c.a. no. 10-10131 · 2013. 1. 21. · c.a. no. 10-10131 d. ct. no. cr 08-1329-phx-ros united states...

C.A. No. 10-10131

D. Ct. No. CR 08-1329-PHX-ROS

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAMIEN MIGUEL ZEPEDA,

Defendant-Appellant.

ON APPEAL FROM A JUDGMENT OF THE UNITED STATESDISTRICT COURT FOR THE DISTRICT OF ARIZONA

------------------------------------------------------------BRIEF OF APPELLEE

------------------------------------------------------------

ANN BIRMINGHAM SCHEEL JOAN G. RUFFENNACHActing United States Attorney Assistant U.S. AttorneyDistrict of Arizona Two Renaissance Square

40 North Central Avenue, Suite 1200RANDALL M. HOWE Phoenix, Arizona 85004-4408Deputy 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: 1 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 TribalEnrollment Form and the Ballistics Report Waives HisConfrontation Clause Challenge.. . . . . . . . . . . . . . . . . . . 32

B. The Trial Court Did Not Plainly Err by Failing to SuaSponte Give a Voluntary Intoxication Instruction. . . . . . 34

C. Defendant’s Convictions Should Not Be Reversed on theBasis of Vouching or Instructional Error. . . . . . . . . . . . . 38

D. The Prosecutor’s Closing Argument Did NotMisrepresent Crucial Evidence or Encourage aRetributive Blanket Verdict. . . . . . . . . . . . . . . . . . . . . . . 51

E. Defendant’s Counsel Was Not Ineffective. . . . . . . . . . . . 56

i


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, ConsecutiveSentences for the Four Firearms Counts, Regardless ofthe 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


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


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


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


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


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.

“CR” refers to the Clerk’s Record and is followed by a document number.1

“RT” refers to the Reporter’s Transcript of the trial and will be followed by pagenumbers. “Ex.” followed by a number refers to a trial exhibit. “ER” and “SER” referto the Excerpts and Supplemental Excerpts of Record, respectively, and will befollowed by Volume or page numbers.

1


IV. ISSUES PRESENTED

A. Whether Defendant’s Stipulation to the Admission of the Tribal EnrollmentForm and the Ballistics Report Waives His Confrontation Clause Challenge.

B. Whether the Trial Court Plainly Erred by Failing to Sua Sponte Give aVoluntary Intoxication Instruction.

C. Whether Defendant’s Convictions Should Be Reversed on the Basis OfVouching or Instructional Error.

D. Whether the Prosecutor’s Closing Argument Misrepresented Crucial Evidenceor 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 forthe Four Firearms Counts, Regardless of the Sentencing Guidelines.

2


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


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


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 firearms and to make sure nobody else was3

inside, then turned his attention to Dallas. (RT113-15;SER40-42.)

This section excludes testimony by Matthew or Jeremy; their testimony is set2

forth separately below.

Dallas did not have a gun that night. (RT135;SER52(Jennifer); RT264;3

SER105(Kassee);RT289;SER118(Stephanie);RT598;SER189 (Dallas).).

5


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


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

Doe called to ask if Dallas was willing to do a tattoo. (RT133;SER50.) Dallas4

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

Jane was 17 years old at the time of trial; her true name was redacted from the4

transcripts pursuant to 18 U.S.C. § 3509.

7


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


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


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


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. (RT374;ERII.) 5

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.”

Detective Solis documented evidence found at the scene. (Ex.15;SER236.) 5

The diagram she created indicates projectile paths and locations where officers foundblood, shell casings, ammunition fragments, and live rounds of 9-millimeterammunition as well as damage to the exterior walls, window sills, and garagewindows. (Ex.15;RT455-58;SER236,145-48.) She documented a blood trail on thepatio leading to the house, shotgun pellets and bullet fragments by the damagedstucco pillar, and 12-gauge Winchester shotgun casings in the back yard. (Ex.15,33;SER236;RT465-67,475;SER154-56,161.)

11


(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


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


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. (RT613-16;ERIII.) 6

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. (RT620,622;ERIII.) 7

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.)

