United States v. Rex G. Endicott, United States of America v. John Stuart Robertson

America, STATES UNITED

Plaintiff/Appellee, ENDICOTT, G.

Rex

Defendant/Appellant. America,

UNITED STATES

Plaintiff/Appellee, ROBERTSON,

John Stuart

Defendant/Appellant. 85-3128, 85-3129.

Nos. Appeals,

United States Court of

Ninth Circuit.

Argued Aug. and Submitted 1986.

Decided Oct. Anderson,

Gene S. Atty., Andy U.S. Hamilton, Seattle, Atty., Wash., Asst. U.S. for plaintiff/appellee. Lundin, Seattle,

John Kellogg, Terrence Wash., for defendants/appellants. POOLE, BEEZER, Before NORRIS Judges. Circuit failing POOLE, comply transfer tax Judge: Circuit (Counts IV); provisions II and fail- transfer codefendants, Rex G. Endicott Two concerning proper ure to maintain records Robertson, their appeal S. convictions John (Counts V); pistols the sales of two III and receive, possess, illegally conspiracy for (Count illegal possession machinegun of a import sub- firearms transfer and VI) illegal possession of a silencer firearms laws. federal stantive violations (Count VII). separately. appeal each deal with We REX G. ENDICOTT DISCUSSION challenges Endicott his convictions PROCEEDINGS BELOW PACTS AND (1) following grounds: on the sentences November, Drug Enforce- In instructing jury district court erred (“DEA”) began Administration un- an ment a if may a device be silencer even investigation of the Bandido Mo- dercover unassembled; (2) evidence seized in the of torcycle gang suspected violations February 21st search of his home should investigation The narcotics laws. federal suppressed have because the search been possible subsequently focused on violations misrepresenta- affidavit warrant contained A DEA of firearms laws. infor- federal omissions; (3) tions and the district court Endicott, gun a licensed implicated mant sentencing Endi- abused its discretion of running a firearms business out dealer cott; (4) the district erred instruct- home, potential illegal source of as a ing that a firearms dealer must investigation DEA culminated guns. The personal record the transfers of firearms by illegal machinegun in the transfer of a (5) evidence was insufficient April on Endicott to the informant 1984. support convictions on Counts II and IV. Alcohol, Bureau of Tobacco (“BATF”) began separate a and Firearms I. The Silencer Instruction.

investigation suspected of firearms viola- investigation, tions. In the course of this Unassembled silencers were found Jones, informant, Dick pur- an undercover in appellant’s attic in the course of the machinegun two chased a undoc- 21st February search. district court from pistols umented Endicott. may jury: “[y]ou instructed the find that a although parts device is a silencer are 21, 1985, February agents federal On assembled, if beyond find you a reason appellant’s executed a search warrant at component parts able doubt that of its all Bellingham, Washington, residence in seiz- only are a readily and a available brief ing machinegun a and undocumented fire- required effort is minimal assemble the arms. This warrant was issued on the design complete by nature reason BATF Special basis of the affidavit of parts.” and location of the Endicott con Agent Robert Hausken. Hausken’s affida- this Jones, tends that instruction was error be provided drew information vit on statutory cause the definition of a silencer preserved taped is re- some component include does not unassembled cordings of conversations between Jones parts. responds The Government that this pretrial a mo- and Endicott. Endicott made interpretation of definition silencer of a suppress tion to the evidence obtained Congressional is supported both intent warrant. After the execution of search and common sense. evidentiary hearing, the district court denied motion. in- As district court’s instruction statute, interpretation on seven counts volved the of a it

