Jeffrey Green v. Allstate Ins. Co.
15-35335
| 9th Cir. | Jun 6, 2017Background
- Rivera was tried for assaulting a Border Patrol agent during an attempted illegal reentry; he did not contest the reentry charge and disputed the assault facts.
- At trial witnesses disagreed: Rivera said he pivoted and immediately fell when trying to run back; agents testified Rivera charged straight ahead and collided with Agent Ambriz.
- Photos showed Rivera with a head cut and blood on the trail; Agent Gillespie testified that Rivera’s blood was on rocks “up the trail” from where Agent Ambriz first encountered the group.
- During sidebar before closing the prosecutor sought to recall Agent Ambriz to show where he entered the trail, conceding that location had not been clearly established in the record; the court offered to reopen the case but the prosecutor declined.
- In rebuttal closing the prosecutor used a sketched map and argued the bloody rocks were located further up the trail than where Ambriz first stepped out, asserting physical evidence contradicted Rivera’s account; defense objected that this misstated the evidence and exceeded rebuttal scope.
- The district court allowed the rebuttal argument, instructed jurors that lawyers’ statements are not evidence, denied a new-trial motion, and found any prosecutorial misconduct harmless; the panel majority affirmed, with a dissent finding misconduct and non-harmless error.
Issues
| Issue | Plaintiff's Argument (Rivera) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether prosecutor misstated the evidence by arguing bloody rocks were further up the trail than where Ambriz first encountered Rivera | The prosecution lacked an evidentiary basis; Agent Gillespie’s testimony was ambiguous and did not establish the location; argument misstated evidence | Agent Gillespie testified the bloody rocks were up the trail from where Ambriz first encountered Rivera, supporting the argument | Majority: No misconduct—agent testimony provided adequate support; Dissent: Misstatement (record ambiguous) |
| Whether raising the blood-on-rocks argument for the first time in rebuttal sandbagged Rivera and exceeded proper rebuttal scope | Rebuttal introduced a new factual theory the defense had no fair opportunity to counter; prosecutor had earlier conceded the location wasn’t in the record | Rebuttal properly responded to defense closing that Rivera’s account (turning to run) warranted explanation; government relied on prior testimony | Majority: Not sandbagging—rebuttal permissible; Dissent: It exceeded rebuttal and unfairly surprised defense |
| Whether any prosecutorial error was harmless | Argument likely influenced jurors in a close credibility case; prosecutor’s late map increased risk of prejudice | District court and majority held any misconduct was harmless given instructions and evidence | Majority: Harmless; Dissent: Not harmless—government did not meet burden to prove no material effect on verdict |
Key Cases Cited
- United States v. Sayetsitty, 107 F.3d 1405 (9th Cir.) (prosecutor may argue reasonable inferences supported by testimony)
- United States v. Bagley, 772 F.2d 482 (9th Cir.) (scope of permissible rebuttal argument)
- United States v. Gray, 876 F.2d 1411 (9th Cir.) (abuse-of-discretion review for rebuttal scope)
- Arizona v. Fulminante, 499 U.S. 279 (U.S.) (harmless-error review and burden on government)
- United States v. Rubinson, 543 F.2d 951 (2d Cir.) (limitations on using rebuttal to introduce new facts)
- United States v. Kojayan, 8 F.3d 1315 (9th Cir.) (prosecutorial statements can materially affect jury verdict)