United States v. David Crosby

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 6, 2018
• Docket: 17-30119
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 6 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-30119

Plaintiff-Appellee, D.C. No. 1:16-cr-00009-SPW-1

v. MEMORANDUM* DAVID CROSBY,

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Argued and Submitted August 27, 2018 Seattle, Washington

Before: HAWKINS, McKEOWN, and W. FLETCHER, Circuit Judges.

David Crosby appeals his jury trial conviction for failure to register as a sex-

offender, in violation of 18 U.S.C. § 2250. We have jurisdiction under 28 U.S.C. §

1291, and affirm.

Crosby contends that the prosecutor engaged in improper witness vouching

during closing and rebuttal arguments. Because Crosby did not object to the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. prosecutor’s statements during the trial, “we review under the more deferential plain

error standard.” See United States v. Ruiz, 710 F.3d 1077, 1082 (9th Cir. 2013)

(quoting United States v. Wright, 625 F.3d 583, 610 (9th Cir. 2010)).

The prosecutor’s statement that the government’s witness, Stephanie Harman,

had no “dog in the fight” and submission that it was reasonable to believe Ms.

Harman testified truthfully did not cross the line. We have previously held that

statements, analogous to the prosecutor’s statement here, regarding a witness’

motive to lie did not amount to vouching. See United States v. Wilkes, 662 F.3d 524,

540 (9th Cir. 2011); United States v. Nash, 115 F.3d 1431, 1439 (9th Cir. 1997).

The prosecutor’s submission that it was reasonable to believe Ms. Harman

testified truthfully, viewed in context, was an argument of “inference from evidence

in the record” rather than vouching. United States v. Necoechea, 986 F.2d 1273,

1279 (9th Cir. 1993). A prosecutor has “considerable leeway” to argue reasonable

inferences from the evidence, United States v. Tucker, 641 F.3d 1110, 1120 (9th Cir.

2011) (citation omitted), and the statements here did not place “[the government’s]

own prestige behind the witness” or “indicat[e] that extrinsic information not

presented in court support[ed] the witness’ testimony,” United States v. Simtob, 901

F.2d 799, 805 (9th Cir. 1990).

Even if vouching did occur, Crosby has not “demonstrate[d] a reasonable

probability that he wouldn’t have been found guilty had the error not occurred.” See

2 17-30119 United States v. Rangel-Guzman, 752 F.3d 1222, 1225–26 (9th Cir. 2014). The

record demonstrates that (1) the government offered sufficient evidence aside from

Ms. Harman’s testimony; (2) the prosecutor’s statements followed the defense’s

attack on Ms. Harman’s testimony; and (3) the jury was properly instructed on its

duty to evaluate witness credibility and the appropriate considerations for doing so.

AFFIRMED.

3 17-30119