Endicott was convicted law, presents question re- conspiracy a a which we twelve count indictment: receive, possess, Douglass, im- illegally transfer and view de novo. United States v. (Count (9th Cir.1986); I); knowingly 780 F.2d port firearms trans- Wilson, n. 2 ferring paying machineguns two without States v. Cir.1983), pose designed but is to facilitate the kill- (1984). 104 S.Ct. 79 L.Ed.2d 703 ing of another or to effectuate some oth- pernicious purpose er by reducing the Act, The National Firearms 26 U.S.C. weapon, noise level of a fired [citation 5845(a), provides: “The term ‘firearm’ § * * * interpretation, Under Luce’s omitted] a (7) means or a muffler silencer for person legally could carry a silencer in any firearm whether or not such firearm parts two though unassembled even included this definition.” within Endicott parts joined two could together be within Congress if had intended a few seconds used to silence a lethal definition of a silencer include its unas- weapon. This clearly would frustrate parts, sembled it component would so have Congress’ intent control the use of points defined it in the He statute. out ‘gangster-type’ devices.” 5845(b)expands that 26 U.S.C. the defini- § machinegun tion of by providing that Luce, persuaded F.2d at We are * * * ‘machinegun’ term “[t]he analysis, [includes] this accordingly hold that any parts combination of from a the district court’s instruction was correct. machinegun can be if parts assembled such Suppression II. of Evidence. possession in are or under the control pretrial Endicott contends that his person.” 5845(b). of a 26 U.S.C. He § to suppress motion evidence seized in Congress that since did use not search of his grant home should phraseology in have been similar the definition of a silencer, ed because of material omissions and it is reasonable conclude that mis representations Congress Agent did not intend a in- Hausken’s silencer to search warrant affidavit. parts. clude unassembled impression Delaware, 154, This issue is one In of first Franks v. 438 U.S. 98 2674, The (1978), our circuit. First S.Ct. 57 Circuit addressed L.Ed.2d 667 the Su- Luce, preme this issue in United v. 726 States Court set forth procedure (1st Cir.1984). Luce, F.2d 47 challenging defendant validity of a search war- challenged possessing his conviction for rant for and misrepresentations. omissions transferring silencer, an unregistered A defendant make pre- must a substantial putting argument forward the Endicott liminary showing that the in sup- affidavits presses here. The given trial court had port warrant intentionally contained jury the same instruction as the district recklessly or false material statements. If gave court case at bar. First The made, preliminary showing is the court rejected Circuit defendant’s claim that this hearing must hold then a to examine the instruction error “agree[d] if, affidavits. court must see exclud- Congress the district that clearly court in- ing misrepresentations, probable cause interpretation” tended this common sense would exist on the basis remaining of the statutory definition. Id. at 49. If, exclusions, information. without probable lacking, cause is the search war- Congress clarified the reach of Na- rant is defective and the evidence seized 1954, emphasizing tional Firearms Act in is thereunder excluded. Franks v. Del- directed, it antique guns that was not at 154, aware, 2674, 438 U.S. 98 S.Ct. 57 collectors, and their but at “such modern * * * (1978). 667 L.Ed.2d weapons and lethal as could be used readily efficiently by criminals or case, In this defendant Endicott was af- gangsters.” H.R.Rep. 1337, No. 83rd opportunity prelimi- forded the amake Sess., Cong., (1954) 2nd reprinted in 1954 nary showing of intentional or reckless ma- Cong. 4025, U.S.Code & Ad.News falsity terial evidentiary hearing. at an As the First Circuit stated Luce: The district court found no evidence that “A person intelligence of common intentionally, would Hausken or with reckless dis- recognize a readily easily regard, as- misrepresented any or omitted sembled silencer serves no pur- improperly innocent facts in order to secure search 510 Cir.), 1012, (9th 1014 cert.

