United States v. Everhart, 865 F.2d 265 (9th Cir. 1988)

MEMORANDUM^** 

Neither of Everhart's assignments of error has merit.

First, we note (on our own initiative) that Everhart's counsel did not, at the conclusion of the evidence, renew his pretrial motion to sever for trial the two counts in the indictment. Such a procedural failure is generally deemed a waiver or abandonment of the right to appellate review. United States v. Free, 841 F.2d 321, 324 (9th Cir.), cert. denied, 108 S. Ct. 2042 (1988). However, in perhaps an excess of lenity we have considered the matter. The conclusion is manifest that Everhart suffered no prejudice by the joinder. The evidence of sexual relations and related matters to which Everhart strenuously objected as irrelevant to the kidnapping count and inflammatory was probative of his motive in taking the boy to California. "Although it is true that motive need not be proved under 18 U.S.C. § 1201, it is far from irrelevant. Motive is evidence of the commission of any crime. This Court has previously held evidence of sexual relations admissible because of its relevance to motive in a kidnapping case." United States v. Bradshaw, 690 F.2d 704, 708 (9th Cir. 1982), cert. denied, 463 U.S. 1210 (1963).

Second, objectively considering the record does not lead us to the conclusion that the prosecutor's rhetorical outbursts during closing argument were so harmful that "it is probable that they materially affected the fairness of the trial." People of the Territory of Guam v. Ignacio, 852 F.2d 459, 462 (9th Cir. 1988). Moreover, the experienced trial judge, who, of course, was in a much better position than we to appraise the probable effect of the remarks, was of this same opinion. She denied Everhart's motion for a mistrial.

AFFIRMED.