
testimony also showed that he had the ability to make
deliveries that could last up to ten days, that he had a sleeping
area in his truck, and that his truck was specifically designed
for long trips. Therefore, even though Maloney testified that
Hernandez requested he make a “short run,” the prosecution’s
inference that the trip necessitated luggage was “certainly
within the bounds of fair advocacy.” See United States v.
Blueford, 312 F.3d 962, 968 (9th Cir. 2002). A prosecutor is
allowed “to ask the jury to draw inferences from the evidence
that the prosecutor believes in good faith might be true.” Id.
(emphasis added). Because there was support for the
inference that could be “drawn from facts in the record[,]” the
district court did not abuse its discretion in denying
surrebuttal.4 See Hinkson, 585 F.3d at 1264.
ii. Harmless Error
Even if we were to find that the district court abused its
discretion, any error in allowing the Government’s summation
was harmless. “Where defense counsel objects at trial to acts
of alleged prosecutorial misconduct, we review for harmless
error on defendant’s appeal . . . .” United States v. Hinton, 31
4
The dissent contends that this ruling will give way to a situation where
a prosecutor could, on rebuttal, raise wholly unrelated arguments despite
lack of supporting evidence (e.g., that the prosecutor here could have
argued that Maloney cheated on his tax returns even though nothing in the
record demonstrates this). Our holding today does not authorize such a
scenario. Allowing the prosecutor to draw inferences based on the events
to which a defendant testifies (i.e., the circumstances leading up to the
arrest) is distinct from allowing the prosecutor to advance a new argument
in rebuttal, to discuss a new issue in rebuttal, or even to argue unrelated
facts simply to challenge credibility after the defendant testifies (e.g.,
introducing for the first time evidence that the defendant cheated on his or
her taxes).
UNITED STATES V . MALONEY 33
F.3d 817, 824 (9th Cir. 1994). The harmless error standard
applies here because Maloney objected by moving for
surrebuttal summation immediately following the
Government’s rebuttal summation. Harmless error requires
us to “consider in the context of the entire trial whether it is
more probable than not that the prosecutor’s conduct
materially affected the fairness of the trial.” Reyes, 660 F.3d
at 461 (internal quotation marks omitted).
Based on the entire context of the trial, it is not more
probable than not that the fairness of Maloney’s trial was
affected. First, the evidence against Maloney was strong. He
was driving the tractor-trailer, it had his name on it, and nine
blocks of the marijuana were found in the cab behind the
driver’s seat of the tractor-trailer, sitting in plain view on the
top bunk. This large quantity of marijuana was difficult to
hide and would hardly be unnoticeable to Maloney.
Maloney’s only defense was that he was not aware of the
marijuana.
Second, the judge admonished the jury that rebuttal
summation was only the argument of counsel, not evidence,
and that the jury had the job of determining the facts. See
United States v. Bracy, 67 F.3d 1421, 1431 (9th Cir. 1995)
(holding, on plain error review, that the district court’s
caution to the jury that questions, objections, statements, and
arguments of counsel are not evidence “neutralized any
prejudicial effect the prosecutor’s statement may have had”).
It is “presume[d] jurors follow the court’s instructions absent
extraordinary situations.” Tak Sun Tan v. Runnels, 413 F.3d
1101, 1115 (9th Cir. 2005).
34 UNITED STATES V . MALONEY
Lastly, in response to the dissent, we are satisfied on this
record that it was harmless error for Maloney’s request for
surrebuttal specifically about luggage to be denied. When
Maloney’s counsel requested surrebuttal, counsel stated that
Maloney would have testified that he had a bag, but he did not
know what happened to it. If the jury would have heard this
argument, it would have been easy for the jury to infer that
Maloney would have put the bag in the cab. Then when the
bag went missing, he would have searched for the bag in the
cab and found the nine bricks of marijuana on the top bunk.
Further, Maloney testified that Hernandez called him to
make a “short run” to Las Vegas. Las Vegas is only a four
hour drive from Riverside. Therefore, the prosecutor’s
argument was not necessarily in conflict with Maloney’s
testimony. The jury could have considered the lack-of-
luggage argument and found no inconsistency with Maloney’s
testimony. If Maloney believed he was only going to Las
Vegas, he would not have needed to pack luggage and there
would have been no apparent reason for him to look in the
cab of the truck. In contrast, if Maloney’s defense counsel
would have argued in surrebuttal that Maloney had a bag, the
jury would have been left with an inconsistency in Maloney’s
story. Having luggage may have suggested to the jury that
Maloney knew all along that he would be going to El Centro
and Blythe. This would have jeopardized Maloney’s
credibility much more than the unanswered luggage
statements made by the prosecution in rebuttal.