warrant, “although Chiago, 699 F.2d stating, the affidavits 171, 854, may denied, mi- 104 78 Agent have contained 464 U.S. S.Ct. Hausken concerning (1983). Further, the date disparity “a nor errors or omissions L.Ed.2d 154 and/or the excul- alleged imposed upon conversations codefend in the sentences Endi- pating sentencing made defendant statements ants does not indicate that cott, essentially ac- were the affidavits or that judge his discretion has abused presentation of the information curate v. required.” is United States Gar review Having affiant.” concluded Cir.1982). known to the rett, (9th A 652 680 F.2d any intentional failed to show that Endicott imposed by a federal district sentence any falsity disregard, and or reckless limits, general judge, statutory if within (i.e., “minor” not or omissions were errors ly subject to review. States v. United material), had no occasion to re- the court 443, 446-47, Tucker, 92 S.Ct. probable cause. examine the issue of (1972), 591, 30 L.Ed.2d 592 See also Unit (9th Hall, 778 F.2d ed States v. court’s factual the district We review Cir.1985); Sand, United States falsity or findings to intentional reckless as (9th Cir.1976), “clearly erroneous” disregard under the L.Ed.2d 553 U.S. 97 S.Ct. 52(a); standard. Fed.R.Civ.P. (1977). Ritter, F.2d Cir.1985). infringement Absent an of defend transcripts of Appellant asserts trial, right to stand ant’s constitutional informant taped conversations between required is not to ex district Endicott, available, presumably Jones sentences, disparate plain the basis for reports the meet- along with BATF about limits, statutory imposed upon sim within Hausken, Agent ings, to demonstrate Hall, ilar codefendants. 778 F.2d at 1428- disregard falsity intentional or reckless of (limiting Capriola, United States v. reviewing After Hausken’s affidavit. (9th Cir.1976), required F.2d 319 which excerpts transcripts provided by ap- of imposition disparate explanation for the of affidavit and the mo- pellant, Hausken’s codefendants, upon situations sentences to below, that tions made we conclude right defendant’s constitutional to where finding clearly district court’s was not erro- Here, implicated). trial all the stand is neous, and therefore we also do not reach imposed upon the codefendants sentences probable cause. the issue of statutory are within the limits and no de right implicated. fendant's to stand trial is III. Endicott’s Sentence. Given the limited nature review this The district court sentenced Endi issue, find the district did not we I, years jail in two cott to two Count abuse his discretion. through II run years on Counts VI to con I, a currently with the sentence on Count IV. The Transfer of Firearms Instruction. VII, and suspended sentence on Count challenges Endicott his conviction codefendant, years probation. A three appropri knowing for the failure to make Warner, given in Bernard six months regarding release) ate entries and maintain records (with jail a recommended work pistols, in violation of 18 the sale of two probation. Endicott contends years five 922(m). that dis U.S.C. He contends represent an abuse of that his sentences § instructing jury, culpa more trict court erred discretion because Warner was he, licensed firearms dealer must record ble than and had been convicted “[a] This includes the felony prior had no the sales of all firearms. 1972 while Endicott originally of a firearm that was ac criminal record. sale quired personal use.” It within the discretion of the is interpretation of a challenge This to the impose disparate sentences trial court to question which we re- is a of law upon codefendants. United States v. statute 1475; Douglass, view de novo. 780 F.2d at ness inventory, since the they moment Wilson, sale, 720 F.2d at 609 n. 2. were offered for the federal law applied. holding This is without doubt 922(m)provides perti 18 U.S.C. § correct; otherwise, the regula- federal part: any “It shall nent be unlawful for * * * * * * altogether tions could be circumvented knowingly licensed dealer by dealers who were slick enough to in, any entry any make false to fail to make “personal establish collections” for other- in, appropriate entry properly or to fail to wise unlawful sales. maintain, any required record which he is Id. keep pursuant chapter 923 of this § regulations promulgated or thereunder.” legislative history of the Omnibus recording Endicott contends the require Crime Control and Safe speaks Streets Act apply only ments to a dealer’s commercial of the need to control the flow of firearms: inventory, kept not to firearms in the deal ready availability; is, “The ease with personal er’s collection. This issue one any person anonymously can acquire * * * impression of first in this circuit. How firearms is a matter of serious na- ever, both the First and Seventh Circuits tional S.Rep. concern.” No. 90th question. have dealt Cong., Sess., 2nd reprinted in 1968 U.S. Cong. Code & Ad.News 2114. Al- Scherer,

In United States v. though legislative history states (7th Cir.1975), U.S. Congress did not intend unnecessary regu- 315, (1976), 96 S.Ct. L.Ed.2d lation or personal hindrance of the owner- upheld the Seventh Circuit defendant’s con ship guns, this interest is altered violating viction for when registration firearms gun, owner sells the recording requirements, as Endicott rejecting did agree here. We with the argument that he First required was not Circuit’s analysis; Congress’ it furthers regarding acquisition maintain records intent personal illegal trafficking curtail or sale of his firearms. The firearms. Ac- cordingly, “In the we wrote: instant case it is hold that the district immaterial court’s weapons whether the instruction originally sold were to the was not error. acquired personal for Scherer’s use or for V. purposes. Sufficiency of the They part

business became a Evidence. of his inventory they business the moment challenges Endicott his conviction placed were on the market for resale.” Id. for failure to comply pro with the transfer at 374. 5812(a) visions of 26 U.S.C. and failure to § Currier, pay

