Unpublished Disposition, 895 F.2d 1418 (9th Cir. 1988)

MEMORANDUM^*

SUMMARY

Frank Juan Chavez ("Appellant") was indicted by a grand jury and convicted in a district court jury trial of four federal offenses: (1) first degree murder, (2) assault with a dangerous weapon with intent to inflict bodily harm, (3) first degree burglary, and (4) use or carrying of a firearm during commission of a crime of violence. He appeals the convictions on the grounds that the district court erred in finding appellant's five-year-old son competent to testify, in its instructions to the jury, in refusing to dismiss the grand jury indictment for alleged prosecutorial misconduct, and in refusing to acquit appellant on the assault count based on insufficient evidence. He also maintains that alleged prosecutorial misconduct during closing argument denied him a fair trial. He seeks reversal of the convictions, a new trial for counts 1, 3, and 4, and dismissal of count 2.

We affirm the four convictions. The trial judge did not abuse his discretion in finding appellant's son competent to testify. Although the assault charge was flawed, it did not rise to the level of plain error. The district court did not err in refusing to dismiss the grand jury indictment, where the charging decision was not substantially influenced by the alleged violation. A rational fact finder could have found that appellant was guilty beyond a reasonable doubt of the assault offense, based on the available evidence. And finally, any prosecutorial misconduct during closing argument did not so prejudice appellant as to warrant reversal of the convictions.

FACTS

On April 9, 1988, Ursulina Thompson ("Thompson"), appellant's estranged girlfriend, was killed in her family's trailer in Chinle, Arizona, on the Navajo Indian Reservation. The only witness to the murder was Jeremiah Thompson ("Jeremiah"), the five-year-old son of the victim and the appellant.

A grand jury indicted the appellant on four felony counts on May 18, 1988. The appellant moved to dismiss the indictment, to get disclosure of the grand jury transcript, and to hold a pretrial competency hearing for Jeremiah. The first two items were denied. Two competency hearings were held, establishing that Jeremiah could testify at trial.

Jeremiah testified at trial that on the night of April 9, the appellant fired a gun at the front door lock of the Thompsons' trailer and came inside. While the appellant stood at the door, Jeremiah and his mother ran to the back bedroom. Jeremiah hid under a bed and heard but did not see the appellant come into the room. Jeremiah heard his mother say, "Don't Frank," and heard the appellant say, "I came to kill you Ursie." A shot was fired, killing Thompson. The appellant left before Jeremiah came out from under the bed.

Other evidence included the results of the government's investigation into the crime. Shoe impressions found outside the trailer matched the type of boot that the appellant had purchased several months earlier, and tire impressions found outside the trailer inconclusively matched the appellant's van tires. There was no evidence that the appellant owned the type of gun used to kill Thompson, a .38 caliber handgun.

The district court jury found appellant guilty on all four felony counts.

STANDARD OF REVIEW

A ruling that a child is competent to testify as a witness

is within the trial court's discretion and will not be

disturbed unless clearly erroneous. Pocatello v. United

States, 394 F.2d 115, 116-17 (9th Cir. 1968). A finding that

a decision was clearly erroneous occurs when review of all

of the evidence creates a "definite and firm conviction that

a mistake has been committed," even though there might be

evidence that supports the decision. United States v.

United States Gypsum Co., 333 U.S. 364, 395 (1948).

ANALYSIS

The appellant maintains that the district court erred in finding the five-year-old son of the appellant and the victim competent to testify. From the record, we find that the court did not abuse its discretion in finding competency.

There is "no precise age" at which a child becomes competent to testify, Wheeler v. United States, 159 U.S. 523 (1895), and factors to consider include the child's intelligence, understanding of the difference between truth and lies, and appreciation of the duty to tell the truth. Id. Other intangible factors that a court might examine are the child's capacity to observe, recollect, and communicate. Pocatello, 394 F.2d at 117.

Here, Jeremiah took part in two competency hearings, on July 25, 1988, and on July 27, 1988. The judge asked Jeremiah questions about the people, pets, places, and objects in his life and observed Jeremiah's answers and demeanor. The court then ruled that Jeremiah could testify. The record supports this ruling.

II. THE JURY INSTRUCTIONS ON THE ASSAULT CHARGE

STANDARD OF REVIEW

Jury instructions must be reviewed as a whole to determine whether they were "misleading or inadequate to guide the jury's determination." United States v. Washington, 819 F.2d 221, 226 (9th Cir. 1987). The question of whether an instruction misstated elements of a statutory crime is one of law and is reviewed de novo. United States v. Spillone, 879 F.2d 514, 525 (9th Cir. 1989).