He suffered a gunshot wound to his left ear. (RT637-38;SER193-94.)6

Officers found spent 12-gauge Winchester shotgun casings on the ground by7

the master bathroom. (RT468;SER157.) Bullet damage to the windowsill andexterior wall of the master bedroom indicated that shots were fired in an easterlydirection toward the back patio. (Ex.15;SER236;RT467-68;SER156-57.)

Matthew is 5’5” tall and weighs 180 to 190 pounds. (RT320;ERII.)8

14


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. (Ex.6;SER234;RT624-25;ERIII;RT677;SER196.) He sustained9

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.)

Officers found a “scuffle area” in the dirt approximately 18 to 20 feet from the9

southeast corner of the house, one live 9-millimeter round, shell casings, and anotherblood trail. (Ex.15,25;SER236-37;RT463-64,472;SER152-53,160.)

15


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


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


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


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


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


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


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


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


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


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


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


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 knowDallas and he had no previous problems with Dallas. He knew nothingabout Dallas or his family. Dallas just happened to be the unfortunateperson who was giving his ex-girlfriend a tattoo on her chest and thedefendant was angry and he was really angry and he wanted to dosomething about it. He really wanted to cause some hurt.

And as testified to by Jeremy, he wanted to do some dirt. We’regoing 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


Goofy and that is Dallas’s nickname. “Hey, how do I find Goofy? Where does Goofy live? We’re going to see Goofy.” The defendantsimply didn’t think he could handle Dallas Peters on his own becausethe defendant was not interested in talking that night. He didn’t want totalk to Dallas Peters. He was looking for a fight. He wasn’t looking fora fistfight. He wasn’t looking for a fair fight. He was looking to dosome 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 unarmedman and a house with women and children.

So the defendant and his brothers needed firepower. They werelooking for at least two guns. We heard about the defendant drinkingbeer. He’s smoking marijuana. He’s loaded with guns. He’s lookingfor a fight. And, remember, this all pertains to what we need to provefor an assault. Is this intentional conduct at this point? Absolutely. Isthis reckless conduct? Most assuredly. Drunk and high loaded withguns.

The defendant told his brothers what he wanted them to do. Now,while the brothers Zepeda tried to minimize some of what happened, andmaybe they didn’t know everything that was going to happen, but, again,remember, conspiracy, the co-conspirators don’t have to knoweverything. What the evidence did show is that there was an agreementto commit this crime. The brothers knew that the defendant wanted tofind Goofy. They knew that he was armed. Matthew saw the bulge inthe waistband. Jeremy heard the statements, “Hey, we’ve got the copsbehind us. I have heat on me. I want to go do some dirt. We’re goingto do some dirt,” and Jeremy actually saw both weapons as well. So thebrothers were continuing to go along with the plan and this is theconspiracy. . . .

(RT837-39;ERV.)(Emphasis added.)

28


On rebuttal, the prosecutor argued:

THE PROSECUTOR: I talked a little bit earlier about co-conspiratorsand principals and aiding and abetting liability and I would submit toyou, ladies and gentlemen of the jury, when you have Matthew firingthat shotgun at the back porch at what he believes are several people onthat back porch, that is a dangerous weapon. He has committed thecrimes of assault with a dangerous weapon against XXXX and Dallas. And the defendant was an aider and abettor and he was a conspirator inthat.

We also know the defendant was a principal. We know thedefendant was, just as in my analogy the bank robber pointing the gunat the teller, he was a principal. We know that in his home he hadmatching ammunition for both guns. We know that seven people gavetestimony that he, in fact, had a gun and we know that he talked aboutdoing some dirt that night. . .

(RT865;ERV.)(Emphasis added.)

29


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


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


VII. ARGUMENTS

A. Defendant’s Stipulation to the Admission of the Tribal EnrollmentForm and the Ballistics Report Waives His Confrontation ClauseChallenge.

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.” United States v. McGregor, 529 F.2d 928, 931 (9th Cir.10

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

The stipulation to these facts, in light of Defendant’s trial testimony, “was a10

reasonable and competent trial tactic for which counsel cannot be faulted” and doesnot demonstrate ineffective assistance of counsel. Butcher v. Marquez, 758 F.2d 373,378 (9th Cir. 1985).