In United States 621 F.2d 7 transfer taxes under 26 U.S.C. (1st Cir.1980), Currier, 5811(a) failing convicted of transferring the course of two § to maintain firearms transaction machineguns. prove records appellant’s To viola sales, respect challenged with the dis- provisions, tion of the transfer and tax jury trict court’s instruction to the that the presented Government the testimony of “ regulations applied federal firearms ‘even Dobbs, supervisor Deron coordinator of the though part the firearm is of the dealer’s National Registration Firearms and Trans * * personal firearms collection Id. fer Washington, Record in Relying D.C. Citing support, at 9. for Scherer the dis- Stout, on United States v. 667 F.2d 1347 gave trict court this instruction based on (11th Cir.1982), Endicott that Dobbs reading of the statute. The First Cir- competent testify appel was not as to cuit, affirming, stated: nonpayment lant’s of tax because tax appel- stamps We see no merit whatsoever to are issued the District Director argument point. on Service, lant’s The case of the Internal Revenue not upon by the Washington Stout, relied district court is direct- BATF’s office. In de ly point and held that it is immaterial nonpayment fendant’s convictionfor of tax whether firearms sold a dealer were es was reversed BATF because the custodi part originally personal certify of his or busi- an could not that the tax had not paid. This was on account of two testified that afternoon after receiving been a (1) grant problems immunity with the BATF’s records: of from the Government. payment since IRS handled the of tax and The district court denied Robertson’s mo- stamps affixing applications, of tax judgment acquittal tions for or new trial necessarily BATF’s records did not reflect judgment. and for arrest of appeal, On he taxes, (2) and BATF nonpayment did (1) prosecutorial contends: misconduct pending keep applications. records of trial, (2) deny served to him a fair currently testified that his office Dobbs provide Government failed to Brady mate- stamps and maintains records affixes rial, (3) the subject district court lacked personally and that he had checked those cause, (4) jurisdiction matter over the records, finding appellant had not com- the evidence support was insufficient to plied statutory provisions. Ac- guilty. verdict of cording application testimony, proce- to his changed way dures have in such a as to DISCUSSION problems presented

eliminate the in Stout. object Endicott did not to Dobbs’ testimo- I. Prosecutorial Misconduct. offered, ny when it was but first raised his Robertson prose- advances two claims of challenge sufficiency evidence cutorial misconduct: the Government im- judgment acquittal his motion at the properly vouched for the credibility of its testimony close of trial. Dobbs’ indicated witness, Trudo, Gary injected and it personal knowledge he had of the matters improper appeal emotional closing into its he on which testified. See Fed.R.Evid. 602. argument. raising sufficiency In of the evidence fact, argument, its rebuttal objection really responding after the Endicott is launching its claim of an attack on credibility a belated attack on Trudo’s Dobbs’ credi- is, because he bility immunity, had received testimony prose- whether his —that time, argued, cutor granted truthful. At the was in Dobbs’ evidence was fact “[h]e unchallenged. immunity. That is an objection ordinary process by Endicott’s should we, Government, have been raised at the time of Dobbs’ able to [sic] testimony against obtain testimony. Wigmore, people regards it See Evidence * * (Chadborn will, 1979). bigger, you as if rev. criminals We there- § The court sustained objection, fore affirm Endicott’s Robertson’s conviction on Counts striking the II and IV. statement and instructing the disregard prosecutor it. The contin- ued, “Immunity very ordinary process is a JOHN S. ROBERTSON * * * Mr. grated Trudo wasn’t immu- [sic] nity by agent some on the street at 10:00in FACTS AND PROCEEDINGS morning. Agents the authority don’t have Robertson, citizen, John a Canadian was granted to do that. I him immunity along conspiracy convicted on two counts: to il- with Mr. Hamilton at noon.” A second receive, legally possess, transfer and. im- objection point. was sustained at this Rob- (Count port I) knowingly firearms aid- ertson that these remarks led the ing abetting importation thirty- the jury to infer that the pos- Government (Count XII). military three Polish rifles At evidence, presented sessed other to the trial, witnesses testified that Robertson jury, gave superior knowledge that it knew of and was in involved the sale of guilt. Robertson’s Trudo, Gary key Polish rifles. witness prosecution, for the Following testified that objection, prose- Robert- the above the continued, Mosin-Nagnant son sold him a Polish saying, bolt cutor was an hon- “[h]e * * * action rifle Puyallup gun person Trudo, at the show in suggest, est Mr. I Washington. subpoenaed completely Trudo was not you.” honest and credible with morning until the Although of June objection no was made this to