In sum, because the evidence against Maloney was strong,
and because the district court gave an instruction that the jury
is presumed to have followed, we cannot say that “it is more
probable than not that the prosecutor’s conduct materially
UNITED STATES V . MALONEY 35
affected the fairness of the trial.” See Reyes, 660 F.3d at 461
(quoting McKoy, 771 F.2d at 1212) (internal quotation marks
omitted).
We disagree with the dissent’s reading of our opinion that
all Hein v. Sullivan, 601 F.3d 897 (9th Cir. 2010), factors
suggest that the prosecutor’s rebuttal necessitates a new trial
for Maloney. First, we cannot conclude that the prosecutor
misstated the evidence. As explained previously, the
prosecutor did not definitively say Maloney was without
luggage. He simply raised questions based on the record in
order to alert the jury to a possible inconsistency. Second,
while the judge did not admonish the jury to disregard the
prosecutor’s argument, the jury was instructed that counsel’s
arguments are not evidence. Thus, the jury would have
understood that it could accept or reject the inferences
suggested by the prosecutor. Third, defense counsel’s closing
argument opened the door to a response regarding why
Maloney’s testimony was not credible. Fourth, although
defense counsel was not given an opportunity for surrebuttal,
we do not consider this factor dispositive.
Finally, in light of the other evidence against Maloney,
and in the context of the other arguments made by both
counsel, we cannot conclude that the luggage argument was
prominent in the jury’s mind. Although the dissent argues
that a jury note shows that the jury placed great emphasis on
whether Maloney had luggage, we cannot draw that
conclusion from the note. The note asked to see Exhibit K,
which defense counsel used to elicit testimony from the case
agent that Maloney had $1.27 on his person at the time of the
arrest.
36 UNITED STATES V . MALONEY
Even assuming the prosecutor’s rebuttal was improper, we
cannot conclude that a new trial is required. Thus, the district
court’s ruling must be affirmed.
D. Cumulative Error
“In some cases, although no single trial error examined in
isolation is sufficiently prejudicial to warrant reversal, the
cumulative effect of multiple errors may still prejudice a
defendant.” United States v. Frederick, 78 F.3d 1370, 1381
(9th Cir. 1996). Because we find no error in this case, there
can be no cumulative effect of multiple errors.
III. CONCLUSION
For all of the foregoing reasons, the district court’s
judgment is AFFIRMED.
GILMAN, Circuit Judge, dissenting:
I agree with the majority’s analysis on all but the
following two issues: (1) whether the district court abused its
discretion by refusing Maloney’s request to respond in a
surrebuttal to the government’s “lack-of-luggage” argument
that was raised for the first time during rebuttal; and (2) if so,
whether that error warrants a new trial. Contrary to the
majority, I believe that the answers to these two questions
should be “yes.” I therefore respectfully dissent.
UNITED STATES V . MALONEY 37
I. The district court abused its discretion
The lack-of-luggage argument played a prominent role in
the government’s rebuttal during closing arguments. As part
of his rebuttal, the prosecutor asserted for the first time that
Maloney must have been lying about the purpose of his trip
between the California cities of El Centro and Blythe because
there was no luggage found in the truck when it was stopped
at the Highway 78 Border Patrol checkpoint. The prosecutor
made this lack-of-luggage argument despite the fact that there
was no evidence presented at trial to establish whether
Maloney did or did not have luggage during the trip.
Emphasizing the new lack-of-luggage argument, the
prosecutor began his rebuttal by describing a scene from A
Few Good Men, a movie about a murder trial. In the scene
described, an attorney played by Tom Cruise argued that he
could prove that certain Marine officers had lied when they
testified that the victim—who had died in the middle of the
night—was scheduled to permanently leave the naval base at
Guantanamo Bay early the next morning because there was no
evidence that the victim had packed any of his belongings.
