                                                                           FILED
                           NOT FOR PUBLICATION                              SEP 07 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 12-30008

              Plaintiff - Appellee,              D.C. No. 4:11-cr-00056-SEH-1

  v.
                                                 MEMORANDUM *
TYRELL JAMES HENDERSON,

              Defendant - Appellant.



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

                      Argued and Submitted August 28, 2012
                               Seattle, Washington

Before: SCHROEDER and GOULD, Circuit Judges, and FRIEDMAN, Senior
District Judge.**

       Tyrell James Henderson appeals from his conviction for Assault on a

Federal Officer, in violation of 18 U.S.C. §§ 111(a), (b). Henderson challenges the




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Paul L. Friedman, Senior United States District Judge
for the District of Columbia, sitting by designation.
district court’s interruption of his counsel’s closing argument, questioning of

defense witness Isaac Saenz after the government’s cross-examination of Saenz,

and decision to call a ten-minute recess in the middle of Agent Dan Love’s

testimony.

      We review Henderson’s appeal of the district court’s interruption of defense

counsel’s closing argument for abuse of discretion. United States v. Lazarenko,

564 F.3d 1026, 1043 (9th Cir. 2009). The district court interrupted when defense

counsel referred to the lack of a video camera on the police vehicle. The court was

rightly concerned that counsel would describe what a camera might have shown

and then argue facts that were outside the record. There was no abuse of

discretion.

      Henderson did not object to the district court questioning Saenz and calling a

recess in the middle of Love’s testimony; we review those issues for plain error.

United States v. Morgan, 376 F.3d 1002, 1007 (9th Cir. 2004). The district court

did not plainly err in questioning the witness, whose testimony had been confusing.

The questions were clarifying in nature. The court’s later observation, that one

witness must have lied, was intended for counsel and was made outside the

presence of the jury.




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      Calling a ten-minute recess during the middle of the afternoon, in the midst

of Agent Love’s testimony, was reasonable and within the court’s discretion.

Defendant has not shown that there was any more appropriate time for an

afternoon recess or that he was prejudiced in any way by the court’s action.

      AFFIRMED.




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