United States v. 2010-12-16 | 09-30143 | USA V. WILLIAM NEWHOFF, JR. | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 09-30143
Plaintiff-Appellee, D.C. No.
v. 9:08-cr-00041-  DWM-1WILLIAM DALE NEWHOFF, JR.,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
January 13, 2010—Seattle, Washington
Filed December 16, 2010
Before: Andrew J. Kleinfeld and Richard C. Tallman,
Circuit Judges, and Benjamin H. Settle,*District Judge.
Opinion by Judge Kleinfeld
*The Honorable Benjamin H. Settle, United States District Judge for the
Western District of Washington, sitting by designation.
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COUNSEL
Daniel Donovan, Great Falls, Montana, for the appellant.
William W. Mercer, United States Attorney, Helena, Mon-
tana, and Paulette L. Stewart, Assistant United States Attor-
ney, Helena, Montana, for the appellee.
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OPINION
KLEINFELD, Circuit Judge:
We address rereading a witness’s testimony to a jury during
deliberations, and a sentencing issue.
I. Facts
This case went to a jury trial, and accounts varied. Newhoff
was convicted in this case of being a felon in possession of
a firearm1 and for possession of a stolen firearm,2 and, in a
separate state proceeding, of the burglary in which the firearm
was stolen. The burglary was the night of July 4, and the
police contact leading to the felon in possession charge, a traf-
fic stop, was on July 6. At trial, Newhoff stipulated that he
had a prior felony conviction preceding the burglary, that the
pistol had crossed state lines, and that the pistol was stolen.
The only issue left for the jury to decide was whether Newh-
off knowingly possessed the pistol.
On this issue, witness accounts varied. The witness whose
testimony was reread was a deputy sheriff who assisted at the
July 6 stop, Jared Cochran. He testified that Newhoff was
driving, and that the officer who had stopped the car said that
the man in the front passenger seat and the woman in the rear
seat had acted as though they were passing, hiding, or manip-
ulating something. Cochran had the woman in the rear seat
dump out her purse. Out fell a small unloaded semiautomatic
pistol. The only immediate trouble Newhoff was in was that
Cochran thought he had been drinking, which would violate
the terms of his release in another case, and that he might also
have been driving under the influence. Newhoff told Cochran
that he did not know his passenger had had the pistol in her
possession, though he had handled it earlier that night, when
118 U.S.C. § 922(g)(1).
218 U.S.C. § 922(j).
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she had been trying to sell it at a casino. Newhoff later denied
telling Cochran that he had handled the pistol.
Newhoff and six other witnesses, friends and acquaintances
of Newhoff and each other, also testified. Newhoff admitted
that on July 4 he had burglarized “Old Man Bill’s trailer,”
behind the Hellgate Trading Post, a crime he had pleaded
guilty to in state court. But Newhoff testified that he had
stolen only a backpack, and he did not know anything about
the pistol or that it was in the car on the night of the traffic
stop. But his friends and acquaintances testified that Newhoff
had taken the pistol out of his back pocket and displayed the
pistol to several people as he tried several times the previous
evening to sell it. All rejected the pistol because his price was
too high, the pistol was in poor condition, it lacked a clip, or
it was not the type of gun they collected or wanted.
The backseat female passenger, Enid Hobbick, testified that
she had been in the car with Newhoff and her fiancé, Robert
Lee Phillips, when they committed the burglary on July 4. She
testified that Newhoff had come out of Old Man Bill’s trailer
with a backpack, but she never saw the pistol that night. But,
she testified, when they were stopped on July 6, she knew
Newhoff had the pistol and told Newhoff to pass the pistol to
her, because she knew he was on parole and she wanted to
protect him. She testified that she told Newhoff to lay the
blame for the pistol on her.
Other witnesses also put Newhoff in possession of the pis-
tol. Robert Lee Phillips, who had joined in the burglary, testi-
fied that the night after the burglary, while he was “playing
keno at Deano’s casino,” he saw Newhoff trying to sell the
pistol. A prospective customer testified that Newhoff tried to
sell him the pistol, but he collected World War II rifles and
was not interested in Newhoff’s overpriced pistol. One friend
confirmed that Newhoff had possessed the gun, testifying that
he had teased Newhoff that since he lacked the clip for the
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pistol, “if you want to shoot it, you would have to single-load
it every time.”
The friends and acquaintances were impeached. Hobbick
had been charged with possession of stolen property, but her
charges had been dismissed before she testified. And she had
been drunk when Newhoff and her fiancé had burglarized Old
Man Bill’s trailer. Her fiancé, Robert Lee Phillips, could have
been the burglar who took the pistol, and her fiancé’s brother,
Christopher Phillips, could have been the person who passed
the pistol to her during the traffic stop.