513 remark, mediately steps the court reminded that took to the neutralize the argument by reminding is remarks “counsel’s not evidence”. Government’s the jury that remarks argu- these were but comments to which Prosecutorial ment, not to be taken as evidence. His objects for defendant are reviewed “harm vigilance prevented any possi- reasonable error”, while the of review less standard bility of harm to Robertson. for comments which defendant failed to interpose objection “plain error”. an is Robertson also contends that the v. Young, United 105 references closing Government’s in its ar (1985). gument 1045 n. 84 L.Ed.2d 1 S.Ct. and on rebuttal to murders of adopted by The standard was Young prominent persons necessitate In reversal. McKoy, in States v. F.2d opening argument, United the Government said Cir.1985). (9th inquiry is whether explaining importance in the of firearms allegedly improper behavior, considered laws: trial, including the context entire the usual they situation that have a counsel, conduct of defense affected violence, they crime of weap- have a ability jury’s judge to evidence fair on, they operate very have to quick- ly. 771 F.2d at 1212. This stan McKoy, ly, only way and the to find out where dard some room for the Govern allows that weapon go came from is to to this ment’s that its assertion remarks were type paperwork. And it is a trackable response defense counsel’s attacks. In paper trail. Because if a dealer is like Supreme dealt Young, the Court with the Endicott, Rex going trail is to be response” by examining issue of “invited I nonexistent. you don’t have tell prosecutor’s they remarks see if people about the that gotten have killed “ ” simply ‘right[ed] justice. scale’ by firearms. Some of the celebrities Young, finding 105 S.Ct. at After by shot firearms. prosecutor’s comments made point, objection At this was sustained. closing argument

the course of did more Nonetheless, its closing argu- rebuttal scale, right than the Court then re ment, the again Government referred to plain viewed for error because defendant persons, attacks on saying, famous “[a]sk object McKoy, did not the remarks. yourselves why it’s necessary to trace a objected, because defendant we reviewed gun, guns you’re what kind of tracing. error. harmless John Hinkley comes to quickly.” mind Again, We do not address the issue wheth the court sustained an objection and prosecutor’s continued, er simply right prosecutor “[tjhere comments saying, * * * ” ed the scale because convinced are we are millions like that Id. Even if judge any potential the trial neutralized trial court’s corrective action was not might harm may strong been, of the remarks. A trial as as it have we do not prosecutorial improper cure the effect of believe prejudicial these remarks were so “by admonishing deny comments counsel to re as to Robertson a fair trial. Counsel may frain giving ap from such remarks or be allowed some latitude in illustrat- propriate jury.” ing arguments curative to the their instructions reference notori- 1213; McKoy, 771 F.2d at also ous or being see historical events without auto- Birges, matically States v. irrepa- F.2d found to have committed Cir.), prejudice. U.S. S.Ct. rable Id. The misconduct here 1926, (1984). lay in prosecutor’s 80 L.Ed.2d 472 While the the almost stubborn in- prosecutor profess personal not sistence upon disapproved analogy did knowl af- edge that, context, of the of Trudo’s ter the truthfulness ac court had ruled in this count, possibly his remarks could indi have allusion was out of line. This was pos cated to may that the Government overzeal of the kind that side neither permitted. sessed not be find additional information available We this conduct of the However, jury. Attorney the trial im- assistant United States censura- 514

ble, exists, inherently not because it was excessive dence we do not find that the dis- attorney’s disregard of the but because trict court denying abused discretion in discipline courtroom and the court’s rul- this motion.

