                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 11-50311
           Plaintiff-Appellee,
                                          D.C. No.
              v.                    3:10-cr-02803-DMS-1

JOHN R. MALONEY,
         Defendant-Appellant.                ORDER


      Appeal from the United States District Court
         for the Southern District of California
       Dana M. Sabraw, District Judge, Presiding

           Argued and Submitted En Banc
    September 19, 2013—San Francisco, California

                   Filed February 28, 2014

Before: Alex Kozinski, Chief Judge, and Harry Pregerson,
Sidney R. Thomas, M. Margaret McKeown, Kim McLane
Wardlaw, William A. Fletcher, Richard A. Paez, Johnnie
 B. Rawlinson, Richard R. Clifton, N. Randy Smith and
          Andrew D. Hurwitz, Circuit Judges.

               Order by Judge Wardlaw
2                  UNITED STATES V. MALONEY

                           SUMMARY*


                          Criminal Law

    The en banc court granted the United States Attorney’s
motion to reverse a conviction for knowing possession of
marijuana with intent to distribute, vacate the sentence, and
remand to the district court, in a case in which the United
States Attorney represented that she and several senior
attorneys in her office had reviewed the video of the en banc
oral argument and had reconsidered their position regarding
the propriety of the prosecutor’s argument in rebuttal during
closing argument in the district court.

   The en banc court commended the United States
Attorney, emphasizing that “The prosecutor’s job isn’t just to
win, but to win fairly, staying well within the rules.”

        Judge N.R. Smith concurred in the result only.


                            COUNSEL

John C. Lemon (argued), San Diego, California, for
Defendant-Appellant.

Laura E. Duffy, United States Attorney, Bruce R. Castetter
(argued), Assistant United States Attorney, Chief, Appellate
Section, Criminal Division, David P. Curnow, Assistant
United States Attorney, San Diego, California, for Plaintiff-
Appellee.

    *
   This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               UNITED STATES V. MALONEY                     3

                          ORDER

WARDLAW, Circuit Judge:

    John Maloney appeals his conviction by jury for knowing
possession of marijuana with intent to distribute in violation
of 21 U.S.C. § 841(a)(1). Maloney was stopped at a Border
Patrol checkpoint in Imperial County, California, while
driving a tractor-trailer with long-haul capacity. A drug
detecting canine alerted to the bunk portion of the cab behind
the driver’s seat, where Border Patrol agents found 112
packages of marijuana containing 321.33 pounds of the
substance. As is typical in these border-crossing drug
trafficking cases, knowledge was the only contested element
of the charge. And, like many similarly situated defendants
before him, Maloney testified that he did not know there was
marijuana in the cab; rather, he was duped into believing he
was hired to transport a load of Clorox from Riverside,
California, to Las Vegas, Nevada, drop it there, and then
drive back to El Centro, California, and from there to Blythe,
California, to pick up another load—a trip of approximately
three to four days.

    Though there was never any evidence introduced
regarding whether Maloney had luggage with him on the trip,
for the first time in rebuttal during closing argument, the
prosecutor argued that Maloney must have lied about the
details of his trip because he had no luggage with him when
he was apprehended, a fact from which the jury could infer
knowledge. Maloney’s counsel moved for surrebuttal to
counter this new argument; the trial court denied the motion.
Maloney’s counsel made a second motion for surrebuttal,
4                  UNITED STATES V. MALONEY

which was also denied. Maloney’s counsel next sought a
mistrial, which was denied as well.1

    A divided panel of our court affirmed Maloney’s
conviction. A majority of active, nonrecused judges voted to
rehear this appeal en banc. We did so on September 19,
2013, and then took the case under submission.

     On October 7, 2013, the United States Attorney for the
Southern District of California, Laura Duffy, filed a Motion
to Summarily Reverse the Conviction, Vacate the Sentence
and Remand to the District Court. In that motion, the United
States Attorney represented that she and several senior
attorneys in her office had reviewed the video of the en banc
oral argument and reconsidered the closing arguments made
in the district court. They thereafter concluded that “no
reference should have been made to luggage in rebuttal
argument.”2 The United States Attorney’s Office also stated
that it planned to “use the video of the [en banc] argument as
a training tool to reinforce the principle that all Assistant U.S.
Attorneys must be aware of the rules pertaining to closing


    1
   On appeal, Maloney argued that the district court abused its discretion
by denying his motions for surrebuttal, because the prosecutor improperly
raised new arguments in his closing argument. The Government argued
that the prosecutor’s closing argument was proper as commentary
addressing the absence of evidence. In the alternative, the Government
argued that any error in the prosecutor’s closing argument did not warrant
reversal due to the overwhelming evidence of Maloney’s guilt.
    2
   To his credit, the trial prosecutor admitted at oral argument before the
three-judge panel that he “sandbagg[ed]” the defense by waiting for
rebuttal to bring up the luggage argument, but he did not seem to
appreciate that this conduct could be deemed improper. See United States
v. Maloney, 699 F.3d 1130, 1150 (9th Cir. 2012) (Gilman, J., dissenting).
                    UNITED STATES V. MALONEY                     5

argument and must make every effort to stay well within
these rules.”

    We commend United States Attorney Laura Duffy for
moving to summarily reverse the conviction, vacate the
sentence, and remand to the district court. A prosecutor “is
the representative not of an ordinary party to a controversy,
but of a sovereignty whose obligation to govern impartially
is as compelling as its obligation to govern at all; and whose
interest, therefore, in a criminal prosecution is not that it shall
win a case, but that justice shall be done.” Berger v. United
States, 295 U.S. 78, 88 (1935). More succinctly: “The
prosecutor’s job isn’t just to win, but to win fairly, staying
well within the rules.” United States v. Kojayan, 8 F.3d 1315,
1323 (9th Cir. 1993).

   Accordingly, we GRANT the motion to reverse the
conviction, vacate the sentence, and remand to the district
court.3

  REVERSED,                SENTENCE             VACATED,      and
REMANDED.




 3
     Judge N.R. Smith concurs in the result only.
