NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 24 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50285

Plaintiff-Appellee, D.C. No. 3:16-cr-02761-BLM-BEN-1 v.

ELISHA PAUL HARLEY, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding

Submitted October 15, 2019** Pasadena, California

Before: NGUYEN and MILLER, Circuit Judges, and VITALIANO,*** District Judge.

Elisha Harley appeals his convictions for assault on a federal officer and

depredation of government property. We have jurisdiction pursuant to 28 U.S.C.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Eric N. Vitaliano, United States District Judge for the Eastern District of New York, sitting by designation. § 1291, and affirm.

1. The district court did not abuse its discretion in admitting Harley’s racist

remarks. The court reversed its initial in limine ruling because numerous changed

circumstances warranted reconsideration of that ruling, including Harley’s reliance

on a lack of intent defense at the first trial. See United States v. Mende, 43 F.3d

1298, 1301–02 (9th Cir. 1995) (affirming admission of evidence probative of the

defendants’ knowledge because their presentation of a lack of knowledge defense

warranted reversal of a prior in limine ruling). Those changed circumstances make

this case different from United States v. Alexander, in which “the only change in

circumstances . . . was the mistrial.” 106 F.3d 874, 876 (9th Cir. 1997). The

probative value of these remarks was also not substantially outweighed by the

danger of unfair prejudice under Federal Rule of Evidence 403. The remarks

offered insight into Harley’s intent, and any prejudice was minimized by the

limiting instructions that were given. Nor were the remarks introduced for an

impermissible purpose. They were introduced to establish Harley’s intent—not to

show that he acted in conformity with a character trait. See Fed. R. Evid.

404(b)(2).

2. The district court also did not abuse its discretion in excluding evidence

of Harley’s later interactions with Border Patrol Agent Sebastian Fernandez. Such

evidence was not relevant to any question before the jury.

2 3. Lastly, there was no prosecutorial misconduct during closing argument.

The government’s reference to Harley’s handcuff “trick,” and its description of

Harley as “wild” and “violent” and a person who “has a problem with Hispanic

border patrol agents,” reasonably described the evidence presented at trial. United

States v. Rude, 88 F.3d 1538, 1548 (9th Cir. 1996) (holding that no prosecutorial

misconduct is committed where the “terms and phrases” the government uses in

closing are “reasonably descriptive” of the evidence adduced at trial). The

government did not engage in improper vouching by describing closing arguments

as providing an opportunity to summarize the evidence presented at trial, or by

characterizing the evidence admitted in this case as sufficient to support a guilty

verdict. See United States v. Tucker, 641 F.3d 1110, 1120 (9th Cir. 2011)

(“Prosecutors can argue reasonable inferences based on the record . . . .”). Nor did

the government impermissibly disparage defense counsel by criticizing her

litigation tactics. United States v. Barragan, 871 F.3d 689, 703 (9th Cir. 2017)

(“Criticism of defense theories and tactics is a proper subject of closing argument.”

(quoting United States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997))).

AFFIRMED.

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