                                                                           FILED
                           NOT FOR PUBLICATION                              APR 08 2010

                                                                       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. 06-10369

             Plaintiff - Appellee,               D.C. No. CR-03-00371

  v.
                                                 MEMORANDUM *
MICHAEL DENNIS WILLIAMS,

             Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 06-10378

             Plaintiff - Appellee,               D.C. No. CR-03-00371-13-MCE

  v.

KENNETH DEANDRE RODGERS,

             Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 06-10381

             Plaintiff - Appellee,               D.C. No. CR-03-00371-6-MCE

  v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
SHONDOR JANELL ARCENEAUX,

             Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 08-10042

             Plaintiff - Appellee,               D.C. No. CR-03-00371-MCE

  v.

DEREK LADONTE MADDOX,

             Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Eastern District of California
                  Morrison C. England, District Judge, Presiding

                      Argued and Submitted February 8, 2010
                            San Francisco, California

Before: O’SCANNLAIN, TROTT and PAEZ, Circuit Judges.

       Michael Dennis Williams, Shondor Janell Arceneaux, and Kenneth Deandre

Rodgers (collectively “Defendants”) appeal their jury convictions of armed bank

robbery in violation of 18 U.S.C. § 2113(a) and (d) and use or possession of a

firearm in relation to a crime of violence in violation of § 924(c)(1). Derek

Maddox, tried separately, also appeals his jury conviction of armed bank robbery



                                          2
and use or possession of a firearm in relation to a crime of violence in violation of

the aforementioned statutes. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

      Defendants Williams, Arceneaux, and Rodgers

1.    Defendants Williams, Arceneaux, and Rodgers jointly argue that the

prosecution improperly vouched for the government’s cooperating witnesses

during closing argument and that this vouching was plain error requiring reversal.

      When there is an allegation of vouching, we must determine (1) whether the

conduct is vouching, (2) whether the misconduct is cured by instructions to the

jury, and (3) whether the closeness of the case requires reversal. United States v.

Weatherspoon, 410 F.3d 1142, 1145-46, 1151-52 (9th Cir. 2005).

      During rebuttal, in response to an attack on the credibility of the

government’s cooperating witnesses, the prosecutor argued: “The Judge has been

present for the whole entire trial as well as I have. And I can assure you that

neither one of us are that gullible that we’re going to fall for a bunch of lies.” This

statement suggests not only that the prosecutor and judge will and have assessed

the credibility of the government’s witnesses—a job for the jury alone—but also

that the prosecutor and judge are working together. We agree with defendants that

the prosecutor’s statements constituted impermissible vouching. See United States


                                           3
v. Kerr, 981 F.2d 1050, 1053 (9th Cir. 1992) (noting that a prosecutor must not

invoke the authority of the court and that such vouching impermissibly casts the

court as an active, albeit silent, partner in the prosecutorial enterprise).

       The court’s jury instructions did not address the specific vouching

statements of the prosecutor, but the court instructed the jury on the factors to

consider in judging witness credibility. As part of these instructions, the jury was

instructed in the use of testimony given by cooperating witnesses and admonished

to consider such witnesses’ testimony “with great caution” and “with greater

caution than that of other witnesses.” Although the court’s jury instructions did

not cure the prosecutor’s “vouching,” the jury was properly admonished to view

the cooperating witness testimony with “great caution.”

       As for the third factor, the case was not close. The testimony of the

cooperating witnesses was corroborated by the testimony of government witness

Dakina Sudduth.

       Because this was not a close case and in light of the court’s instructions, we

conclude that the statements of the prosecutor, although error, did not seriously

affect the fairness of the trial or constitute plain error requiring reversal. See

United States v. Molina, 934 F.2d 1440, 1446 (9th Cir. 1991).




                                            4
2.    Defendants allege additional prosecutorial misconduct. Specifically,

Defendants argue that the prosecutor’s closing argument in which he asked the jury

to convict defendants to “let justice come to the victims” and analogized the

usefulness of cooperating witness testimony in this case to the use of a cooperating

witness in an unrelated case involving the murder of a California Highway Patrol

Officer was calculated to inflame the jury.

      It is improper for a prosecutor to use argument that would inflame the

passions or prejudices of the jury. Viereck v. United States, 318 U.S. 236, 247-48

(1943). Although we do not condone the argument used by the prosecutor in this

case, plain error is a high bar. In light of all the evidence, we conclude that the

statements made by the prosecutor did not seriously affect “the fairness, integrity

or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S.

461, 469 (1997) (internal quotation marks omitted). The prosecutor’s statements

do not warrant reversal.

