United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill, Chief Judge United States District Court
Court has before it Defendant's Motion for New Trial or
Declaration of Mistrial (Dkt. 42). For the reasons explained
below, the Court will deny the motion.
asks for a new trial pursuant to Federal Rule of Criminal
Procedure 33. Rule 33 states that “[u]pon the
defendant's motion, the Court may vacate any judgment and
grant a new trial if the interest of justice so
requires.” Fed.R.Crim.P. 33(a). The power to grant a
motion for a new trial “is much broader than its power
to grant a motion for judgment of acquittal.” U.S.
v. Alston, 974 F.2d 1206, 1211 (9th Cir.1992).
“The district court need not view the evidence in the
light most favorable to the verdict; it may weigh the
evidence and in so doing evaluate for itself the credibility
of the witnesses.” Id. “If the court
concludes that, despite the abstract sufficiency of the
evidence to sustain the verdict, the evidence preponderates
sufficiently heavily against the verdict that a serious
miscarriage of justice may have occurred, it may set aside
the verdict, grant a new trial, and submit the issues for
determination by another jury.” Id. at
states two reasons why he is entitled to a new trial. First,
he suggests that, in his opening statement and closing
argument, the prosecutor overstated the evidence by
suggesting Gomez shot the victim in the back of the head
execution style. Second, he argues that the prosecutor
improperly vouched for the government's case and
the first argument, during his opening statement the
prosecutor did indicate that the evidence would show that
Gomez shot the victim in the back of the head. More
specifically, he said that Gomez shot the victim in the back
of the head “right below the ear.” Later in his
opening statement, he indicated that Gomez pointed the gun at
the back of the victim's head, and that he fired the gun
into the victim's neck, killing him. In his closing
argument, he also stated that Gomez pointed the gun at the
back of the victim's head and pulled the trigger.
prosecutor also described in some detail the circumstances
surrounding the shooting. He told the jury about other
individuals at the residence where the shooting occurred, he
explained that there were drugs and alcohol involved, and he
talked about what the individuals were doing before and after
the shooting. The prosecutor did not state that Gomez simply
shot the victim “execution style.” Nor did he
infer that the slaying was “execution style”
without giving context to the events of the shooting.
these circumstances, the Court finds that the totality of the
government's opening statement and closing argument did
not overstate the evidence in a way that prejudiced Gomez.
The exhibits and medical testimony at trial showed that the
victim was, in fact, shot below the ear in the neck area.
There was also medical testimony that there were no defense
wounds, and that the gun was in contact with the victim when
it was fired. And there was witness testimony indicating that
the victim was looking down when Gomez shot him from behind.
Thus, although the prosecutor's reference to the
“back of the head” may have been somewhat
technically inaccurate, it was not misleading or prejudicial
- especially where government counsel specifically included
language that the shot was fired “right below the
ear” and in the “neck.” Thus, the interest
of justice does not require a new trial based upon the
“back of the head” language.
the vouching argument, the Court sua sponte raised
this issue during trial. Specifically, the Court was
concerned with the prosecutor's statement that while he
did not know why Gomez shot the victim, he did know about
some facts surrounding the shooting. The parties agreed that
the Court should give a curative instruction, and the Court
gave one. In the instruction, the Court reminded the jury
about one of its opening instructions, which states that
statements and arguments of the attorneys, questions and
objections of the attorneys, and testimony that the Court
instructs the jury to disregard is not evidence and they must
not consider them as evidence. The Court then explained that
during his opening statement, the prosecutor made statements
to the effect that he knew Gomez walked into the room with a
sawed-off shotgun, that he knew that Gomez told the victim he
should F---ing shoot him, and that he knew that Gomez pointed
the gun at the back of the victim's head. The Court
instructed the jury that these are the types or statements of
an attorney which are not to be considered as evidence and
that they were to disregard these statements. The Court told
the jury that it was improper for the prosecutor to suggest
that he knew anything about the facts of the case from his
own personal knowledge.
Court finds that the curative instruction was sufficient.
This is particularly true where Gomez never disputed that he
shot and killed the victim. In fact, in his closing argument,
defense counsel acknowledged that Gomez was guilty of
manslaughter, arguing only that he was not guilty of
second-degree murder. Under these circumstances, the interest
of justice does not require a new trial.