ings. might The trial ap- court well have sanctions, plied compels but our role us to Subject III. Matter Jurisdiction. go holding unpro- no further than that this argues Robertson that the district fessionalism nonetheless did not make the subject lacked jurisdiction matter inherently trial unfair. over this case because some of the acts Brady II. Material. occurred outside the United States. Be jurisdiction law, cause question is a

Brady material is evidence our both review is de novo. favorable the accused and Peter Starr material to Produc guilt punishment. Films, Inc., the issue of or tion v. A Co. Twin Continental de 1440, process Cir.1986). fendant is denied due 783 F.2d 1442 if suppresses Brady Government material. jurisdiction United States ex Dupuy, 1492, 760 F.2d occurring tends to acts outside its territory (9th Cir.1985). 1501 n. 3 Robertson raised if those acts are produce intended to detri Brady his claim in his motion for a new mental effects the United States. Chua trial, which the district court denied. We States, Han Mow v. United 730 F.2d review the district court’s denial of Robert (9th Cir.1984), denied, 1312 cert. 470 U.S. son’s motion for a new trial for abuse of 105 (1985). S.Ct. 84 L.Ed.2d 790 discretion. Shaffer, United States v. Any conspiratorial occurring act outside (9th Cir.1986) F.2d United States the United States is within United States Steel, (9th Cir.1985). 759 F.2d jurisdiction if an overt act in furtherance of Robertson contends that conspiracy occurs in country. Government did not release all the doc Davis, United States v. 608 F.2d 556- uments seized in its search of codefendant (5th Cir.1979). jurisdiction This also ex home, Bernard Warner’s some of which tends to acts which are not in themselves question would call into Gary Trudo’s credi illegal. Brown, United States v. bility. Trudo testified that Robertson sold 954, (4th Cir.), him a Polish rifle at the Puyallup gun show 949, (1977). S.Ct. 51 L.Ed.2d 798 Washington. Testimony indicated that with, Robertson charged and convicted monthly. shows are held Although of, involvement in a conspiracy intended to Trudo sale, wavered the date of the he have detrimental effects in the United appeared place to claim it took at the De challenges States. He jurisdiction claiming cember show. Robertson maintains he was that testimony of witnesses of in show, Texas at the time of the December volvement in conspiracy was insuffi and that receipts Government seized cient to warrant the district court’s exer corroborating his account of his travels cise jurisdiction. of extraterritorial His ar during period the time in question, but did gument simply an attack on the credibili put them evidence nor release them witnesses, ty such, and as fails. The responds him. The Government that it jurisdiction district court had over this provided documentation to Robertson in cause. discovery receipts, which included his hotel no other evidence Appel exists. Sufficiency IV. of the Evidence. support lant offers no there is evi dence other than his bald assertion that Robertson that there was him, Warner told after the trial’s conclu insufficient evidence support verdict sion, exculpatory that additional guilty. examining documen sufficiency tary evidence, evidence had seized in been the search we ask “whether a reasonable but not jury, made available to viewing Robertson. Giv after light the evidence in the en Robertson’s bare assertion that this evi- government, most to the favorable could

