United States v. Dennis Graves

MEMORANDUM

Dennis Graves appeals his jury conviction for bank robbery and his subsequent sentence. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a). We affirm.

1. Under either abuse of discretion or de novo review, we conclude that the prosecutor’s closing statements did not constitute prosecutorial misconduct.

When the prosecutor makes comments about the reasonable doubt standard in closing argument, this will “not constitute reversible error unless the[ statements] are so gross as probably to prejudice the defendant....” United States v. Tucker, 641 F.3d 1110, 1121 (9th Cir.2011). We analyze the prosecutor’s statements in “context,” and viewed in light of other statements at trial, to determine whether it was reasonably likely that the jury misapplied the reasonable doubt standard. Id. at 1122 ; see also Victor v. Nebraska, 511 U.S. 1, 5 , 114 S.Ct. 1239 , 127 L.Ed.2d 583 (1994); Estelle v. McGuire, 502 U.S. 62 , 72 n. 4, 112 S.Ct. 475 , 116 L.Ed.2d 385 (1991).

Taken in context, the prosecutor’s challenged statements did not incorrectly describe the Government’s burden. The prosecutor himself stated on two occasions that the Government had the burden of…