United States v. John Maloney

I. BACKGROUND

On June 17, 2010, John Maloney drove a Freightliner tractor-trailer to the Highway 78 Border Patrol checkpoint in Imperial County, California. At the checkpoint, a detector canine (Aja-D) alerted to the tractor-trailer. Maloney agreed to exit the tractor-trailer so that the canine could perform a second sniff around the vehicle. Aja-D again alerted to the sleeping area (located in the back of the cab). Maloney then agreed to a physical search of the tractor-trailer. Border Patrol Agents found 112 sealed packages (weighing a total of 146.06 kilograms or 321.33 pounds) of marijuana in the bunk area behind the driver’s seat. The top bunk contained nine bricks of marijuana in a black garbage bag. Agents found the remaining bricks in a compartment under the bottom bunk.

UNITED STATES V . MALONEY

A grand jury indicted Maloney for knowingly and intentionally possessing, with intent to distribute 100 kilograms or more of marijuana in violation of 21 U.S.C. § 841(a)(1). A jury trial followed, and the jury found Maloney guilty of the indicted offense. On August 5, 2011, the district court entered judgment and sentenced Maloney to sixty-three months…

Opinion by Judge N.R. SMITH;

OPINION

John Maloney appeals his jury conviction and sentence for possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841 (a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

The district court did not abuse its discretion in denying the defense surrebuttal summation, because the prosecution’s statements in rebuttal summation addressed the arguments made in defense counsel’s closing argument and were based on permissible inferences from the record. The prosecution only strays from the proper bounds of rebuttal summation when it impermissibly raises new arguments in rebuttal summation. See United States v. Taylor, 728 F.2d 930, 937 (7th Cir.1984). The prosecution impermissibly raises new arguments beyond the proper scope of rebuttal summation when the door has not been opened by defense counsel’s summation or when the prosecution’s arguments are not based on reasonable inferences from the record. See United States v. Sayetsitty, 107 F.3d 1405, 1409-10 (9th Cir.1997); United States v. Gray, 876 F.2d 1411, 1417-18 (9th Cir.1989). Further, the district court did not abuse its discretion in denying…

dissenting:

I agree with the majority’s analysis on all but the following two issues: (1) whether the district court abused its discretion by refusing Maloney’s request to respond in a surrebuttal to the government’s “lack-of-luggage” argument that was raised for the first time during rebuttal; and (2) if so, whether that error warrants a new trial. Contrary to the majority, I believe that the answers to these two questions should be “yes.” I therefore respectfully dissent.

I. The district court abused its discretion

The lack-of-luggage argument played a prominent role in the government’s rebuttal during closing arguments. As part of his rebuttal, the prosecutor asserted for the first time that Maloney must have been lying about the purpose of his trip between the California cities of El Centro and Blythe because there was no luggage found in the truck when it was stopped at the Highway 78 Border Patrol checkpoint. The prosecutor made this lack-of-luggage argument despite the fact that there was no evidence presented at trial to establish whether Maloney did or did not have luggage during the trip.

Emphasizing the new lack-of-luggage argument, the prosecutor began his rebuttal…