3.    Next, Defendants argue that the district court abused its discretion and

violated Defendants’ Fifth and Sixth Amendment rights by permitting the

government to present the direct testimony of three cooperating witnesses without

immediate cross-examination of each witness. Defendants argue that this




                                           5
procedure was prejudicial because, on the eve of a four-day recess, the jurors only

heard the government witnesses’ version of Defendants’ criminal conduct.

      The Fifth Amendment protects a defendant’s due process right to a fair trial,

United States v. Straub, 538 F.3d 1147, 1161 (9th Cir. 2008), and the Sixth

Amendment guarantees the right of a defendant in a criminal trial to confront and

cross-examine the witnesses against him, Davis v. Alaska, 415 U.S. 308, 315

(1974). The district court, however, has broad discretion to “exercise reasonable

control over the mode and order of interrogating witnesses and presenting

evidence.” Fed. R. Evid. 611(a).

      Here, the district court permitted the government to put on direct testimony

of three of its witnesses without intervening cross-examination. The delay between

direct and cross-examination was, in large part, due to the government’s strict

adherence to its disclosure obligations under the Jencks Act, 18 U.S.C. § 3500. To

allow Defendants sufficient time to review the Jencks material that the government

disclosed after each witness testified, the court deferred cross-examination, but

proceeded with the direct-examination of the three witnesses.

      In light of the broad discretion afforded the trial court in determining the

order of proof and presentation of evidence, the government’s strict compliance

with the Jencks Act, and the fact that Defendants fully cross-examined all three


                                          6
cooperating witnesses, the trial court exercised reasonable control over the order of

examining witnesses. The court did not abuse its discretion in permitting the in

seriatim direct-examination of three government witnesses.

4.    In a related argument, Defendants contend that it is common practice for the

government to provide early discovery of Jencks Act material to defendants. Here,

the government first disclosed the Jencks material after each witness testified. This

“delay,” Defendants argue, prevented them from preparing effective cross-

examination of the cooperating witnesses in violation of Defendants’ Sixth

Amendment rights.

      Defendants’ Jencks argument fails because the Jencks Act is clear.

Irrespective of common practice, the defense is entitled to Jencks material only

after the government’s witness, to whom the documents relate, has testified. 18

U.S.C. § 3500; see also United States v. Barker, 988 F.2d 77, 79 (9th Cir. 1993).

The court’s failure to require the production of the Jencks material before the direct

testimony of the government’s witnesses was not an abuse of discretion. See

United States v. Alvarez, 358 F.3d 1194, 1210-11 (9th Cir. 2004).

5.    Defendants’ argue that the district court erroneously denied their request for

a hearing to determine whether the government made promises to witness Dakina

Sudduth in exchange for her testimony.


                                          7
      Sudduth was romantically involved with defendant Arceneaux at the time of

the robberies, and she rode with Arceneaux in one of the two vehicles to the

location of the Financial Center Credit Union robbery. Furthermore, Sudduth

rented the rooms at the Motel 6 where Defendants stayed the night before the

Financial Center Credit Union robbery. Defendants argue that Sudduth could have

been charged as an accomplice in this case.

      In a criminal case, the prosecution has a duty to disclose all material

evidence that is favorable to the accused. See Giglio v. United States, 405 U.S.

150, 154-55 (1972) (holding that an undisclosed deal with a key prosecution

witness was a material non-disclosure). Here, the government maintains that there

was insufficient evidence to charge Sudduth as an accomplice and that no deal was

made in exchange for her testimony.

      Without any evidence that Sudduth was offered compensation or

consideration for her testimony, Defendants have failed to satisfy their burden of

raising a substantive claim. See United States v. Cooper, 173 F.3d 1192, 1203 (9th

Cir. 1999) (holding that defendants raising a Giglio claim must present more than

circumstantial evidence of an immunity agreement to justify reversal). The district

court did not err by denying Defendants a hearing on whether the government

offered Sudduth a deal in exchange for her testimony.


                                          8
6.     Next, the defense requested a perjury instruction as it applied to cooperating

witness Dwayne Slater. The government opposed the instruction. The trial court

declined to give a specific instruction, and Defendants now argue that it was error

to refuse Defendants’ requested jury instruction.

       “A criminal defendant has a constitutional right to have the jury instructed

according to his theory of the case if it has some foundation in evidence.” United

States v. Johnson, 459 F.3d 990, 993 (9th Cir. 2006) (internal quotation marks

omitted). However, “[i]t is not reversible error to reject a defendant’s proposed

instruction on his theory of the case, if other instructions, in their entirety,

adequately cover that defense theory.” United States v. Dees, 34 F.3d 838, 842 (9th

Cir. 1994).

