                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           JUN 06 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-50204

              Plaintiff-Appellee,                D.C. No.
                                                 3:12-cr-03814-JLS-1
 v.

ARTURO RIVERA-GALLEGOS,                          MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                   Janis L. Sammartino, District Judge, Presiding

                        Argued and Submitted May 10, 2017
                               Pasadena, California

Before: WALLACE, CHRISTEN, and WATFORD, Circuit Judges.

      1. The prosecution did not commit misconduct by stating during closing

argument that the bloody rocks were located further up the trail from where Arturo

Rivera-Gallegos first encountered Agent Juan Ambriz. Rivera contends that the

prosecution committed misconduct by making that statement without having an



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                            Page 2 of 2
adequate evidentiary basis for doing so. We disagree. A Border Patrol agent

testified at trial that the bloody rocks were located up the trail from where Agent

Ambriz first encountered Rivera. That testimony provided adequate evidentiary

support for the prosecution’s argument. See United States v. Sayetsitty, 107 F.3d

1405, 1409 (9th Cir. 1997).

      2. The prosecution did not sandbag Rivera by raising this argument for the

first time during its rebuttal closing argument. During Rivera’s closing argument,

his counsel argued that the jury should return a not guilty verdict if it believed

Rivera’s account that he turned to run away after seeing Agent Ambriz. The

prosecution permissibly responded to that argument during rebuttal by explaining

why the evidence contradicted Rivera’s account. See United States v. Bagley, 772

F.2d 482, 494–95 (9th Cir. 1985).

      AFFIRMED.
                                                                             FILED
USA v Arturo Rivera -Gallegos 15-50204
                                                                              JUN 06 2017
CHRISTEN, dissenting.                                                     MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


      The majority decides that the prosecution did not misstate the evidence or

sandbag Rivera in rebuttal closing argument, conclusions that seem to me to be

contradicted by the record. Because I would hold that the prosecution misstated

the evidence and exceeded the scope of proper rebuttal, and because the

prosecution did not meet its burden of showing that its misconduct was harmless, I

respectfully dissent.

      Rivera and his companions were confronted by border patrol agents on a

dark desert trail as Rivera’s group attempted to illegally enter the United States.

Rivera did not contest the government’s unlawful reentry charge, but he went to

trial on the government’s allegation that he assaulted a border patrol agent on the

night he was arrested. According to the government’s witnesses, border patrol

agents knew that Rivera’s group was approaching a narrow stretch of trail and they

hid, just off the trail in the dense brush, waiting to arrest the group. At the chosen

time, Agents Gillespie and Ambriz stepped out onto the trail, turned on their

flashlights, and hollered for the group to stop. Rivera was first in the single-file

line of people making their way through the desert, and he testified that when the

agents jumped out, he pivoted in place to run back the way he had come. But

                                          -1-
because there was a person walking closely behind him, Rivera crashed almost

immediately and landed in a heap. It is uncontested that Agent Ambriz wound up

on top of Rivera, and that in the process of being handcuffed, Rivera’s head was

cut on some rocks. Photos taken that night show Rivera with a cut on his head.

Another shows some blood on the trail.

      The agents’ testimony sharply contradicted Rivera’s version of events.

According to them, Rivera responded to the agents by rushing straight ahead and

assaulting Agent Ambriz by charging into him. Up until rebuttal closing

arguments, the case looked like a credibility battle. But the prosecutor made a

statement in rebuttal closing that there was also physical evidence supporting the

government’s recitation of the facts. Rivera’s counsel objected immediately that

the government’s argument misstated the evidence and exceeded the proper scope

of rebuttal. Whether any such evidence had been presented to the jury hinges on

what Agent Gillespie meant when he testified that Rivera’s blood was found on

rocks “up the trail” from where the agents first confronted Rivera and his

companions. The prosecution argues that Agent Gillespie’s testimony was

consistent with the government’s theory that Rivera charged forward, pushed

Agent Ambriz back an unknown number of steps, and that the two landed in a spot

that was behind the place where Agent Ambriz stepped out onto the trail.

                                         -2-
      Unfortunately, the transcript is muddled. What it shows is that various

points of reference and gestures were used by the witnesses as they testified, and

those gestures and references do not translate very well on appeal. (“Q. ‘From

where you and Agent Ambriz were standing, where is [the blood on the rocks]

location in relationship to where you were standing before you came out on the

trail?’ A. ‘I would say about where Ms. Stingley is.’”). Our examination of the

trial transcript does not allow us to see the gestures the witnesses used, but the

district court watched all the evidence as it was presented and it is significant, in

my view, that the district court commented, “I don’t know how anybody knows

where anybody was. . . . We don’t know exactly where everybody jumped out.”

The court was mindful that Rivera and his companions were confronted by border

patrol agents in the dark, on a narrow unlit trail, and that what actually transpired

was likely less than clear to the participants. As the district court observed, “This

is pure and simple credibility.”

      It is not unusual that a portion of a trial transcript is ambiguous, and the

ambiguous passage in this one is not what prompts me to dissent. I part from the

majority because the prosecution made a very different argument in the district

court from the one presented on appeal, and I am persuaded by the government’s

own contemporaneous, in-court concessions about what its evidence did and did

                                           -3-
not show.

