United States of America v. Sha-Ron Haines

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SHA-RON HAINES,
Defendant-Appellant.
No. 17-10059
D.C. No.
2:14-cr-00264-APG-VCF-2
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted January 17, 2019
San Francisco, California
Before: WALLACE and FRIEDLAND, Circuit Judges, and ADELMAN,**
District Judge.
Sha-Ron Haines appeals his convictions for sex trafficking a minor. We
address in a separate, published opinion his argument that the district court erred in
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
FILED
MAR 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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excluding testimony under Federal Rule of Evidence 412. His other arguments are
addressed herein. We affirm.
1. We decline to order a new trial based on alleged prosecutorial misconduct.
First, the district court did not abuse its discretion in denying a mistrial based
on co-defendant Tyral King’s testimony that he met Haines at a youth detention
center. See United States v. Cardenas-Mendoza, 579 F.3d 1024, 1029 (9th Cir.
2009) (“When there are allegations of prosecutorial misconduct, the court reviews a
district court’s denial of a mistrial for abuse of discretion.”). To obtain a reversal
based on prosecutorial misconduct, the defendant must establish both misconduct
and prejudice. United States v. Lloyd, 807 F.3d 1128, 1167 (9th Cir. 2015). The
record does not compel Haines’s contention that the prosecutor intentionally elicited
this testimony. See id. at 1168 (“A prosecutor’s inadvertent mistakes or
misstatements are not misconduct.”). Further, the district court quickly sustained
Haines’s objection, ordered the jury to disregard the improper testimony, and offered
to provide a curative instruction (which Haines declined for strategic reasons). See
United States v. Lemus, 847 F.3d 1016, 1024 (9th Cir. 2016) (“A cautionary
instruction from the judge is generally sufficient to cure any prejudice from the
introduction of inadmissible evidence, and ‘is the preferred alternative to declaring
mistrial when a witness makes inappropriate or prejudicial remarks[.]’” (quoting
United States v. Escalante, 637 F.2d 1197, 1203 (9th Cir. 1980)). The district court

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was better positioned to evaluate the magnitude of any possible prejudice from the
passing mention of the juvenile detention facility, and we will not disturb its decision
here.
Second, the district court did not abuse its discretion in denying a mistrial
based on a police detective’s reference, while testifying about a call between Haines
and the victim, J.C., to his “training and experience from listening to jail calls.”
Haines fails to show that the government deliberately violated the court’s previous
order not to reference jail calls. More importantly, the district court promptly
sustained Haines’s objection and struck the testimony. These curative measures
were sufficient.
Third, Haines fails to demonstrate that he should be granted a new trial based
on improper vouching. During rebuttal argument, the prosecutor said: “Tyral King,
you don’t want to listen to what he said, I think he was honest – I’m not going to say
that – withdrawn.” She then recast her statement as “the evidence shows that he was
saying that he was honest and truthful.” Because Haines did not object to the initial,
withdrawn statement, our review is for plain error. See, e.g., United States v. Leon-
Reyes, 177 F.3d 816, 821 (9th Cir. 1999). While a prosecutor may not place the
prestige of the government behind a witness through personal assurances of the
witness’s veracity, id., here the prosecutor quickly withdrew the assertion of
personal belief and recast her argument in terms of what the evidence showed. The

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district court then instructed the jury that the lawyers’ arguments are not evidence,
that the jury determines witness credibility, and that the jury should use “greater
caution” in evaluating King’s testimony. These instructions were sufficient; reversal
is not required under the plain error standard. See United States v. Daas, 198 F.3d
1167, 1178-79 (9th Cir. 1999).
Finally, Haines fails to demonstrate a pattern of misconduct that so affected
the jury’s ability to consider the totality of the evidence fairly that it tainted the
verdict and deprived Haines of a fair trial. See United States v. Reyes, 660 F.3d 454,
463 (9th Cir. 2011).
2. The district court properly denied Haines’s motion to dismiss based on
outrageous government conduct and subornation of perjury regarding J.C.’s grand
jury testimony. Dismissing an indictment for outrageous government conduct is
limited to extreme cases in which the defendant can demonstrate that the
government’s conduct violates fundamental fairness and is so grossly shocking as to
violate the universal sense of justice. United States v. Black, 733 F.3d 294, 302
(9th Cir. 2013). An indictment obtained through the submission of perjured
testimony will be dismissed only if that testimony was material and knowingly
presented to the grand jury. See United States v. Brown, 347 F.3d 1095, 1098 (9th
Cir. 2003). Our review is de novo. See United States v. Fuchs, 218 F.3d 957, 964
(9th Cir. 2000).