515 beyond the guilty disregard have found discipline for courtroom and the ] defendant each rulings. a reasonable doubt of essential ele- court’s analysis Neither nor cita- charged.” supports ment of the crime Douglass, majority’s tion the assertion that at up 780 F.2d conjuring remarks the emotionally su- percharged images of the assassinations of insufficiency claim of Robertson’s Kennedy, President Senator Kennedy and an attack credibility launches on the of the King; Martin Luther the of murder John reviewing Government’s witnesses. Lennon; attempted and the assassination sufficiency evidence, of the this court Reagan of President preju- were not “so respect province “must the exclusive as deny dicial Robertson a fair trial.” jury credibility to determine the of witness- es, conflicts, evidentiary disagree. resolve and draw I Such pur- remarks no serve facts, proven reasonable inferences from pose other than jury to “inflame the to act assuming by jury that the resolved all such as community,” the conscience of the Unit- in a supports matters manner which the Ledezma-Hernandez, ed v. States 729 F.2d Ramos, 310, (5th Cir.1984), verdict.” United States v. 558 314 see also United 545, (9th Cir.1977). 546 Lester, F.2d We find the 1288, States v. F.2d 749 1301 support Cir.1984), evidence sufficient to of verdict jury “divert the from its guilty. duty to decide the case on by the evidence injecting guilt issues broader than or inno- judgments The of conviction are AF- cence” into the trial. United States FIRMED. Perez, 167, (9th Cir.), 491 F.2d 174 cert denied, 858, 106, 419 U.S. 95 S.Ct. 42 NORRIS, Judge, concurring Circuit in (1974). L.Ed.2d 92 part dissenting in part: prosecutor indulges When a in such ex aspects I concur all majority the conduct, cessive overzealous it is our opinion respect to Endicott’s convic- inquire duty behavior, whether “the con dissent, however, tion. I must from the light sidered of the whole trial ... majority’s that, unsupported assertion in a jury’s ability affected the the evi Act, trial for violations of Gun Control fairly.” dence McKoy, United States v. permitted a prosecutor “latitude” 1207, (1985), 771 F.2d citing closing argument encompasses inflammato- 1, 105 Young, 470 U.S. S.Ct. ry political references to assassination and (1985). 84 L.Ed.2d 1 Applying a guilt As murder. evidence of Robertson’s test, harmless error the court must consid overwhelming was less than and as the probable er whether it is more took than not only trial court mild corrective action prosecutor’s materially that the conduct judged prosecutor’s in relation af gross- to the trial, id., ly rhetoric, fected fairness excessive I consid would reverse Rob- ering both ground prejudice prose- ertson’s conviction on the the defendant prejudice or cutorial misconduct and remand for new whether not the cured was judge. trial. the trial See United States v. Potter, (9th Cir.1979); 616 F.2d majority properly finds censurable Mikka, United States v. 586 F.2d prosecutor’s repeated references to “ce- (9th Cir.1978); Parker, United States v. lebrities shot plea firearms” (9th Cir.) [themjselves “ask jury why ... it is S.Ct. L.Ed.2d 365 necessary gun, to trace a what kinds of (1977). guns you’re tracing. Hinckley John comes Here, guilt, mind.” Even after the trial sus- evidence of Robertson’s objection largely depended tained a defense to the latter re- credibility mark, prosecutor immediately witness, government contin- one so com- might ued: are millions pelling like that.” that a not have been “[TJhere However, majority analyzes swayed by prosecutor’s diversionary the miscon- solely Moreover, duct prosecutor’s terms of the such inflammato- tactics. where used, neutralization of ry references are may require the trial prejudice sustaining objec- a defense

do more than reminding

tion or that counsel’s (See

arguments evidence. are not United (9th Cir.1977) 555 F.2d 226 Segna,

States

(reversible prosecutor error where misstat- insanity

ed defense so as to shift law though proof

burden of to defendant even stated in defense properly

the law was jury).)

argument and in instructions invoked, spectres,

Such once are not so

easily laid to rest. prosecu-

Our courts should not tolerate a nightmares

tor’s use of cultural to enhance I

the odds of conviction. would reverse

Robertson’s conviction remand for

new trial. KELLEY,

John G. Albert E.

Kelley, Plaintiffs-Appellants,

INTERNATIONAL BROTHERHOOD OF WORKERS, Hig-

ELECTRICAL Earl Hansen,

gins, Dovey, Gilbert Edwin Dowse,

Philip Underhill, Frank Timo-

thy Anderson dba Anco Electrical Con- Inc., 1-20,

tractors and Does Defend-

ants-Appellees. 85-6167,

Nos. 85-6168. Appeals, Court of

Ninth Circuit.

Argued and June Submitted 1986.

Decided Oct.

Case Details

Case Name: United States v. Rex G. Endicott, United States of America v. John Stuart Robertson

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 27, 1986

Citation: 803 F.2d 506

Docket Number: 85-3128, 85-3129

Court Abbreviation: 9th Cir.