ANALYSIS

Appellant argues that (1) the element of intent to inflict bodily injury was excluded from the jury instruction on assault, and (2) the instruction did not include the requirement that assault by threat create an actual fear in the victim, but rather required an objective element of fear that the victim have "reason to fear or expect immediate bodily harm."

The instructions for the second count clearly set out the four necessary elements of the crime of assault with a dangerous weapon with intent to inflict bodily harm, the third being that the defendant intended to do bodily harm. Following the listing of the required elements are three explanatory paragraphs defining one of the elements, assault with a deadly weapon. Reading the instruction as a whole, it is apparent that the last three paragraphs are elaborations on the particular element "assault with a dangerous weapon," but are not meant to sum up the entire instruction. The absence of the intent element from the last few paragraphs of the instruction does not detract from the fact that it is required by the instruction as a whole.

Appellant's second argument fails as well. In the Ninth Circuit, assault is defined as "either [ (1) ] a willful attempt to inflict injury upon the person of another, or [ (2) ] ... a threat to inflict injury upon the person of another which, when coupled with an apparent present ability, causes a reasonable apprehension of immediate bodily harm." United States v. Dupree, 544 F.2d 1050, 1051 (9th Cir. 1976). Actual, reasonable fear, then, is a necessary element of assault by threat. See also United States v. Jim, 865 F.2d 211, 213 (9th Cir.), cert. denied, 110 S. Ct. 93 (1989); United States v. Skeet, 665 F.2d 983, 986 n. 1, 987 (9th Cir. 1982). The jury instruction was flawed in defining assault by threat as requiring that the victim have "reason to fear or expect immediate bodily harm," rather than that the victim actually have reasonable fear.

We need not reverse the assault conviction in this case, however, if "on the whole record . . . the error . . . [is] harmess beyond a reasonable doubt." Rose v. Clark, 478 U.S. 570, 583 (1986) (quoting United States v. Hasting, 461 U.S. 499, 510 (1983)) (elipses and brackets added in Rose v. Clark); (United States v. Darby, 857 F.2d 623, 627 (9th Cir. 1988); United States v. Washington, 819 F.2d at 226.¹  Testimony at trial established that Chavez fired a gun into the front door of the trailer, entered, followed Thompson and Jeremiah to a bedroom, told Thompson, as her son hid under the bed, "I'm going to kill you Ursie," and then shot and killed Thompson. Jeremiah spent the night under the bed, then barricaded himself in the trailer "so no one [would] come back in." Given this strong testimony relating to the incident, it is beyond reasonable doubt that a correct jury instruction would not have affected the jury's verdict. We hold that the erroneous instruction was harmless error in this case.

III. TRIAL COURT REFUSAL TO DISMISS INDICTMENT

STANDARD OF REVIEW

A district court's decision not to dismiss a grand jury indictment where there was alleged prosecutorial misconduct is to be reviewed de novo. United States v. Larrazolo, 869 F.2d 1354, 1355 (9th Cir. 1989); Spillone, 879 F.2d at 520.

ANALYSIS

The appellant contends that prosecutorial misconduct occurred during the grand jury proceedings because there was insufficient evidence for the prosecutor to seek an indictment on the assault count, and because the grand jury was probably given a definition of the offense under count two that omitted the requirements of actual fear and intent to inflict bodily harm. Under Bank of Nova Scotia v. U.S., 108 S. Ct. 2369 (1988), we find appellant's argument meritless.

In Bank of Nova Scotia v. United States, 108 S. Ct. 2369, upon motion by the defendants, the trial court dismissed indictments prior to the conclusion of trial as a result of nonconstitutional errors. The Court of Appeals reversed, and the Supreme Court affirmed the reversal. The Court found that prejudice to the defendant must be shown, and held that the proper standard to apply is the one articulated in Justice O'Connor's concurrence in United States v. Mechanik, 475 U.S. 66 (1986): an indictment should be dismissed only if the grand jury's decision was substantially influenced by the nonconstitutional violation or there is grave doubt as to whether the decision was free of such substantial influence. Bank of Nova Scotia, 108 S. Ct. at 2374.

