                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 28 2009

                                                                       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. 08-10202

             Plaintiff - Appellee,               D.C. No. 4:04-cr-02244-CKJ-
                                                 BPV-2
  v.

ANGIE SINGLETERRY,                               MEMORANDUM *

             Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                     Argued and Submitted December 3, 2009
                            San Francisco, California

Before: B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges.

       Defendant Singleterry appeals her conviction for conspiracy to distribute

methamphetamine and possession with intent to distribute methamphetamine. She

argues that district court erred by denying her motion to dismiss the Indictment and

overruling her objection to prosecutorial misconduct during closing argument.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Before trial, the defendant moved to suppress statements made during an

interview conducted by FBI Special Agent Craig Roos. Singleterry claimed that

she confessed to selling methamphetamine only because the government agents

threatened her with calling Child Protective Services (“CPS”) if she did not

confess. At the suppression hearing, Agent Roos and other agents testified that

they never threatened the defendant. An officer from the Bureau of Indian Affairs

(“BIA”) also testified that, to his knowledge, no one had even contacted CPS.

Evidence later surfaced that Agent Roos had in fact called CPS three times. The

government decided not to introduce the confession at trial. The defendant filed a

motion to dismiss the Indictment, which the district court denied.

      Due Process requires dismissal where there has been “outrageous

government conduct.” United States v. Williams, 547 F.3d 1187, 1199 (9th Cir.

2008) (citation omitted). Dismissals are reserved for “only the most intolerable

government conduct.” United States v. Restrepo, 930 F.2d 705, 712 (9th Cir.

1991) (quoting United States v. Bogart, 783 F.2d 1428, 1435 (9th Cir. 1986)).

When reviewing a denial of a motion to dismiss, we must consider the evidence in

the light most favorable to the government and review the district court’s factual

findings for clear error. Williams, 547 F.3d at 1199 n.9. With that perspective in

mind, we conclude that the evidence that Agent Roos contacted CPS, although he


                                          2
did not remember doing so at the suppression hearing, does not clearly establish

that the agents perjured themselves at the suppression hearing or threatened the

defendant with taking away her children if she did not confess. Even if this were

misconduct, that conduct is not so appalling as to warrant dismissal.1 The Ninth

Circuit has upheld denials of motions to dismiss in the face of much more shocking

government action. See United States v. Smith, 924 F.2d 889, 897 (9th Cir. 1991);

United States v. Emmert, 829 F.2d 805, 811-13 (9th Cir. 1987); United States v.

Simpson, 813 F.2d 1462, 1465-71 (9th Cir. 1987); United States v. Williams, 791

F.2d 1383, 1386-87 (9th Cir. 1986). Accordingly, we affirm the denial of the

motion to dismiss.

      The defendant also argues that the prosecutor improperly appealed to the

jury’s emotions during his closing argument. Because “the defendant object[ed] to

[the] alleged prosecutorial misconduct, the standard of review is abuse of

discretion.” United States v. Steele, 298 F.3d 906, 910 (9th Cir. 2002). During his

closing, the prosecutor reviewed evidence that the defendant was accompanied by

children when she sold drugs to an undercover BIA agent. Occasionally he went

further. He remarked, “Kids get in the way of dealing meth, it turns out. . . . Ladies


      1
       Because the Government voluntarily decided not to introduce the
defendant’s confession at trial, she was not prejudiced at trial by any inappropriate
coercive tactics.

                                          3
and gentlem[en], she picks up her kids on the way to a meth deal.” The prosecutor

sounded a similar note during his rebuttal, telling the jury to take the charges very

seriously because “[t]hree of the sales are taking place around a swarm of children.

One case she brings her 12 to 13 year old daughter, another case she brings three

kids, the last one she brings her son.”

      The Ninth Circuit has “consistently cautioned against prosecutorial

statements designed to appeal to the passions, fears and vulnerabilities of the jury.”

United States v. Weatherspoon, 410 F.3d 1142, 1149 (9th Cir. 2005). A prosecutor

may not urge a jury to convict for reasons unrelated to the defendant’s guilt; for

example, to preserve civil order or deter future lawbreaking. See id. (quoting

United States v. Koon, 34 F.3d 1416, 1443 (9th Cir. 1994)). Here, the prosecutor

implicitly criticized the defendant for endangering children and being a bad

mother. His comments were irrelevant and improper. See United States v. Nobari,

574 F.3d 1065, 1077 (9th Cir. 2009) (holding that prosecutor improperly appealed

to the jury to convict the defendant because there was a small boy present during

one of the drug transactions).

      Prosecutorial misconduct does not require reversal if it was harmless. Id. at

1081-82. “When prosecutorial conduct is called in question, the issue is whether,

considered in the context of the entire trial, that conduct appears likely to have


                                           4
affected the jury's discharge of its duty to judge the evidence fairly.” United States

v. Simtob, 901 F.2d 799, 806 (9th Cir. 1990). The prosecutor’s inappropriate

remarks here “were isolated statements, and they were minimal in comparison with

the weight of the evidence presented against” the defendant. Hovey v. Ayers, 458

F.3d 892, 912 (9th Cir. 2006). Because it is unlikely that the prosecutor’s

misconduct affected the jury’s verdict, that misconduct was harmless.

      AFFIRMED.




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