United States v. Dorsey
677 F.3d 944
| 9th Cir. | 2012Background
- Dorsey led a July 2007–May 2008 conspiracy to traffic stolen vehicles by key-switching at auto dealerships and altering VINs for fraudulent registration.
- He pleaded guilty to Counts 1–20 (conspiracy, chop shop, vehicle trafficking) but contested the shooting-related charges (Counts 21–22) at trial.
- The government sought to admit Fomby and Harper testimony about Dorsey with a Glock before the shooting; a three-gun montage was also admitted.
- The jury found Dorsey guilty on Counts 21–22; the district court sentenced him to 48 years on Counts 1–21 and 18 years consecutive on Count 22, for a total lengthy term.
- On appeal, Dorsey challenged admissibility of gun-related testimony, alleged prosecutorial vouching, the detective’s “did it” remark, and the § 924(c)(1)(A) sentencing maximum.
- The opinion affirms the convictions and the sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Glock-style gun testimony (Fomby/Harper) | Fomby/Harper testimony shows Dorsey had a Glock and is probative of intent/means. | Testimony is improper Rule 404(b) propensity evidence. | Testimony was inextricably intertwined with charged crimes; admissible as relevant, not Rule 404(b). |
| Admissibility/weight of the three-gun montage identification | Montage supports Harper’s identification of the gun. | Montage could be unduly suggestive. | Identification procedure not impermissibly suggestive; admissible; weight for jury. |
| Prosecutor's vouching regarding witness Fomby’s credibility | Prosecutor can question truthfulness provisions of plea agreement to counter defense attack. | Vouching improper, risks improper inference about credibility. | Not plain error; statements were responsive to defense attack and did not improperly vouch. |
| Detective Suguro's comment that Dorsey “did it” | Comment reflects belief of guilt assisting prosecution. | Improper vouching requiring mistrial/new trial. | Harmless error; court promptly curative instruction; no reversal. |
| § 924(c)(1)(A) maximum sentence interpretation | Maximum should be life; district court correctly sentenced to 18 years. | Maximum should be ten years (mandatory minimum) under statute. | Maximum is life; rule of lenity not controlling; 18-year sentence permissible. |
Key Cases Cited
- United States v. Rizk, 660 F.3d 1125 (9th Cir. 2011) (standard for reviewing evidentiary exhibits and Rule 404(b))
- United States v. Soliman, 813 F.2d 277 (9th Cir. 1987) (inextricable intertwining of acts with charged crime)
- United States v. Williams, 989 F.2d 1061 (9th Cir. 1993) (inextricable intertwining; coherence of story)
- United States v. Vizcarra-Martinez, 66 F.3d 1006 (9th Cir. 1995) (two categories of “other act” evidence excepted from 404(b))
- United States v. Bagley, 772 F.2d 482 (9th Cir. 1985) (standard for prejudice vs. probative value of evidence)
- United States v. Monroe, 943 F.2d 1007 (9th Cir. 1991) (plea agreement and truthfulness testified to without vouching)
- United States v. Necoechea, 986 F.2d 1273 (9th Cir. 1993) (limits on prosecutorial vouching; curative instruction considerations)
- United States v. Sarkisian, 197 F.3d 966 (9th Cir. 1999) (harmless error standard for improper comments)
- United States v. Washington, 462 F.3d 1124 (9th Cir. 2006) (reaffirming curative instruction effectiveness)
- United States v. Dare, 425 F.3d 634 (9th Cir. 2005) (context of vouching and trial impact)
- O'Brien (Supreme Court citation), 130 S. Ct. 2169 (2010) (concurrence discussing § 924(c) maximum interpretations)