32


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


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 Givea 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. United States v. Rudberg, 122 F.3d 1199, 1206 (9th Cir. 1997). 12

See Addendum for the full text of the trial judge’s standing order requiring11

joint proposed instructions and verdict forms.

The plain error standard of review applies to all of Defendant’s arguments12

unless otherwise expressly indicated; it therefore will not be repeated in the(continued...)

34


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

(...continued)12

succeeding argument sections.

35


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. Entitlement to a13

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

“Defense counsel need not request instructions inconsistent with its trial13

theory.” Butcher, 758 F.2d at 377.

36


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


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 ofVouching 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


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


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 testifyingI told them I wasn’t and the proscuter said that she is going 2 do everything in her power 2 see that I get the 10 year max for purgery on myplea. But I said I will what their trying 2 find out is if you had a gunwhen 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 ifyou gave me the shot gun shells for the gun the first time I said ya ButI told her I lied only so I could get out or get less time. And you told me2 fier once I hear gun shots but that what they say but tell your lawer itsthe other way that after you got in a fight with him because in Jeremy’sstatement 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 theirwere still shoting. That’s what I told them. And that I was just lieingabout all the other stuff but they don’t want your lawyer 2 find outbecause they would throw me off the stan but I told my lawyer and the

40


proscuter I was lieing about everything 2 get less time or 2 get set freebut they told me not 2 say that I was lieing 2 get less time in the courtbecause the Judge would think I’m bullshiting. But let your lawyerknow all this that I said and their just getting shit twisted because theytold 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


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 heanswered those questions in an evasive sort of way indicated he mightnot be telling the truth. But that is for the jury to decide, not for anyoneelse in the courtroom but the jury. He now has an attorney. He hasapparently spent a lot of time with the attorney and the U.S. Attorney’sOffice, and the U.S. Attorney’s Office has decided in good faith thatthey 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


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


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


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


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


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


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 juryto have a lower opinion of the credibility of the witness, this likely aidedthe Defendant’s case more than it prejudiced it. Matthew Zepeda wascalled to testify as a material witness for the government. When theGovernment declared that Matthew was perjuring himself, it underminedthe credibility of its own witness. Matthew Zepeda’s testimony, ifbelieved by the jury, substantially incriminated the Defendant. As anexample, the witness stated that it was Defendant’s idea to drive to thehome of the alleged victims, that he saw a lump by Defendant’s waistthat could have been a gun, that Defendant told him how to load it, andthat Defendant instructed him to shoot the shotgun if somethinghappened. . . .

(CR130;SER14-16.)

48


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


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


D. The Prosecutor’s Closing Argument Did Not Misrepresent CrucialEvidence 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.” The14

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

The statement appears in an FBI report of Jeremy’s November 16, 2008,14

interview, provided to Defendant in discovery.

51


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


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


(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


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


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


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


a gun or of his specific intent to do bodily harm. His argument ignores the record. 15

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

A violation of 18 U.S.C. § 113(a)(3) requires proof of (1) an assault, (2) the15

use of a dangerous weapon, and (3) the intent to do bodily harm. Rocha, 598 F.3d at1157.

58


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


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


H. 18 U.S.C. § 924(c) Mandates Enhanced, Consecutive Sentences forthe 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


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


VIII. CONCLUSION

For the foregoing reasons, the judgment of conviction and sentence should be

affirmed.

ANN BIRMINGHAM SCHEELActing United States AttorneyDistrict of Arizona

RANDALL M. HOWEDeputy Appellate Chief

s/ Joan G. Ruffennach JOAN G. RUFFENNACHAssistant U.S. Attorney

63


IX. STATEMENT OF RELATED CASES

To the knowledge of counsel, there are no related cases pending.

64


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 incross-appeals must not exceed 14,000 words; reply briefs must not exceed7,000 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 thirdbriefs filed in cross-appeals must not exceed 14,000 words or 1,300 linesof 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 ofFed. 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 briefof 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 byseparate 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


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


XII. ADDENDUM TO BRIEF OF APPELLEE

See following pages for Standing Orderof Judge Silver, Roslyn O., regardingJury Instructions.

67


c.a. no. 10-10131 · 2013. 1. 21. · c.a. no. 10-10131 d. ct. no. cr 08-1329-phx-ros united states...

Documents