The first claim, that there was insufficient basis for the prosecutors to seek an indictment for assault, is easily disposed of. It is well established that insufficiency of evidence is not grounds for attacking an indictment and that an indictment "valid on its face" cannot be challenged on the reliability or competence of the evidence. Bank of Nova Scotia, 108 S. Ct. at 2377, citing United States v. Calandra, 414 U.S. 338 (1974) and Costello v. United States, 350 U.S. 359 (1956).

The second argument, that the grand jury might have been misinformed as to the requirements of count two, assault with a deadly weapon with intent to do bodily harm, also fails. The appellant maintains that it is possible that the grand jurors were given the same flawed definitions on the assault count as were used at trial. As already discussed, at the conclusion of the trial, the jury was sufficiently instructed that intent to commit bodily harm is a necessary element of the offense. The flaw was the failure to instruct that actual fear on the part of the victim was required.

The district court did not err in denying the motion to dismiss the indictment, however. A properly returned grand jury indictment is not automatically rendered ineffective because of a technical error during the proceedings before the grand jury. Larrazolo, 869 F.2d at 1359, citing United States v. Wright, 667 F.2d 793, 796 (9th Cir. 1982). Actual prejudice to the appellant must be shown. Bank of Nova Scotia, 108 S. Ct. at 2374.

Sufficient evidence was presented to the grand jury to show that there was a reasonable basis for Jeremiah to be afraid during the shooting. From that evidence, the grand jury could have reasonably determined that actual fear existed. There is little concern that the violation substantially influenced the charging decision.

IV. TRIAL COURT REFUSAL TO ACQUIT ON ASSAULT COUNT

STANDARD OF REVIEW

A denial of a Fed. R. Crim. P. 29 motion to acquit is reviewed by viewing the evidence in the light most favorable to the government to see if there was "substantial relevant evidence from which the jury reasonably could have found the defendant guilty beyond a reasonable doubt." United States v. Sarault, 840 F.2d 1479, 1487 (9th Cir. 1988). See also United States v. Adler, 879 F.2d 491, 495 (9th Cir. 1988); United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, 110 S. Ct. 179 (1989).

Under this standard of review, the trial court decision must be affirmed if the evidence is such that a reasonable mind might accept it as adequate to support a conclusion, even if it is possible that more than one conclusion can be drawn from the evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971); Landes Const. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir. 1987).

ANALYSIS

The appellant argues that there was insufficient evidence to support a conviction of the assault charge. He argues that first, there was no evidence of either a willful attempt or a threat that caused actual fear, under the definition of assault, and second, that there was no evidence of intent to do bodily harm to Jeremiah. We find that this argument lacks merit.

Clearly, a reasonable jury could infer from the events that unfolded on April 9, 1988, that a threat was posed to Jeremiah that created actual fear on his part. Thus, there is substantial evidence on which a jury might reasonably have found that intent to do bodily harm, an attempt or a threat, and actual fear of bodily harm existed.

V. ALLEGED PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT

STANDARD OF REVIEW

Abuse of discretion is the standard of review for the district court's refusal to entertain appellant's objections at trial to statements made by the prosecutor in closing argument. United States v. Patel, 762 F.2d 784, 794 (9th Cir. 1985). In reviewing the entire trial, the question is whether the statements "were so prejudicial that they likely influenced the jury adversely to the defendant and deprived the defendant of a fair trial." Id. at 795. If no objection was made to the statements at trial, the statements are to be reviewed for plain error. See, e.g., United States v. Laurins, 857 F.2d 529, 539 (9th Cir. 1988), cert. denied, 109 S. Ct. 3215 (1989).

ANALYSIS

The appellant maintains that there were five instances of prosecutorial misconduct during the closing argument. The first argument is that the prosecution acted improperly by stating that it wasn't the government who charged appellant with assault, but that rather it was the grand jury, a comment to which the defense objected. The appellant argues that such a reference leaves the petit jury with the impression that guilt had already been established and that there should be a conviction.

There are times when references to the grand jury are improper. See, e.g., United States v. Multi-Management, Inc., 743 F.2d 1359, 1365 n. 4 (9th Cir. 1984). However, an improper reference is not necessarily grounds for reversal. In Multi-Management, Inc., the prejudicial nature of the statement was removed when the trial court admonished the prosecutor and directed the jury to disregard the comment. Id. at 1365.

In our case, the statement was not improper. The jurors were instructed that an indictment does not constitute evidence. In addition, before the prosecution made the comment, defense counsel stated that the government was charging appellant with assault. The prosecution's reference to the grand jury appears to be a clarification of defense counsel's statement.

