Dade

MEMORANDUM **

John Ernest Dade appeals his conviction following a jury trial, of threatening interstate communications, interstate stalking, use of a firearm in relation to a violent crime, and two counts of interstate domestic violence.

1. Viewed in the entire context of the trial, the alleged prosecutorial misconduct did not seriously affect the “fairness, integrity, or public reputation of judicial proceedings” or “result in a miscarriage of justice.” See United States v. Geston, 299 F.3d 1130, 1135 (9th Cir.2002) (citation omitted). Because the evidence of guilt was overwhelming in this case, the prosecutor’s comparison of Dade to a “September 11th terrorist,” even if erroneously allowed, does not warrant reversal. However, in a case where the evidence of guilt is less powerful, such a statement might result in reversal. See United States v. Weatherspoon, 406 F.3d 636 , 644—45 (9th Cir.2005).

2. We disagree with Dade’s contention that the district court committed plain error by failing to conduct a pre-trial foundational examination of evidence regarding tacit omissions. Stipulation to a fact at trial constitutes waiver of a challenge to it on appeal, and in this case, the…