United States v. Stevens

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 1, 2024
• Docket: 23-300
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 1 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-300 D.C. No. Plaintiff - Appellee, 1:19-cr-02038-SAB-1 v. MEMORANDUM* JORDAN EVERETT STEVENS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Washington Stanley Allen Bastian, District Judge, Presiding

Argued and Submitted July 9, 2024 Seattle, Washington

Before: HAWKINS, CLIFTON, and BRESS, Circuit Judges.

Defendant Jordan Stevens (“Stevens”) brings this direct appeal following his

conviction by a jury for first-degree murder and discharging a firearm during and in

relation to a crime of violence. He alleges various errors occurred at trial that

individually or cumulatively require a new trial. We affirm his conviction.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. I.

Two of Stevens’ claims involve an improper comment Agent Barefoot made

about Stevens’ guilt when explaining why he had focused his investigation on

Stevens versus witness McCormack. See United States v. Lockett, 919 F.2d 585,

590 (9th Cir. 1990) (“A witness is not permitted to give a direct opinion about the

defendant’s guilt or innocence.”). Examining counsel did not immediately object;

however, defense counsel submitted a motion overnight and the district court agreed

that striking the agent’s testimony and issuing a limiting instruction was proper. This

was done immediately the following morning before any more testimony was

introduced, making it clear the jury was to disregard the agent’s statement and that

only the jury could decide whether Stevens had killed the victim. This instruction

was clear, direct, and effective, and juries are presumed to follow instructions. See

United States v. Morris, 827 F.2d 1348, 1351 (9th Cir. 1987); United States v. Reyes,

660 F.3d 454, 468 (9th Cir. 2011).

Nor was trial counsel ineffective for failing to immediately object to the

improper opinion testimony and or by withdrawing the motion for mistrial.

Although it is unusual to address a claim of ineffective assistance of counsel on

direct appeal, we may do so if the record is sufficiently developed, as it is here.

United States v. Rahman, 642 F.3d 1257, 1259‒60 (9th Cir. 2011). Stevens

submitted a motion for new trial, arguing his trial counsel had been ineffective

2 23-300 because she had inadvertently taken the wrong medication and was experiencing a

panic attack while cross-examining Agent Barefoot; this prevented her from

immediately objecting to his improper testimony. To succeed on a claim of

ineffective assistance of counsel, Stevens had to show both “that counsel’s

performance was deficient” and “that the deficient performance prejudiced the

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). We agree with the

district court’s conclusion that counsel’s cross-examination was “skillful and not

professionally unreasonable” and that, in any event, there was no prejudice because

the defense received the remedy it requested when the court struck the testimony and

issued the curative instruction. The minimal delay in issuing the instruction did not

prejudice Stevens. There was also no prejudice in withdrawing the mistrial motion,

as the district court expressly indicated it would not have granted the motion for

mistrial in any event.

II.

Stevens also contends the district court violated his Sixth Amendment right to

confront witnesses by improperly curtailing his cross-examination of two witnesses.

Where, as here, the defendant challenges “a limitation on the scope of questioning

within a given area,” we review for an abuse of discretion. United States v. Larson,

495 F.3d 1094, 1101 (9th Cir. 2007).

3 23-300 With respect to eyewitness Tainewasher, the court allowed defense to inquire

whether Tainewasher blamed the victim for her brother’s death and also whether she

expected any consideration in a pending federal case in exchange for her

testimony. It was not an abuse of discretion to limit additional questions regarding

the circumstances of Tainewasher’s brother’s death because it would likely confuse

the jury and was not relevant to whether Tainewasher had any personal bias in

testifying against Stevens. See United States v. Lehman, 756 F.2d 725, 728 (9th Cir.

1985). It was also not an abuse of discretion to limit additional questioning about

Tainewasher receiving consideration in return for testifying, as she had already been

asked and answered no, and there was no pending agreement with the government

at that time. See United States v. Scott, 642 F.3d 791, 796‒97 (9th Cir. 2011).

With respect to Agent Barefoot, the court allowed extensive questioning about

the relationship between Barefoot and witness McCormack, including how many

phone calls she made from the jail to him, often not about the case. The court limited

only the introduction of a specific letter to Barefoot from McCormack because it

contained personal information about her and her children. The court did, however,

allow examination about relevant details of the letter, such as the use of first names

and nicknames that indicated an “unusual and very close” relationship between the

two. This was sufficient for the defense to adequately explore the issue of Agent

Barefoot’s bias. See Larson, 495 F.3d at 1103‒04.

4 23-300 III.

The district court made a single observation while making a ruling in favor of

the defense and overruling the government’s relevance objection, noting defense had

“been doing that [line of questioning] for a day and a half now.” A new trial is

required only if the record “leaves the reviewing court with an abiding impression

that the judge’s remarks and questioning of witnesses projected to the jury an

appearance of advocacy or partiality.” United States v. Mostella, 802 F.2d 358, 361

(9th Cir. 1986). The court allowed questioning on this matter to continue and did

not create any impression of partiality to the United States.

IV.

The district court did not plainly err by allowing testimony regarding Stevens’

character. As discussed above, Agent Barefoot was asked to explain why he focused

on Stevens as the shooter versus McCormack, and, after the stricken testimony,

Agent Barefoot clarified he was familiar with Stevens prior to the case and knew

him to be “dangerous.” However, the statement was not introduced for the improper

purpose of showing that Stevens acted in conformity with that character, see Fed. R.

Evid. 404(a), but only to explain why Agent Barefoot focused on Stevens versus

another suspect and to rebut the defense’s suggestion that Barefoot had been

motivated by bias in favor of McCormack. Furthermore, even if it were error to

allow this testimony, any error was not clear or obvious and was also unlikely to

5 23-300 affect Stevens’ substantial rights in light of the significant other evidence of guilt

presented by two witnesses who were present at the shooting. United States v.

Hayat, 710 F.3d 875, 895 (9th Cir. 2013).1

For the foregoing reasons, Stevens’ conviction is AFFIRMED.

1 We also reject Stevens’ claim that cumulative error requires a new trial. The only error was Officer Barefoot’s improper testimony about Stevens’ guilt, which was corrected by striking the testimony and issuing a curative instruction. A new trial is not required.

6 23-300