                                                                               FILED
                            NOT FOR PUBLICATION                                 DEC 02 2011

                                                                            MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 11-30010

              Plaintiff - Appellee,               D.C. No. 4:10-cr-00063-SEH-1

  v.
                                                  MEMORANDUM*
RICHARD SILVERWHIP ST. MARKS,

              Defendant - Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                     Argued and Submitted November 14, 2011
                                Portland, Oregon

Before: FISHER, PAEZ, and CLIFTON, Circuit Judges.

       Richard St. Marks appeals his conviction for burglary. Without deciding

whether the district court’s jury instructions correctly described Montana law’s

knowledge requirement, we hold that any error in the instructions was harmless.

We also hold that the district court did not abuse its discretion by interrupting the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
defense counsel’s closing statement to strike what the court considered a “golden

rule argument.” We therefore affirm.

      Defendant distinguishes between knowingly and unlawfully entering the

victims’ house and knowing of the unlawfulness of that entry, but since the

government proved both kinds of knowledge beyond a reasonable doubt, that

distinction makes no difference in this case. Defendant concedes that he did not in

fact have permission to enter the victims’ house and overwhelming evidence shows

he knew that: the door to the house was forced open, Defendant threatened the

house’s inhabitants, and Defendant fled when he believed the police were on their

way. Moreover, there is no suggestion that Defendant’s entry was the result of

mistake or incapacity. Because the circumstances leave no reasonable doubt that

Defendant knew his entry was unauthorized, we hold that any misstatement of

Montana law’s knowledge requirement was harmless. See United States v. Cherer,

513 F.3d 1150, 1155 (9th Cir. 2008).

      Defendant also challenges the district court’s interruption of his attorney’s

request during closing statement that the jurors consider whether they would

“convict a family member based on the testimony of [the government’s]

witnesses.” The parties dispute whether or not this statement was a prohibited

“golden rule argument,” a label that is more typically attached to requests by a

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prosecutor or plaintiff’s attorney that the jurors step into the shoes of the victim or

plaintiff. See, e.g. Fields v. Woodford, 309 F.3d 1095, 1109 (9th Cir. 2002).

      We need not decide that issue. We review for abuse of discretion the district

court’s restrictions on closing argument, and will not overturn a conviction based

on interruption of closing argument unless “the record ‘discloses actual bias on the

part of the trial judge or leaves the reviewing court with an abiding impression that

the judge’s remarks . . . projected to the jury an appearance of advocacy or

partiality.’” United States v. Mares, 940 F.2d 455, 464 (9th Cir. 1991) (quoting

United States v. Mostella, 802 F.2d 358, 361 (9th Cir. 1986)). Here, the record

discloses no actual or apparent bias. The district court’s remarks did not chastise

defense counsel or derail his presentation. The court simply noted that the

argument was out of bounds and then allowed him to proceed. Defense counsel

points to the fact that the district court reprimanded him the previous day on his

handling of an unrelated issue, but those remarks conveyed no animus against

defense counsel or his client, and were in any case made outside the presence of

the jury. We therefore hold that the district court did not abuse its discretion,

irrespective of whether defense counsel’s statements may have crossed into

forbidden golden rule territory.

      AFFIRMED.

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