The prosecutor in the present case urged the jury to think
about the evidence that was not presented, just like Tom
Cruise had done in the movie:
Which comes to the final thing that is not
there. And when I tell you this, you will
realize why I remembered the scene in A Few
Good Men.
38 UNITED STATES V . MALONEY
Remember the testimony [of Maloney]: I
met Mr. Hernandez. He wanted me to drive.
I have this truck that has the long-haul
capacity. I can drive a long way. I can sleep
in the back. But I tell you what, I can only
limit it to 10 or 11 days because of my
personal situation.
....
And the final thing that is not there:
luggage. Where is his stuff?
I [(speaking as Maloney)] am going to—I
know that I have long-haul capabilities for 10
to 11 days. I go with this Clorox to Las
Vegas. I spend the night in Las Vegas. I get
a call[;] I got to go to El Centro. I have two
days in El Centro.
Where is his stuff?
....
Where is his stuff? Knowing it was going
to be 10 days—knowing that he could go up to
10 days, he has the sleeping accommodations.
....
Because remember what is missing,
among other things: luggage. If he didn’t
have any luggage—or if he had luggage, then
UNITED STATES V . MALONEY 39
the possibility would have been, I got to put it
somewhere. And he put it—where would he
put it? He would put it on the bed or on that
top shelf [where the marijuana was located].
....
Ladies and Gentlemen, the evidence here
shows the defendant knew exactly what he
was doing. That his versions of the events are
not true, they are not reasonable, they make no
sense. And that someone would not [sic] hire
him and then risk the discovery by just putting
[the marijuana] up on a shelf; when, if the
defendant had luggage, that is where he would
put it.
(Emphasis added.)
The government concedes that it never raised this
argument before its rebuttal summation. And the prosecutor
admitted to this court, in the following colloquy at oral
argument, that he “sandbagg[ed]” Maloney by withholding
the lack-of-luggage argument until rebuttal, when Maloney
had no opportunity to respond:
Judge Gilman: Alright, then why didn’t you
raise this [lack-of-luggage] argument in your
first argument on summation?
Assistant U.S. Attorney, Steve Miller:
Because I don’t believe that I needed to.
40 UNITED STATES V . MALONEY
Judge Gilman: Aren’t you sandbagging a
bit—to wait for rebuttal?
Miller: Yes I was.
Put simply, the government held back the lack-of-luggage
argument for rebuttal when the argument could have, and
should have, been made earlier in the trial. See United States
v. Taylor, 728 F.2d 930, 937 (7th Cir. 1984) (holding “that a
prosecutor cannot use rebuttal to put forth new arguments, but
is restricted to responding to the points made by the defense
counsel in closing argument”).
The majority excuses the government’s belated argument
by reasoning that defense counsel “opened the door to
argument addressing the credibility and believability of
Maloney and his story.” (Maj. Op. at 26) But the open-the-
door exception makes sense only if the door was
unexpectedly opened for the first time during the defendant’s
closing argument. See United States v. Rubinson, 543 F.2d
951, 966 (2d Cir. 1976) (holding that defense counsel, by
pointing out gaps in the government’s proof that the
government would “have been expected to negate
previously,” did not open the door to the government’s
reference to new facts on rebuttal that “it could have, but did
not, introduce at trial”). The government should not be able
to take advantage of this exception when it had ample notice
of the defendant’s credibility argument.
In this case, Maloney’s main defense throughout the trial
was to demonstrate his propensity for truthfulness. He called
two character witnesses to testify to just that. And we have
the government’s concession that its failure to raise the lack-
UNITED STATES V . MALONEY 41
of-luggage argument earlier was part of its strategy to
“sandbag” Maloney, not because it was surprised by any
contentions made by Maloney’s counsel in closing argument.
The lack-of-luggage argument, moreover, was improper
not just because it was raised for the first time on rebuttal. It
was also improper because, in contrast to the information
regarding the insurance certificate, drivers permit, trip log,
and cargo manifest (which the prosecutor also presented in his
rebuttal summation), the lack-of-luggage argument had no
foundation in the record. See United States v. Gray, 876 F.2d
1411, 1417 (9th Cir. 1989) (noting that “it is improper to base
closing arguments upon evidence not in the record”).
This crucial distinction is not addressed by the majority.
