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September 2, 2005.

Victor Manuel Angulo-Palcios, Defendant.

The opinion of the court was delivered by: MARILYN HUFF, Chief Judge, District

Mr. Angulo began the first day of his jury trial on June 14, 2005. Prior to trial Mr. Angulo filed an in limine motion to exclude evidence of a personal use amount of cocaine found in his wallet at the time of his arrest. Mr. Angulo sought to preclude the evidence pursuant to Federal Rules of Evidence 404(b), 608, 609 and 403. The government stated at the in limine motion that it did not intend to offer the evidence under Rule 404(b) in its case in chief, but reserved their right to offer the evidence as impeachment if Mr. Angulo testified. The government did not offer the evidence in its case-in-chief.

  Mr. Angulo took the stand on the afternoon of June 14, 2005. On direct examination Mr. Angulo stated that he was not aware that there were drugs in the tires of the vehicle. Tr. 158:13-15. He further stated that he did not know there was anything hidden in the tires of the vehicle and that he did not know of any marijuana in the vehicle. Tr. 158:16-20. During the afternoon break government counsel requested to address the matter of admitting the cocaine evidence. The Court stated that it did not "think the Defense has opened up the door on that." Tr. 176:18-9. The government then attempted to argue that the cocaine bindles were part of the same transaction as the marijuana. Tr. 177:4-10. The defense objected to the admission of the evidence at this time under Rules 401 and 403. Tr. 178:8-13. The government then argued that following Mr. Angulo's testimony, "the landscape had changed" making the evidence relevant. Tr 178:20. Following a brief recess, the Court allowed Mr. Heenan to question Mr. Angulo regarding the cocaine for the purpose of determining its relevance under Rules 401 and 403. After several minutes of questioning, the Court determined that the cocaine was inadmissible under Rule 403. Tr. 185: 11-12.

  After this ruling, the government then argued that it wanted to offer the evidence under Rule 608(b) as impeachment evidence. Tr. 185:19-186:5. The Court then further explained and stated that it was excluding all the questions the government had as to the cocaine. The government then resumed its cross-examination of Mr. Angulo. Asking him, "[y]ou knew that marijuana was in the Ford Explorer that you were driving on March 5th, 2005, didn't you?" Tr. 192:6-8. Mr. Angulo stated, "No". Tr. 192:9. Government counsel then asked, "you knew that drugs were in the vehicle." Tr. 192:10. Mr. Angulo answered over defense objection, "[n]o, I didn't know there was marijuana." Tr. 192:15. The government asked again, over defense objection, "You did say that, but you knew there were drugs in the vehicle." Tr. 192:16-17. Mr. Angulo answered, "I didn't know that marijuana was in that car." Tr. 192:20-21. The government then for a third time asked Mr. Angulo if "you know if there was any drugs in the car?" Over defense objection, Mr. Angulo answered yes and began to explain that he didn't remember, and stated, "I had a small amount" and at that time the Court interrupted Mr. Angulo and stated that he did not have to answer the question. Tr. 193:1-7. This was done over the course of two defense objections and a request for side bar that were all denied. Tr. 193:2, 5. Defense counsel also moved to strike the preceding testimony, however the Court allowed the answer to stand. Tr. 193:8-9.

  After the jury had been released for the day, defense counsel moved for mistrial based on prosecutorial misconduct when the government attempted to open the door to evidence the Court had excluded. Tr. 203:2-7. During argument on the oral motion for mistrial the Court stated that "once [Mr. Angulo] testified, did he know there were drugs in the vehicle, there was no way that he could say no." Tr. 205:7-9. Defense counsel renewed the motion for mistrial at the close of the evidence. After the jury had retired to deliberate, the Court heard argument on the matter. Tr. II 69. The Court at this time commented that the defense could have opened the door to the cocaine evidence in crossing the rebuttal agent as to whether Mr. Angulo admitted knowledge of any drugs in the vehicle. Tr. II 69:24-5.



  "Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed.R.Crim.Pro. 33. Where prosecutorial misconduct more probably than not affected the fairness of the trial, a new trial is warranted. United States v. McKoy, 771 F.2d 1207, 1212 (9th Cir. 1985); see also United States v. Atcheson, 94 F.3d 1237, 1244 (9th Cir. 1996) ("To prevail on a motion for new trial based on prosecutorial misconduct, a defendant must show that the conduct more probably than not materially affected the fairness of the trial."); see generally United States v. Weatherspoon, 410 F.3d 1142, 1144 (9th Cir. 2005) (reversing and remanding for a new trial where "prosecutorial misconduct during the closing arguments affected the jury's fair consideration of the evidence in the record").

  "Prosecutors are subject to constraints and responsibilities that don't apply to other lawyers." United States v. Kojayan, 8 F.3d 1315 at 1323 (9th Cir. 1993). The responsibilities of attorney's representing private parties are to do everything ethically permissible to advance their clients interests. Id. The same cannot be said of attorney's representing the government in criminal cases, the prosecutor's job is to "serve truth and justice first." Id. The function of the prosecutor is to "vindicate the right of people as expressed in the laws and give those accused of crime a fair trial." Id. (citing Donnelly v. DeChristoforo, 416 U.S. 637, 648-49, 94 S.Ct. 1868, 1874, 40 L.Ed.2d. 431 (1974) (Douglas, J., dissenting).

