Unpublished Disposition, 922 F.2d 845 (9th Cir. 1989)

MEMORANDUM^** 

Appellant Harry Boy argues on appeal that his conviction for rape and carnal knowledge should be dismissed because there was insufficient evidence to prove that the statute of limitations applicable to the crime had not run before the indictment was brought. In the alternative, Appellant asks for a new trial, alleging prosecutorial misconduct during closing arguments, and an abuse of discretion by the trial court judge in refusing to provide an adequate jury instruction on the government's burden of proof.

On March 8, 1984, fourteen-year-old Charlene Kayonnie gave birth to a son following an apparently normal pregnancy to term. The child is the son of Charlene's fifty-seven year-old stepfather, defendant Harry Boy ("Appellant").¹  Charlene alleged that Appellant raped her on July 20, 1983, at the home of Charlene's grandmother, Martha Jones. Charlene did not report the incident for over two years, until Appellant's marriage to Charlene's mother began to disintegrate.

On June 29, 1988, Appellant was charged in an indictment with rape in violation of 18 U.S.C. 1153 and 2031 [counts I and III], and with carnal knowledge in violation of 18 U.S.C. 1153 and 2032 [Counts II and IV]. Counts I and II regarded the rape that allegedly occurred on or about July 20, 1983; Counts III and IV regarded a rape that allegedly occurred on or about October 15, 1983.

On December 6, 1988, the district court granted the government's motion for partial dismissal and dismissed Counts III and IV, as Charlene admitted that the second incident of alleged rape had been fabricated.

On March 16, 1989, a jury found Appellant guilty on Counts I and II. Appellant was sentenced on May 1, 1989, and filed a timely notice of appeal.

II. Discussion.

Appellant argues that the government failed to establish that he violated 18 U.S.C. §§ 1153, 2031 and 2032 within the five-year limitation period of 18 U.S.C. § 3282 (1982).²  We review the evidence in the light most favorable to the government to determine whether a rational jury could have found beyond a reasonable doubt that Appellant committed the offenses within the five-year period. See United States v. Thomas, 893 F.2d 1066, 1071 (9th Cir. 1990).

Appellant argues that the medical evidence presented by the defense at trial proves that Charlene's pregnancy lasted 38 weeks, and that the date of conception, and therefore the date of the offenses, must have occurred more than five years prior to the time the indictment was brought.

We cannot say that the medical evidence in this case was such that the estimates of Charlene's gestation period were anything but that--estimates. Therefore, when viewed in the light most favorable to the prosecution, we find that the medical evidence, in combination with the testimony of Charlene and the jury's own knowledge and experience, was sufficient to support the allegation of the indictment that the rape and carnal knowledge occurred on or about July 20, 1983, and within the statute of limitations.

A claim of prosecutorial misconduct is viewed in the entire context of trial. United States v. Christophe, 833 F.2d 1296, 1300 (9th Cir. 1987). Reversal for a new trial is justified only when the misconduct denies the defendant a fair trial. Id. at 1300-01. "A prosecutor's improper closing argument is not grounds for reversal unless it rises to the level of plain error." United States v. Lopez, 803 F.2d 969, 972 (9th Cir. 1986).

Appellant argues that the prosecutor's reference to the indictment during rebuttal argument was misconduct, and requires the granting of a new trial.

In response to defense counsel's argument that proof that the date of the rape was in July was critical to the prosecution's case, the prosecutor stated:

Why July? Because that's when she was raped. That's why she said July. All this talk about the fourth of July and wouldn't you remember, we didn't say it was around the fourth of July or she would have remembered it. It's July 20. Read the indictment. July 20 is the date that this rape happened on or about.

Further, the prosecutor stated in rebuttal:

I didn't make that up out of thin air, just as I didn't create the indictment. That came from statements and interviews that occurred a long time ago.

The prosecutor's statements in rebuttal do not rise to the level required to grant a new trial. "Every slight excess of a prosecutor does not require that a verdict be overturned and a new trial ordered." United States v. Yarbrough, 852 F.2d 1522, 1539 (9th Cir. 1988).

Even if the prosecutor's argument amounted to misconduct, the court's instructions cured any possible taint. Following argument, the court instructed the jury as follows:

What the lawyers say is not evidence, and must not be treated by you as evidence.

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Likewise, when [the prosecutor] referred to the indictment, which you will have a copy of before you, the indictment is only a piece of paper, and will soon instruct you, and you cannot convict based on anything presented in that indictment.

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The indictment is not evidence. The defendant is presumed to be innocent and does not have to testify or present any evidence to prove innocence. The government has the burden of proving every element of the charge beyond a reasonable doubt. If it fails to do so, you must return a not guilty verdict.

Based on the relatively innocuous comments by the prosecutor in rebuttal, and the curative instructions given by the court, we cannot say that Appellant was deprived of a fair trial.

Appellant's argument that the prosecutor's statements in rebuttal insinuated that certain facts were within his personal knowledge is meritless.

The decision of a district judge whether or not to give a jury instruction is reviewed for an abuse of discretion. United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985). Jury instructions are considered as a whole to determine whether they are misleading or inadequate. United States v. Beltran-Rios, 878 F.2d 1208, 1214 (9th Cir. 1989).

Defense counsel requested that the court give an instruction specifically stating that the government had the burden of proving beyond a reasonable doubt that the rape and carnal knowledge occurred on or after June 29, 1983.

The trial court instructed the jury as to the statute of limitations using the language of 18 U.S.C. 3282, and further instructed the jury that the government had the burden of proving every element of the charge beyond a reasonable doubt.

It was not an abuse of discretion for the trial court to refuse Appellant's proposed instruction, considering the jury instructions as a whole, and specifically considering the instructions on the statute of limitations and the burden of proof.

AFFIRMED.