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Haines does not explain how the fact that J.C. later changed her testimony
about giving Haines money meant the prosecutor knowingly misled the grand jury.
Further, even excising J.C.’s grand jury testimony that she gave her money to
Haines, sufficient evidence remained to indict; receipt of money is not an element
of any of the charges. Finally, Haines cites no authority for the proposition that a
government officer engages in the sort of misconduct warranting the extreme
remedy of dismissal by pressuring a witness (already under subpoena) to testify, as
the detective allegedly did here.
3. Haines argues that the government knowingly presented false testimony at
trial when the detective testified that he never called J.C.’s probation officer. See
Napue v. Illinois, 360 U.S. 264, 269 (1959) (holding that a due process violation
occurs where the state uses false evidence to obtain a criminal conviction). A Napue
violation requires proving that (1) the testimony was actually false, (2) the
government knew or should have known it was false, and (3) the testimony was
material. United States v. Renzi, 769 F.3d 731, 751 (9th Cir. 2014). Because he did
not raise this issue before the district court, Haines must show that any error was
plain. See United States v. Houston, 648 F.3d 806, 813 (9th Cir. 2011).
Haines fails to show that detective gave false, as opposed to merely
inconsistent, direct testimony. Nor can he show that, even if false, the testimony

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was material. Haines cross-examined the detective about the additional calls he
made, permitting the jury to fully evaluate the issue. See Renzi, 769 F.3d at 752.
4. We find no reversible error in the district court’s evidentiary rulings, which
we review for abuse of discretion. United States v. Mikhel, 889 F.3d 1003, 1035
(9th Cir. 2018).
First, the district court did not abuse its discretion in admitting the phone call
between Haines and J.C. The government did not disclose the call prior to trial
because it did not know of its existence until it debriefed King the Friday before
trial; the detective was able to authenticate the call based on his familiarity with
Haines’s voice, see United States v. Ortiz, 776 F.3d 1042, 1044-45 (9th Cir. 2015);
and the detective did not narrate the call, as Haines alleges, but rather merely
identified the speakers. J.C. also authenticated the call at trial.
Second, the district court did not violate Haines’s confrontation rights by
allowing “hearsay” testimony that J.C.’s mother, not the investigating detective,
reported J.C.’s use of social media to J.C.’s probation officer, resulting in J.C.’s
arrest shortly before her grand jury appearance. This testimony was not offered for
the truth of the matter – that J.C. really was on social media – but rather to show why
J.C. was arrested. See United States v. Wahchumwah, 710 F.3d 862, 871 (9th Cir.
2013).

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Third, the district court did not abuse its discretion in refusing to allow Haines
to admit the minutes of a juvenile court hearing at which J.C. was released, which
indicated that J.C. testified before the grand jury earlier that day. Haines argues that
the document should have been admitted as a business or public record, but he
admitted in the district court that he did not have a records custodian or certification
for the document, see Fed. R. Evid. 803(6), and he does not even address the
“hearsay within hearsay” issue that troubled the district court, see Fed. R. Evid. 805.
In any event, Haines got this evidence in through J.C.’s probation officer, so any
error was harmless.
Fourth, the district court did not err in allowing J.C.’s probation officer and
advocate to testify that J.C. never advised them of the detective’s alleged coercion.
Testimony that a declarant did not say something is not hearsay. Further, J.C. herself
testified that she did not report the coercion to these people, so any error was
harmless.
Finally, the district court did not err in allowing the detective to testify that
J.C.’s text messages were indicative of prostitution. Haines cannot show that this
amounted to improper expert testimony, rather than lay opinion based on the
detective’s experience as a vice officer and his knowledge of the investigation. See
United States v. Barragan, 871 F.3d 689, 704 (9th Cir. 2017).

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5. Because the district court committed no reversible error, Haines’s
cumulative error argument fails as well. See United States v. Jeremiah, 493 F.3d
1042, 1047 (9th Cir. 2007).
AFFIRMED.

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