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USA v. Santiago

United States District Court, N.D. California

August 27, 2019

USA, Plaintiff,



         Having considered the papers submitted and arguments made during the August 23, 2019 hearing, the Court hereby DENIES defendant's motion for a new trial.


         On January 29, 2019, the United States filed an indictment against defendant charging her with three counts of assault with a deadly weapon against federal officers in violation of 18 U.S.C. §§ 111(a) and 111(b). Dkt. No. 1 (Indictment). On May 21, 2019, at the parties' pre-trial conference, the government dismissed Counts 1 and 2 of the indictment, proceeding to trial solely on the alleged assault of a federal officer, U.S. Marshall Austin LeFort. Dkt. No. 46 (Pre-Trial Scheduling Order).

         On May 31, 2019, the parties filed joint proposed jury instructions, including Ninth Circuit Model Jury Instruction No. 8.4 (Assault on a Federal Officer or Employee) which reads in pertinent part:

There is a forcible assault when [1] one person intentionally strikes another, or [2] willfully attempts to inflict injury on another, or [3] intentionally threatens another coupled with an apparent ability to inflict injury on another which causes a reasonable apprehension of immediate bodily harm.

         The jury was selected on June 3, 2019, the trial held on June 4-5, and the jury rendered its verdict on June 6, 2019. Dkt. Nos. 58, 60, 62, 63 (Minute Entries), 64 (Jury Verdict). During its initial closing argument, the government improperly referred, twice, to Ms. Santiago going “back to prison.”[1] Dkt. No. 88 at 5 (Opposition). Ms. Santiago also argues that during the government's closing rebuttal argument it misstated the requisite mens rea for assault and raised new arguments. Dkt. No. 82 at 11-21 (Motion for New Trial). Finally, while the jury was deliberating, they sent a note reading: “We have all 11 jurors in firm agreement on a verdict and one juror who maintains a position of reasonable doubt and we don't believe addition time will bridge the gap. What are our options?” Dkt. No. 67 at 4 (Jury Notes). For these reasons defendant moves now for a new trial.


         Federal Rule of Criminal Procedure 33 permits the court, on defendant's motion, to “vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim. P. 33(a). The court's power to grant a new trial is broader than its power to grant a motion for judgment of acquittal because the court “is not obliged to view the evidence in the light most favorable to the verdict, and it is free to weigh the evidence and evaluate for itself the credibility of the witnesses.” United States v. Kellington, 217 F.3d 1084, 1097 (9th Cir. 2000). However, the court's discretion is not unconstrained. “Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” Fed. R. Crim. Proc. 52. This harmless error rule applies to new trial motions. Fed. R. Crim. Proc. 52 advisory committee's note. It also applies to instructional error. Neder v. U.S., 527 U.S. 1, 15 (1999); U.S. v. Harmon, No. 11-10471, 537 Fed.Appx. 719 (9th Cir. Aug. 12, 2013) (quoting U.S. v. Thongsy, 577 F.3d 1036, 1043 (9th Cir. 2009) (finding district court abused its discretion in granting new trial stemming from alleged instructional error that was harmless given the overwhelming evidence of illegality); U.S. v. Allen, 603 F.3d 1202, 1215 (10th Cir. 2010) (affirming conviction and finding district court's refusal to give specific unanimity instruction constituted harmless error beyond a reasonable doubt).


         Defendant raises four grounds upon which she argues she is entitled to a new trial: (1) the government made a new argument for the first time in its rebuttal closing; (2) during closing argument, the Government twice implicitly told the jury that Ms. Santiago had previously been to prison; (3) the law regarding assault was not properly articulated to the jury during the government's rebuttal closing argument; and (4) the jury indicated it is was hopelessly deadlocked and revealed its split to the Court and the parties. Dkt. No. 82 at 9 (Motion for New Trial). These grounds are discussed in turn below.

         I. The Government's Closing Argument

         A. Reference to Ms. Santiago's Prior Prison Sentence was Innocuous

         During the government's closing argument, AUSA Michael Rodriguez twice referenced Ms. Santiago going “back to prison.” Dkt. No. 88-3 at 30:16-24 (Ex. C to Opposition - June 5, 2019 Trial Transcript). At the pre-trial conference and in the pre-trial scheduling order the Court ordered the government not to reference Ms. Santiago's probation status or previous prison sentence. Dkt. Nos. 45, 46 (Minutes for Pre-Trial Conference and Final Pre-Trial Scheduling Order).

         Ms. Santiago argues the government's references to her prior prison sentence are grounds for a new trial for two reasons: (1) it had no factual support in the record, and (2) it introduced inflammatory, irrelevant, and unduly prejudicial information to the jury-for the first time in closing ...

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