United States v. Kendrick Weatherspoon

*1144 ORDER WITHDRAWING OPINION AND OPINION

ORDER

We have received a motion by the United States Attorney for the District of Nevada seeking modification of the written opinions in this case (both the majority opinion and the partial-concurrence-partial-dissent). For the reasons stated here, the motion is granted in part.

As for the majority opinion, the one modification that the motion seeks is its elimination of the word “recidivist” from this sentence:

Because the motion mistakenly characterizes that usage as “inartful,” something should be said to dispel that notion. Webster’s Third New International Dictionary lists this as the primary definition and example of “recidivist” (true to the term’s medieval Latin and French etymology), before giving a secondary definition referring to criminal repeat offenders:

That mirrors the dictionary’s primary definition and example of “recidivism”:

In the context and place where “such recidivist conduct” appears in the opinion, then, the term’s usage clearly conforms to that first-listed common meaning.

Nonetheless we recognize the United States Attorney’s sensitivity to the fact that the term’s usage most familiar to lawyers is in…

Concurring in part and Dissenting in part:

I

Prosecutorial misconduct in the context of closing argument is entirely a creation of our “common law.” In examining these issues, we do not begin either with the plain language of any statute, or with a specific provision of the Constitution or the Bill of Rights. Instead, our warrant arises from the defendant’s broad right to a “fair trial” guaranteed by the Due Process Clause. As one might surmise, however, “[t]he line separating acceptable from improper advocacy is not easily drawn; there is often a gray'zone.” United States v. Young, 470 U.S. 1, 7 , 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985); Donnelly v. De Christoforo, 416 U.S. 637, 645 , 94 S.Ct. 1868 , 40 L.Ed.2d 431 (1974) (the constitutional line drawing in this area is “necessarily imprecise”). Nevertheless, case law has identified concrete dangers to a defendants right to a fair trial posed by a prosecutor’s arguments that transgress the boundaries of propriety.

The first danger relevant to this appeal arises from comments by a prosecutor that might convey to the jurors “the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges…

410 F.3d 1142 UNITED STATES of America, Plaintiff-Appellee, v. Kendrick WEATHERSPOON, Defendant-Appellant. No. 03-10551. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 8, 2004. Filed June 13, 2005. 1 Jason F. Carr, Assistant Federal Public Defender, Las Vegas, NV, for the appellant. 2 Darin La Hood, Assistant United States Attorney, Las Vegas, NV, for the appellee. 3 Appeal from the United States District Court for the District of Nevada; David W. Hagen, District Judge, Presiding. D.C. No. CR-S-03-0076-DWH (LRL). 4 Before TROTT and McKEOWN, Circuit Judges, and SHADUR, Senior District Judge. * ORDER WITHDRAWING OPINION AND OPINION ORDER 5 We have received a motion by the United States Attorney for the District of Nevada seeking modification of the written opinions in this case (both the majority opinion and the partial-concurrence-partial-dissent). For the reasons stated here, the motion is granted in part. 6 As for the majority opinion, the one modification that the motion seeks is its elimination of the word "recidivist" from this sentence: 7 To label such recidivist conduct as "unremarkable" is itself remarkable. 8 Because the motion mistakenly…