The opinion of the court was delivered by: MARILYN HUFF, Chief Judge, District
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S
STATEMENT OF FACTS
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
THE COURT SHOULD GRANT A NEW TRIAL
"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.
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 ...