United States v. Newhoff
627 F.3d 1163
| 9th Cir. | 2010Background
- Newhoff was convicted of felon in possession of a firearm and possession of a stolen firearm; burglary related to the pistol occurred July 4.
- Trial featured competing accounts; Newhoff stipulated to prior felony, the pistol crossing state lines, and that it was stolen.
- Key issue at trial was whether Newhoff knowingly possessed the pistol.
- During deliberations, jurors requested a transcript of Officer Cochran’s testimony; the judge proposed readback in open court with counsel present.
- The judge read Cochran’s entire testimony aloud without giving a specific admonition against undue emphasis; counsel did not object.
- Nine minutes after the readback, the jury found Newhoff guilty on the charged counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether readback without admonition was plain error | Newhoff argues readback unduly emphasized testimony, requiring reversal | Newhoff contends error but judge’s discretion and lack of objection negate reversal | Plain error; but no reversal because rights not substantially affected |
| Whether the readback affected substantial rights under Rule 52(b) | Undue emphasis could affect the verdict and fairness | No demonstrable impact on substantial rights given total evidence | Did not affect substantial rights; affirmed |
| Whether the sentencing enhancement for possessing the pistol in connection with a burglary was proved by a preponderance of the evidence | No direct eyewitness testimony that Newhoff found or took the pistol during the burglary | Inference from sales efforts and conduct supports finding of finding and taking | Supported by preponderance of the evidence; affirmed |
Key Cases Cited
- United States v. Richard, 504 F.3d 1109 (9th Cir. 2007) (readback risk of undue emphasis and need for open-court precautions)
- United States v. Binder, 769 F.2d 595 (9th Cir. 1985) (readback disfavored when it unduly emphasizes testimony)
- United States v. Hernandez, 27 F.3d 1403 (9th Cir. 1994) (rehearing testimony in open court with safeguards preferred)
- United States v. Olano, 507 U.S. 725 (1993) (plain-error standard for Rule 52(b) review)
- United States v. Recio, 371 F.3d 1093 (9th Cir. 2004) (guidance on evaluating errors affecting proceedings)
- United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc burden on government for upward adjustments)
- United States v. King, 552 F.2d 833 (9th Cir. 1976) (illustrates consideration of whether error affects substantial rights)