United States District Court, N.D. California
ORDER ON MOTION FOR NEW TRIAL RE: DKT. NO.
ILLSTON UNITED STATES DISTRICT JUDGE
considered the papers submitted and arguments made during the
August 23, 2019 hearing, the Court hereby DENIES
defendant's motion for a new trial.
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).
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
There is a forcible assault when  one person intentionally
strikes another, or  willfully attempts to inflict injury
on another, or  intentionally threatens another coupled
with an apparent ability to inflict injury on another which
causes a reasonable apprehension of immediate bodily harm.
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.” 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.
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).
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
The Government's Closing Argument
Reference to Ms. Santiago's Prior Prison Sentence was
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
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