Unpublished Disposition, 921 F.2d 281 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 281 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Mathieu J. CHRISTENSEN, Defendant-Appellant.

No. 90-30009.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 4, 1990.Decided Dec. 13, 1990.

Before HUG and NELSON, Circuit Judges, and CARROLL**  District Judge.

MEMORANDUM* 

Appellant, Mathieu J. Christensen was convicted of aiding and abetting the distribution of a controlled substance pursuant to 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2. He was sentenced to 57 months imprisonment, 36 months supervised release and ordered to pay a fine of $4,416.

Facts

On April 26, 1989, Christensen was indicted on one count of aiding and abetting Carlos Maldonado to distribute cocaine. Maldonado arranged a sale of cocaine to an undercover police officer, Audie Holloway. While waiting at a house for the sale to occur, Holloway learned that Maldonado was depending on Gerald Strachan to obtain the cocaine and have it delivered to the house where Maldonado and Holloway were waiting. Strachan left the house several times, and eventually returned with Christensen, who allegedly brought the cocaine with him.

At trial, the government relied heavily on the testimony of Holloway and Strachan. When Strachan was initially called to testify he invoked his Fifth Amendment right against self-incrimination. The following day the U.S. Attorney granted Strachan "use immunity" and he proceeded to testify.

On September 11, 1989 the jury returned a guilty verdict against Christensen.

Issues

I. PROSECUTORIAL MISCONDUCT--(Calling witness who invokes Fifth Amendment)

Standard of Review

This Court applies a harmless error test in determining whether it is more probable than not that improper conduct by the prosecutor materially affected the fairness of the trial. United States v. McKoy, 771 F.2d 1207, 1212 (9th Cir. 1985). This assessment requires de novo review. United States v. Spillone, 879 F.2d 514, 520 (9th Cir. 1989).

Discussion

Christensen contends that his conviction should be reversed because the prosecutor called Strachan to testify when he knew or should have known that the witness was going to invoke his Fifth Amendment right not to testify. Christensen contends that Strachan's invocation of his Fifth Amendment right and the subsequent order of contempt against Strachan confused the jury and caused them to give undue weight to his testimony.

When a government witness invokes his or her Fifth Amendment right against self-incrimination, prosecutorial misconduct may be found either (1) when the Government has made a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege, or (2) when an inference from a witness' refusal to answer added critical weight to the prosecution's case in a form not subject to cross-examination. Namet v. United States, 373 U.S. 179, 186-67 (1963).

The calling of Strachan may or may not have been prosecutorial misconduct depending on what the prosecutor knew at the time. However, a short time after Strachan invoked his Fifth Amendment privilege, the prosecution granted him immunity and allowed him to be examined and cross-examined. This negated the effect of any inferences that might have been drawn from the earlier invocation of the Fifth Amendment. See United States v. Peterson, 549 F.2d 654, 658-659 (9th Cir. 1977). Accordingly, the prosecutor's conduct in this instance did not materially affect the fairness of the trial.

II. PROSECUTORIAL MISCONDUCT - (Vouching)

Standard of Review

Because Christensen failed to object at trial, the prosecutor's vouching is reviewed for plain error. United States v. Lew, 875 F.2d 219, 223 (9th Cir. 1989). Under the plain error doctrine, this Court will recognize only those errors that seriously affect the fairness, integrity or public reputation of judicial proceedings; it will reverse in those circumstances in which a miscarriage of justice would otherwise result.


Discussion

Christensen argues that his conviction should be reversed because the prosecutor improperly vouched for Strachan's credibility.

During closing argument the prosecutor commented that Strachan was not a liar and that he did not lie. Christensen concedes that no contemporaneous objection to these remarks was made.

Although Strachan's testimony was improperly bolstered, the prosecutor's limited statements did not rise to the level of plain error. The prosecutor's conduct, in light of Christensen's failure to object, did not seriously affect the fairness or integrity of the district court proceedings.

Standard of Review

A district court's ruling on the use of leading questions is reviewed for an abuse of discretion. United States v. Tsui, 646 F.2d 365, 368 (9th Cir. 1981).

Discussion

Christensen claims that the trial court committed error by allowing the prosecution to ask Strachan leading questions on direct examination.

Leading questions should not ordinarily be used on direct examination; they may be used when a party calls a hostile witness. Fed.R.Evid. 611(c).

The district court did not initially allow the prosecution to ask leading questions. Although the trial judge did not explain his later overruling of defense counsel's objection to the use of leading questions by the government, there is ample evidence on the record that Strachan was a hostile witness.

Therefore, the district court did not abuse its discretion by allowing the prosecutor to lead Strachan during direct examination.

Standard of Review

This Circuit has used a harmless error analysis in assessing whether errors taken cumulatively require reversal. See United States v. Berry, 627 F.2d 193, 201 (9th Cir. 1980). So long as errors of constitutional magnitude are not involved, reversal is not warranted where aggregated errors are more probably harmless than not. Id.

Discussion

It is Christensen's position that even if the prosecutorial vouching was not plain error, it amounted to reversible error when considered together with other errors.

While several errors may not in themselves rise to the level of reversible error, their cumulative effect may nevertheless be so prejudicial as to warrant reversal. See United States v. Wallace, 848 F.2d 1464, 1475 (9th Cir. 1988).

The cumulative impact of the "errors" at issue in this case is not sufficient to warrant reversal. Here, the error was more probably harmless than not. See United States v. Berry, 627 F.2d at 201 (1980).

AFFIRMED in all respects.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 **

Hon. Earl H. Carroll, United States District Judge for the District of Arizona, sitting by designation