Appellant's next concern is that the prosecution improperly commented on appellant's failure to testify at trial, to which the defense also objected. The comments in question pertained to the fact that bootprints had been found at the scene of the crime, but the defense had not adequately explained where the defendant's boots were. The appellant maintains that this was an attempt to point out to the jury that the defendant had not testified.

Because a defendant has a fifth amendment right not to testify, a prosecutor's comment is an infringement on that right when it focuses on the failure of the defendant rather than the defense to explain or counter evidence or testimony from the trial. United States v. Wasserteil, 641 F.2d 704, 709-10 (9th Cir. 1981). The critical question is whether the comment "was manifestly intended or was of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify." Id. at 709, quoting United States v. Polizzi, 500 F.2d 856, 891 (9th Cir. 1974), cert. denied, 419 U.S. 1121 (1975).

In our case, the defense spent considerable time in closing arguments on the subject of the bootprints and the government's failure to prove that the prints were appellant's. Given that it was fairly clear that appellant had bought a pair of boots, it was proper for the prosecution to comment on the fact that the defense was not providing exculpatory evidence. This was not a comment on the defendant's failure to testify but was rather a comment on the failure of the defense to counter evidence and testimony. Under Wasserteil, the statement was not improper. See also United States v. Bagley, 772 F.2d 482 (9th Cir. 1985), cert. denied, 475 U.S. 1023 (1986).

The appellant next argues that the prosecutor improperly expressed his personal opinion of the appellant's guilt in closing argument by saying that "without any hesitation in our heart, the evidence shows this man is a cold blooded murderer." Under United States v. McKoy, 771 F.2d 1207 (9th Cir. 1985), prosecutors may not state a personal belief in a defendant's guilt or the credibility of a witness.

The defense, however, did not object to this particular statement at the time, and it is to be reviewed for plain error. See Laurins, 857 F.2d at 539. Under the plain error standard, reversal would be appropriate only to "prevent a miscarriage of justice or to preserve the integrity of the judicial process." Id.

We have held that a remark is not sufficiently egregious as to constitute plain error when it is possible to construe the comment as a statement on the strength of the evidence rather than on the prosecutor's personal opinion. Id. In our case, the prosecutor's comment could be construed as a statement on the quality of the evidence gathered by the government and as a response to defense counsel's argument that the evidence-gathering was biased and result-oriented. The statement does not rise to the level of plain error.

Appellant next maintains that the prosecutor misrepresented the evidence on three occasions during closing argument. However, the Ninth Circuit allows closing arguments to include inferences from the testimony as long as they are not unfair, and gives attorneys latitude to exceed the evidence in the record as long as it is not done in any "significant respect". United States v. Cox, 633 F.2d 871, 875 (9th Cir. 1980), cert. denied, 454 U.S. 844 (1981); United States v. Parker, 549 F.2d 1217, 1222 (9th Cir.), cert. denied, 430 U.S. 971 (1977), citing United States v. Gorostiza, 468 F.2d 915, 916 (9th Cir. 1972). See also United States v. Portac, Inc., 869 F.2d 1288, 1295 (9th Cir. 1989). Prosecutors are allowed to strike "hard blows", using fair inferences from the evidence, but cannot strike "foul" blows. United States v. Prantil, 764 F.2d 548, 555 (9th Cir. 1985).

The comments by the prosecutor were inferences that did not misstate or exceed the evidence in a significant way and were not so gross as to prejudice the defendant and warrant a new trial. See Parker, 549 F.2d at 1222.

Finally, the appellant seeks reversal on the ground that the prosecutor used inflammatory language during the closing argument, improperly referring to the appellant as a "gun broker" and to the government and FBI agent involved as "your" (the jury's) government and representative.

Testimony indicated that the appellant bought and sold guns on at least a part time basis. Further, there is a line between "permissible oratorical flourish" and "impermissible comment calculated to incite the jury against the accused." United States v. Lester, 749 F.2d 1288, 1301 (9th Cir. 1984), quoting United States v. Kopituk, 690 F.2d 1289, 1342-43 (11th Cir. 1982), cert. denied, 463 U.S. 1209 (1983).

It is likely that the prosecution used the word "your" to encourage the jury identify with the government. No objection was made at the time and so the appropriate standard for review is the plain error standard. Laurins, 857 F.2d at 539. Only comments causing a "miscarriage of justice" and threatening the "integrity of the judicial system", id., require that a conviction be set aside. Here, the comments do not rise to that level. We find that the comments were improper but do not warrant reversal.

Convictions AFFIRMED.