       Here, the trial court’s instruction to the jury included several admonishments

regarding the credibility of cooperating witnesses. The instruction did not single

out Slater, but it did name him along with the other cooperating witnesses and

informed the jury that their testimony should be considered with great caution.

Given the multiple cautions contained in the jury instructions, there was no error in

refusing the requested jury instruction.




                                             9
7.    Defendants argue that even if no single trial error examined in isolation

warrants reversal, the cumulative effect of multiple errors does. See United States

v. Wallace, 848 F.2d 1464, 1475 (9th Cir. 1988).

      As discussed above, the only alleged error that amounted to an actual error

was the prosecutorial vouching. The vouching was not plain error when

considered independently, nor does it rise to the level of plain error when

considered in the context of the other alleged errors. See United States v. Sager,

227 F.3d 1138, 1149 (9th Cir. 2000) (holding that “[o]ne error is not cumulative

error”).

      Defendant Arceneaux

8.    Defendant Arceneaux was convicted of three robberies. On appeal, he

argues that there was insufficient evidence to convict him of either the Financial

Center Credit Union robbery or the Farmers and Merchants Bank robbery.

      When evaluating a claim of the sufficiency of the evidence to support a

conviction, the reviewing court must decide “whether, after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979).




                                          10
       Here, Sudduth testified to Arceneaux’s involvement in the Financial Center

Credit Union robbery, and Slater testified to Areceneaux’s involvement in the

Farmers and Merchants Bank robbery. Furthermore, to find Arceneaux guilty of

armed bank robbery, it was enough to find that he aided and abetted in the

commission of the crime. See 18 U.S.C. § 2(a).

       Based on Sudduth’s and Slater’s testimony, a reasonable trier of fact could

find the essential elements of armed bank robbery of the Financial Center Credit

Union and the Farmers and Merchants Bank with the use of a firearm. See

Jackson, 443 U.S. at 319. Therefore, Arceneaux’s sufficiency of the evidence

claim fails.

       Defendant Maddox

9.     Defendant Maddox argues that the prosecutor inappropriately intimidated

government witness Sudduth with a perjury warning. Maddox further argues that

the warning affected Sudduth’s testimony and denied Maddox a fair trial.

       “It is well established that substantial government interference with a

defense witness’ free and unhampered choice to testify amounts to a violation of

due process.” Earp v. Ornoski, 431 F.3d 1158, 1170 (9th Cir. 2005) (internal

quotation marks omitted). Perjury warnings, however, are not improper per se and

“the Sixth Amendment is not implicated every time a prosecutor or trial court


                                          11
offers advice regarding the penalties of perjury.” United States v. Vavages, 151

F.3d 1185, 1189 (9th Cir. 1998) (internal quotation marks omitted).

      Here, the government warned its own witness, and the warning was

relatively brief and factual. Furthermore, despite the warning, Sudduth testified at

length and, regardless of her alleged fears, Sudduth largely recanted her previous

testimony where she implicated Maddox. We conclude that the prosecutor’s

warning did not substantially interfere with Maddox’s right to a fair trial.

10.   Finally, Maddox argues that the district court committed reversible error

when it denied Maddox the opportunity to cross-examine Sudduth on the subject of

threats and the reason for her distressed demeanor in court.

      In determining whether a defendant’s right to cross-examination was

violated, we consider (1) whether the excluded evidence was relevant; (2) whether

there were other legitimate interests outweighing the defendant’s interest in

presenting the evidence; and (3) if the exclusion of evidence denied the jury

sufficient information to appraise the biases and motivations of the witness.

United States v. Larson, 495 F.3d 1094, 1103 (9th Cir. 2007) (en banc).

      Even assuming that Maddox’s right to cross-examination was violated, we

conclude that any error was harmless beyond a reasonable doubt. See id. at 1107-

08.


                                          12
      First, Sudduth’s testimony was corroborated by the detailed testimony of

cooperating witness Demond Vaughn and by the testimony of Maddox himself.

During an FBI interview prior to trial, Maddox admitted he participated in the

robbery and identified himself in a picture taken during the robbery inside the

credit union. Second, Maddox extensively cross-examined Sudduth during trial,

and Maddox specifically asked her which account of the facts was the true account.

At that point, Sudduth largely discredited her earlier account of events and her

previous identification of Maddox.

      In sum, in light of the evidence corroborating Sudduth’s testimony and the

overall strength of the prosecution’s case, Maddox fails to establish harmless error.

The district court did not commit reversible error when it restricted Maddox’s

cross-examination of Sudduth.

      AFFIRMED.




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