      Shortly before closing arguments, the prosecution tried to recall Agent

Ambriz as a rebuttal witness specifically because the government wanted to

introduce evidence about “where [he] came out on the trail.” Defense counsel

objected and the parties discussed the issue at sidebar. The prosecution argued that

the exact location that Agent Ambriz entered the trail was “critical and important”

because it “devastates” Rivera’s testimony that he turned around to head back the

way he had come when he saw Agent Ambriz step onto the trail. The prosecutor

was unequivocal in stating that this evidence was not yet in the record: “We didn’t

say where exactly it was that [Agent Ambriz] came out.” The district court

admonished the prosecution that it should have told the jury “exactly where

everybody jumped out . . . the first time” Agent Gillespie took the witness stand.

The prosecution responded by taking the position that it had not elicited the

testimony the first time Agent Gillespie testified because “[the location of the

blood on the trail] wasn’t relevant then;” i.e. it was not relevant because Rivera had

not yet testified that he turned around in a failed attempt to run away from Agent

Ambriz. The district court was not persuaded that Rivera’s testimony was a

surprise to the prosecution, noting that Rivera explained his version of events in a

recorded statement he gave to the government sometime shortly after his arrest.

                                          -4-
Nevertheless, over defense counsel’s objection, the district court offered to allow

the prosecution to reopen its case in chief so that Agent Ambriz could put a mark

on a map to show where he first encountered Rivera. Despite its argument that this

evidence was both critical and missing from the record, the prosecution declined

the court’s offer and the lawyers proceeded to closing arguments.

      In its rebuttal closing, the government presented a sketched map the

prosecutor prepared after the sidebar but before closing arguments. The prosecutor

used the sketch to illustrate an argument about where the bloody rocks were

located in relation to where Agent Ambriz first stepped out onto the trail. Defense

counsel immediately objected, correctly stressing that this part of the government’s

rebuttal argument was not responsive to Rivera’s closing argument and misstated

the evidence.

      The district court allowed the prosecution to use the sketched map and argue

to the jury that Rivera’s testimony was “not consistent with the physical evidence.”

But the court instructed the jurors to rely on their “independent recollection of

what we all heard here.” The district court further instructed the jurors that “what

the lawyers have said . . . is not evidence. If the facts as you remember them differ

from the way the lawyers state them, your memory of them controls.” When

Rivera moved for a new trial, the motion was denied. The district court concluded

                                          -5-
that any prosecutorial misconduct was harmless.

      “We review district court determinations regarding the proper scope of

rebuttal closing argument for an abuse of discretion.” United States v. Gray, 876

F.2d 1411, 1417 (9th Cir. 1989). We “review the record de novo in order to

determine an error’s harmlessness.” Arizona v. Fulminante, 499 U.S. 279, 295

(1991). “The government bears the burden of persuasion with respect to proving

that the error was harmless.” United States v. Mitchell, 172 F.3d 1104, 1111 (9th

Cir. 1999).

      Having reviewed this record, I find no persuasive argument that the

prosecution’s rebuttal responded to anything said by defense counsel during

closing. Defense counsel’s assertion in closing that the defendant told the truth

does not allow the prosecution to introduce new arguments. See United States v.

Rubinson, 543 F.2d 951, 966 (2d Cir. 1976) (“While the prosecution in rebuttal

may explain why it has not proven certain facts or respond to the interpretation

which the defense has placed on its failure to present evidence, it may not use the

defense’s comments to justify the reference to facts or the assertion of claims

which it could have, but did not, introduce at trial unless defense counsel’s remarks

assert collateral, exculpatory alibis or defenses which the government would not

have been expected to negate previously.”). On this record, I conclude that the

                                         -6-
government held back its blood-on-the-rocks argument for rebuttal rather than

presenting it when Rivera would have had a fair opportunity to respond. See

United States v. Maloney, 699 F.3d 1130, 1150 (9th Cir. 2012) (Gilman, J.,

dissenting), vacated on reh’g en banc, 755 F.3d 1044 (9th Cir. 2014).

      Unspoken gestures and incomplete sentences can cause problems on

appellate review, but in this case we need look no farther than the prosecution’s

own arguments at sidebar to conclude that the exact location where Agent Ambriz

entered the trail was not in evidence. And without that reference point, the defense

had no fair chance to respond to the prosecution’s argument that a photo of a

bloody rock constituted “physical evidence” refuting Rivera’s testimony about

where he made contact with Agent Ambriz.

      In concluding that the defendant was not given a fair chance to respond to

this argument, I rely heavily on the district court’s and lawyers’ contemporaneous

description of the testimony presented to the jury. And I cannot conclude that it is

more probable than not that the prosecutor’s belated argument had no material

effect on the verdict. As in other cases where we have declined to dismiss

prosecutorial misconduct as harmless, “[t]his was a comparatively close case that

boiled down to a battle over credibility.” United States v. Weatherspoon, 410 F.3d

1142, 1152 (9th Cir. 2005). That the prosecution felt the need to use its sketched

                                         -7-
map in rebuttal reinforces that this was a close case. See United States v.

Alcantara-Castillo, 788 F.3d 1186, 1197 (9th Cir. 2015) (“That the supervising

prosecutor at trial—who, unlike us, actually observed the critical testimony and the

jury’s response to the key witnesses—felt motivated to take this risk suggests he

may have had doubts about the outcome.”). Absent an argument sprung upon the

defense in rebuttal, the jury may have found Rivera credible and acquitted him of

assaulting a federal officer. “Evidence matters; closing argument matters;

statements from the prosecutor matter a great deal.” United States v. Kojayan, 8

F.3d 1315, 1323 (9th Cir. 1993). For the foregoing reasons, I respectfully dissent.




                                         -8-