Instead, the majority concludes that, “even though defense
counsel’s closing argument did not expressly mention the date
of the insurance certificate, drivers permit, trip log, cargo
manifest, or luggage, defense counsel opened the door to that
information being presented in the prosecutor’s rebuttal
summation by basing its argument on the proposition that the
Government had not cast doubt on Maloney’s credibility and
not shown him to be a liar.” (Maj. Op. at 27) The majority
then flatly states that “[t]he specific content of the
prosecution’s arguments are red herrings” because “[d]efense
counsel opens the door to topics or issues, not specific facts.”
(Id. at 27-28)
But the case cited by the majority in support of that
statement, United States v. Lawson, 483 F.2d 535 (8th Cir.
1973), stands only for the proposition that, “[w]hen confined
to the evidence or reasonable inferences [drawn therefrom],
the arguments of counsel are not to be too narrowly limited.”
42 UNITED STATES V . MALONEY
Id. at 539 (internal quotation marks omitted). Lawson has
nothing to say about closing arguments that are not confined
to the evidence in the record or reasonable inferences drawn
therefrom. Under Ninth Circuit caselaw, those arguments are
improper, Gray, 876 F.2d at 1417, and the majority fails to
explain why a rebuttal argument fashioned from whole cloth
(regarding the lack of luggage) should be treated the same as
ones based on facts in the record (regarding the insurance
certificate, drivers permit, trip log, and cargo manifest).
A brief hypothetical example reveals the flaw in the
majority’s reasoning. Suppose that the prosecutor in this case
had mentioned for the first time during rebuttal, despite the
lack of supporting evidence, that Maloney had broken his
marriage vows and cheated on his tax returns. Under the
majority’s rule—that “defense counsel opens the door to
topics or issues, not specific facts”—this argument would
presumably be permissible because it bears on the “issue” of
Maloney’s credibility. But any such rebuttal argument would
surely be improper. I do not think that this court should adopt
a rule that, when taken to its logical conclusion, leads to such
obviously incorrect results.
The majority later concludes that “the district court did
not abuse its discretion in determining that the Government’s
rebuttal argument regarding Maloney’s lack of luggage was
a permissible inference from the record” because “the
prosecution’s inference that the trip necessitated luggage was
‘certainly within the bounds of fair advocacy.’” (Maj. Op. at
31-32 (quoting United States v. Blueford, 312 F.3d 962, 968
(9th Cir. 2002)) But the prosecutor did not simply infer that
the trip necessitated luggage; he also repeatedly stated that
Maloney did not in fact have any luggage—an argument that
UNITED STATES V . MALONEY 43
is based on absolutely no record evidence. I therefore fail to
see how “there was support for the inference that could be
drawn from facts in the record.” (Maj. Op. at 32 (internal
quotation marks omitted)) In sum, I believe that the district
court abused its discretion in denying Maloney an opportunity
to respond to the government’s improper lack-of-luggage
argument.
II. The district court’s error was not harmless
The majority reasons in the alternative that even if the
district court abused its discretion by prohibiting a surrebuttal
by Maloney’s counsel, that error was harmless. But I believe
the district court’s error warrants a new trial. When a district
court abuses its discretion, a new trial is warranted if “it is
more probable than not that the prosecutor’s conduct
materially affected the fairness of the trial.” United States v.
Reyes, 660 F.3d 454, 461 (9th Cir. 2011) (internal quotation
marks omitted).
This court’s decision in Hein v. Sullivan, 601 F.3d 897
(9th Cir. 2010), lists the following factors that we may
consider in determining whether a prosecutor’s improper
argument requires a new trial:
• whether the prosecutor misstated the
evidence;
• whether the judge admonished the jury to
disregard the improper argument;
• whether defense counsel opened the door
to the improper argument;
44 UNITED STATES V . MALONEY
• whether defense counsel had adequate
opportunity to rebut the argument; and
• the prominence of the argument in the
context of the entire trial and weight of the
evidence.
Id. at 912-13. Furthermore, an improper argument made
during rebuttal is all the more effective because the defense is
given no chance to refute it. See United States v. Sanchez,
659 F.3d 1252, 1261 (9th Cir. 2011) (“[T]he prosecutor
presented the [improper] ‘send a memo’ rhetoric during his
rebuttal, thus ensuring that it was the last argument the jury
heard before going to the jury room to deliberate. This timing
increased the risk that the inflammatory statement would
improperly influence the jurors.”).