  In this case, the government attempted to enter the evidence of the cocaine under Rule 608(b), arguing that it was admissible to impeach Mr. Angulo's credibility. This Court specifically denied that request under Rule 403. Federal Rule of Evidence 607 allows for the impeachment of witnesses by contradiction. While no specific rule states that a witness can be impeached through contradiction, it is inferred from Rule 607 and the rules on relevance that it may be accomplished by cross or through independent evidence. United States v. Castillo, 181 F.3d 1129, 1133 (9th Cir. 1999). Impeachment under Rule 607 allows for the admission of extrinsic evidence, whereas impeachment under Rule 608 does not. See Castillo, 181 F.3d 1129, Federal Rules of Evidence 607, 608. This Court has long held that extrinsic evidence cannot be admitted to impeach answers elicited during cross examination. See United States v. Bosley, 615 F.2d 1274 (9th Cir. 1980), United States v. Green, 648 F.2d 587 (9th. Cir. 1981) (holding that it was prejudicial error to admit extrinsic evidence to impeach testimony given on cross-examination). When testimony is volunteered on direct examination courts are more willing to permit impeachment by extrinsic evidence. Castillo at 1133. The distinction between direct and cross examination recognizes the ability of opposing counsel to manipulate a witness into "volunteering" statements on cross examination that may open the door to otherwise impermissible evidence. Castillo at 1133.

  This Court has long held that "[w]hen the defendant presents his or her case on direct without raising the issues that are open to impeachment, and the government cross-examines to elicit impeachable statements, the government must be prepared to use legitimate evidence. It is error to permit the government to proceed to impeach its own induced statements with inadmissible evidence." United States v. Whitson, 587 F.2d 948, 952-953 (9th Cir. 1978). Furthermore, the "government must not knowingly elicit testimony from a witness in order to impeach him with otherwise inadmissible testimony." United States v. Gomez-Gallardo, 915 F2d 553, 555 (9th Cir. 1990). The Court has further held that impeachment is improper when used as a guise to present otherwise inadmissible evidence to the jury. See United States v. Gilbert, 57 F.3d 709 at 711 (9th Cir. 1995).

  A defendant who takes the stand cannot "claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination." United States v. Green, 648 F.2d 587 at 594 (9th Cir. 1981). However, the rules of relevance with respect to the admissibility of the evidence still apply. Id. Here, the Court specifically precluded testimony regarding the cocaine found in Mr. Angulo's wallet, after his testimony on direct examination. Therefore, it cannot be argued that Mr. Angulo merely by taking the stand subjected himself to cross-examination as to the cocaine, or that he opened the door to such evidence. In Green, the Court held that where the testimony was inadmissible under Rule 403 in the Government's case in chief, it was an abuse of discretion to then admit the evidence on cross-examination. Id. In Green the government argued that to preclude extrinsic evidence for impeachment would give witnesses the opportunity to commit perjury without fear of rebuttal. Id. at 596 n. 12. However, the Court stated that unless the statements were given on direct examination or volunteered on cross-examination, the contention was not persuasive. Id. The government is not allowed to enter evidence that is otherwise inadmissible substantively solely for the purposes of impeachment, that they themselves invited. See Gilbert, 57 F.3d 709. In general, the Rule is that if a witness has not opened the door to the impeachment evidence by his testimony on direct, or a statement he volunteered on cross-examination, then extrinsic evidence is not admissible to impeach the witness. See Fed.R.Evid. 608. In practice this means that if a witness denies the statement on cross-examination the only means of impeachment is through further cross-examination. See Bosley, 615 F.2d 1274. While here the government was not allowed to enter extrinsic evidence of the cocaine, the questions and answers elicited and allowed on cross examination were no less improper. Mr. Heenan improperly asked Mr. Angulo questions designed to bring the cocaine into evidence. Had Mr. Angulo denied the presence of drugs in the vehicle, the evidence of cocaine would have been clearly inadmissible as extrinsic evidence. Mr. Angulo should not be punished for his unwillingness to be untruthful while on the stand under oath.

  The government, well aware of the Court's ruling that the evidence was inadmissible, intentionally asked Mr. Angulo questions that provided him with the Hobson's choice of either denying knowledge of any drugs, and being impeached with the cocaine, or admitting knowledge of the cocaine. The defense had argued and the Court had ruled, that the prejudicial effect of the cocaine evidence outweighed any probative value it may have, even as impeachment evidence. Here, the government was well aware of this ruling when it began questioning Mr. Angulo. The government asked Mr. Angulo a question identical to that posed by the defense to an agent in which the Court stated that the defense may have opened the door. Here, Mr. Angulo, over several defense objections, and in response to repeated questioning, eventually answered "Yes" when asked whether he knew there were drugs in the car.

  The government in questioning Mr. Angulo disobeyed a direct ruling of this Court. The Court had ruled previously that the evidence of the cocaine was unduly prejudicial under Rule 403 and should not be admitted into evidence. By repeatedly questioning Mr. Angulo as to his knowledge of any drugs in the vehicle the government was attempting to enter evidence that had been specifically excluded. The effect that this questioning had on the jury was evidenced by the question asked by the jurors during deliberations, regarding whether or not they needed to find that Mr. Angulo knew specifically that it was marijuana that was in the car. The testimony could not have been erased in the minds of the jury, especially when knowledge was the issue of contention in the case. Mr. Heenan's repeated questioning as to Mr. Angulo's knowledge of any drugs in the vehicle was an impermissible line of questioning in light of the Court's previous ruling. The government's blatant disregard of the ruling of the Court constituted misconduct warranting a new trial. The purposes of the Court's supervisory powers are threefold: to implement a remedy for violation of recognized rights, to preserve judicial integrity by ensuring that a convictions rests on appropriate considerations validly before the jury, and finally, as a remedy designed to deter illegal conduct. United States v. Hastings, 461 U.S. 499, 505 (1983) (internal citations omitted).

  The prejudicial effect of these statements was evidenced by government counsel's closing argument as well. During closing argument on several different occasions, Mr. Sandoval argued that Mr. Angulo knew that there were drugs, not specifically marijuana, in the vehicle. Further, the jury submitted a question to the court during ...

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