                                                                                 FILED
                            NOT FOR PUBLICATION                                    MAY 08 2015

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



                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                         No. 13-10382

              Plaintiff-Appellee,                 D.C. No. 4:12-cr-00172-JGZ

  v.

TED EARL SEVEREID,
                                                  MEMORANDUM*
              Defendant-Appellant.


                   Appeal from the United States District Court
                             for the District of Arizona
                    Jennifer G. Zipps, District Judge, Presiding

                       Argued and Submitted March 11, 2015
                            San Francisco, California

Before: W. FLETCHER, DAVIS,** and CHRISTEN, Circuit Judges.

       Defendant-Appellant Ted Severeid, an inmate in a Bureau of Prisons facility,

was indicted by a grand jury on one count of assault on a federal officer in

violation of 18 U.S.C. §§ 111(a)(1) and (b). After a first trial that ended in a

mistrial, a second jury convicted him. The district court sentenced him to 120

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Andre M. Davis, Senior Circuit Judge for the United
States Court of Appeals for the Fourth Circuit, sitting by designation.
months in prison (consecutive to any outstanding sentence), three years of

supervised release, and restitution in the amount of $1,874.25. He now appeals,

challenging, inter alia, the prosecutor’s closing argument as containing several

instances of improper vouching. We agree with Severeid that the prosecution’s

vouching in closing argument constituted plain error. Accordingly, we reverse.

      1. During closing argument, the prosecution made several statements that

Severeid challenges as instances of improper vouching. These include:

      The prosecutor stated: “[Officer] Nemcik is not a racist. He’s a good, honest
      officer who puts his life on the line every day in that facility for the good
      people in society.”

      The prosecutor told the jury he could not see the defendant’s tattoo in the
      video recording of the defendant’s injury assessment.

      The prosecutor referred to Severeid and Ault (Severeid’s cell mate) as “con
      men” and stated that “they have to be very good liars” when arguing that
      Severeid and Ault were lying about their claims of Officer Nemcik’s racism
      and the choking incident.

      When explaining the poor quality of a videotape that had captured the
      altercation between Officer Nemcik and Severeid, the prosecutor stated: “It
      was presented to you, ladies and gentlemen, because the United States
      presents all the evidence in its cases, good, bad, and indifferent, and we
      disclose all the evidence, good, bad, and indifferent.”

Because Severeid’s counsel failed to object to any of the statements above, we

review for plain error. United States v. Dorsey, 677 F.3d 944, 953 (9th Cir. 2012).

“Under plain-error review, reversal is proper only if there is (1) an error that is (2)


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clear or obvious, (3) affects substantial rights, and (4) ‘seriously affects the

fairness, integrity or public reputation of judicial proceedings.’” Id. (quoting

United States v. Marcus, 560 U.S. 258, 262 (2010)).

      2. “Vouching occurs when a prosecutor ‘place[s] the prestige of the

government behind the witness or . . . indicate[s] that information not presented to

the jury supports the witness’s testimony.’” United States v. Rangel-Guzman, 752

F.3d 1222, 1224 (9th Cir. 2014) (alteration in original) (quoting United States v.

Roberts, 618 F.2d 530, 533 (9th Cir. 1980)). As we stated in United States v.

Necoechea:


             [There is] no bright-line rule about when vouching will result in
      reversal. Rather, we consider a number of factors including: the form of
      vouching; how much the vouching implies that the prosecutor has extra-
      record knowledge of or the capacity to monitor the witness’s truthfulness;
      any inference that the court is monitoring the witness’s veracity; the degree
      of personal opinion asserted; the timing of the vouching; the extent to which
      the witness’s credibility was attacked; the specificity and timing of a
      curative instruction; the importance of the witness’s testimony and the
      vouching to the case overall.


986 F.2d 1273, 1278 (9th Cir. 1993). In the context of plain error review, we “then

balance the seriousness of the vouching against the strength of [any] curative

instruction and closeness of the case.” Id.

      3. While Severeid challenges several of the prosecutor’s statements as


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instances of improper vouching, we focus on the prosecutor’s statements about the

respective credibility of Severeid and his witness, Ault, on the one hand, and

Officer Nemcik, on the other hand. We find troubling the prosecutor’s argument,

especially in light of the fact that the jury was tasked with a close credibility

contest. In particular, the statement that Officer Nemcik, the prosecution’s own

witness, was an “honest officer” is the paradigmatic example of impermissible

vouching. See United States v. Kerr, 981 F.2d 1050, 1053 (9th Cir. 1992); see also

United States v. Wright, 625 F.3d 583, 610 (9th Cir. 2010) (“‘[V]ouching typically

involves the prosecution bolstering the testimony of its own witness.’” (quoting

United States v. Nobari, 574 F.3d 1065, 1078 (9th Cir. 2009))). This is all the

more disconcerting considering that, at oral argument, counsel admitted that the

prosecutor handling the case was an experienced prosecutor. This comment was

not an instance in which the prosecutor merely drew upon specific testimonial or

other evidence to demonstrate the officer’s consistency or the reliability of his

testimony. Rather, viewed objectively, the prosecutor’s statement expressed an

impermissible personal opinion of his belief in Office Nemcik’s credibility. See

Wright, 625 F.3d at 610.

      Furthermore, this and the other challenged statements were unaccompanied

by any curative instruction by the court. See Necoechea, 986 F.2d at 1278; United


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States v. Sanchez, 659 F.3d 1252, 1260 (9th Cir. 2011) (concluding that a

prosecutor’s statements constituted impermissible vouching for the credibility of

his witnesses and that this improper vouching was plain error considering that the

case was a close one that “came down to a battle over credibility” (internal

quotation marks omitted)). As mentioned, the outcome of the case hinged on

witness credibility. The jurors had to decide whether they believed, beyond a

reasonable doubt, Officer Nemcik’s account of the altercation – in which Severeid

was the aggressor – or whether Severeid’s account – in which Officer Nemcik, an

alleged racist, purposefully targeted Severeid and violently grabbed him by the

throat, prompting Severeid to respond in an act of self-defense – was sufficiently

plausible to create a reasonable doubt. This credibility battle was clearly close; the

jury in the first trial was unable to reach a unanimous verdict. Furthermore, during

the second trial, the jury sent a note questioning what to do if they could not come

to a unanimous agreement. Because this was a close case that centered on

credibility, we cannot “comfortably assume that the jury would have convicted

[Severeid] absent the prosecutor’s misconduct.” Sanchez, 659 F.3d at 1260. We

therefore conclude that the prosecutor’s impermissible vouching was plain error

that prejudicially deprived Severeid of a fair determination of the cause by the jury.

      REVERSED AND REMANDED FOR A NEW TRIAL.


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