Applying these principles to the facts of the present case,
I believe that the district court’s error is serious enough to
warrant a new trial. All the Hein factors indicate that the
prosecutor’s improper argument was likely to have adversely
affected the fairness of Maloney’s trial. Most of the reasons
why this is so have already been mentioned: (1) the lack-of-
luggage argument was made at the very end of the case;
(2) the prosecutor made the point several times and used a
scene from a well-known movie for emphasis; (3) the
prosecutor waited until rebuttal to bring up the argument even
though he was fully aware of Maloney’s defense theory much
earlier; (4) there was no evidence regarding the existence of
luggage in the record, despite the fact that Maloney testified
and the prosecutor could have asked him about any luggage
on cross-examination; (5) defense counsel moved for an
opportunity to respond, stating that Maloney would have
UNITED STATES V . MALONEY 45
testified that he in fact did have luggage with him prior to his
arrest; and (6) the judge did not admonish the jury to
disregard the argument about the absence of luggage. In
addition, during the jury’s deliberations, the jury sent a
question to the judge concerning the items in Maloney’s
possession at the time that he was arrested. This indicates
that the prosecutor’s lack-of-luggage argument had an impact
on the jury’s deliberations. Taken together, all these factors
show that the court’s error was not harmless.
The majority nevertheless concludes that the error was
harmless because “the evidence against Maloney was strong.”
(Maj. Op. at 33) In my view, the majority substantially
overestimates the strength of the government’s case. The case
turned on whether Maloney was deemed credible by the jury.
When a case comes “down to a battle over credibility,”
improper arguments are more likely to have an effect on the
fundamental fairness of the trial. See Sanchez, 659 F.3d at
1260 (“Because the sole issue in Sanchez’s case centered on
witness credibility, the [improper prosecutorial] statement
likely affected the jury’s ability to decide the case fairly.”).
The length of the jury’s deliberations and its request for
evidence showing the personal property possessed by
Maloney when he was arrested further underscore the
closeness of this case. Even though the trial’s testimony and
argument took the equivalent of only a day, the jury
deliberated an entire afternoon and the next morning before
reaching its verdict, which indicates that the verdict hung in
the balance. This suggests a far closer case than the majority
acknowledges.
46 UNITED STATES V . MALONEY
I am equally unpersuaded by the majority’s additional
reasons for why the district court’s error was harmless. First,
the majority notes that defense counsel, in his request for
surrebuttal, “stated that Maloney would have testified that he
had a bag, but he did not know what happened to it.” (Maj.
Op. at 34) The majority then determines that, “[i]f the jury
would have heard this argument, it would have been easy for
the jury to infer that Maloney would have put the bag in the
cab. Then when the bag went missing, he would have
searched for the bag in the cab and found the nine bricks of
marijuana on the top bunk.” (Maj. Op. at 34.)
The problem with this reasoning is that it rests on nothing
more than speculation. One could just as easily speculate
that, if Maloney had had the chance to explain why he did not
know what happened to the bag, he would have stated that he
was unaware that his bag was missing at the time that he was
arrested, or that he had the bag beside him on the passenger
seat when he was arrested and did not know what happened
to it afterward, or offered some other plausible explanation
for its disappearance that would have given him no reason to
search the sleeping quarters of the cab and spot the bricks of
marijuana. Indeed, the record indicates that Maloney had no
need to check the sleeping quarters of the cab because he slept
in hotel rooms, rather than inside the cab, while he was on the
road.
The majority also states that, “in light of the other
evidence against Maloney, and in the context of the other
arguments made by both counsel, we cannot conclude that the
luggage argument was prominent in the jury’s mind.” (Maj.
Op. at 35) I respectfully disagree. The prosecutor thought
enough of the lack-of-luggage argument to save it for
UNITED STATES V . MALONEY 47
“sandbagging” on rebuttal summation, with the argument
being not just a passing reference but a central feature. And
the jury was sufficiently interested in the argument to request
information regarding the items in Maloney’s possession at
the time of his arrest—and concerned enough about the
proper outcome of the case to spend a relatively long time
deliberating. I would therefore vacate the district court’s
judgment and remand for a new trial. For all the foregoing
reasons, I respectfully dissent.