Robert Lee Phillips, whom Hobbick testified committed the
burglary with Newhoff, contradicted her testimony. He testi-
fied that he was not even in the car during the burglary, and
he was never charged with the crime. He testified that he
remembered seeing Newhoff trying to sell the gun at the
casino the next night, but he admitted that he did not remem-
ber much from the night at the casino because he was “tweak-
ing” on methamphetamine. Of the remaining witnesses, one
said Newhoff asked him if he wanted to buy a gun, but con-
ceded that he never saw the gun. Another witness, a close
friend of Hobbick, said Newhoff showed him the gun and
tried to sell it to him. The lenient law enforcement treatment
of Hobbick and Robert Lee Phillips could suggest an infer-
ence that they lied about Newhoff to benefit themselves.
Newhoff’s attorney argued that all the friends and acquaint-
ances the government put on were so impeachable that their
stories could not be believed beyond a reasonable doubt. He
provided the jury with an “Occam’s razor” defense, that the
pistol was found in Hobbick’s purse, and the simplest expla-
nation based on the only thing they knew for sure was that she
had put it there. He also made a strong argument based on
Officer Cochran’s testimony. Officer Cochran had testified
that the other police officer had told him that the front-seat
passenger, Christopher Phillips (Robert Lee’s brother), and
backseat passenger, Hobbick, were “squirming around like
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they were trying to hide something. Not the driver, the pas-
sengers.”
During deliberations, the jury sent out a note, signed by
four jurors, asking if they could look at a transcript of all the
testimony. After consulting with counsel, the judge said that
would be possible, but would take a few hours. The jurors
responded with a note asking how long it would take to obtain
the testimony for just one witness, Officer Cochran. The court
answered that it would take a half-hour. The jurors asked for
Officer Cochran’s testimony.
Consulting with counsel, the judge advised that he would
not send the transcript to the jury room, but would instead
read it to the jurors in open court with counsel present. He
asked if either side objected, and both counsel advised him
that they did not object. The judge said, “I will give them a
cautionary instruction that they’re not to place undue empha-
sis on that testimony or any other testimony and that, still,
their memory of what he said controls.” The judge then called
the jury back in and read the entire testimony of Officer
Cochran, including the cross-examination. The jury was
admonished that their memories controlled, but no admonition
against placing undue emphasis on Officer Cochran’s testi-
mony was given. After reading the testimony, the court asked
counsel if there was any objection to the way the readback
had proceeded, and both attorneys said that they had no objec-
tion. Nine minutes later, the jury came back with a guilty ver-
dict.
II. Analysis
1. The Readback
Newhoff argues for a new trial on the ground that by read-
ing back Officer Cochran’s testimony without admonishing
the jury not to give it undue emphasis, the district court
caused undue emphasis to be given.
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Failure to give such an admonition, assuming that it is
error, does not permeate the entire framework of the trial,3 but
is simply an error in the trial process. Because it is not structural,4
it can lead to reversal only if prejudicial.5 Because counsel
expressly stated that they had no objection to how the judge
had conducted the readback, the error can justify reversal only
if it was “plain error.”6 Plain error requires that (1) there must
be error; (2) that error must be plain; and (3) that error must
affect substantial rights.7 Even if these conditions are met, we
may notice the error only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.”8
[1] As for whether there was error, Newhoff argues that
there was, under United States v. Richard,9 United States v. Bind-
er,10 and United States v. Hernandez.11 Binder holds that
rereading a witness’s testimony is disfavored when it unduly
emphasizes that testimony, and that undue emphasis should
not be permitted.12 We reversed in Hernandez, where the dis-
trict court had allowed a transcript of part of a single wit-
ness’s testimony to be sent into the jury room without taking
3United States v. Walters, 309 F.3d 589, 593 (9th Cir. 2002) (quoting
Rice v. Wood, 77 F.3d 1138, 1141 (9th Cir. 1996) (citation omitted)).
4United States v. Soto, 519 F.3d 927, 930 (9th Cir. 2008) (quoting
United States v. Gonzalez-Lopez, 548 U.S. 140, 141 (2006) (internal quo-
tation marks and alteration omitted).
5Fed. R. Crim. P. 52(a); United States v. Beard, 161 F.3d 1190, 1193
(9th Cir. 1998).
6Fed. R. Crim. P. 52(b); United States v. Lopez, 477 F.3d 1110, 1113
(9th Cir. 2007).
7United States v. Recio, 371 F.3d 1093, 1100 (9th Cir. 2004) (citing
United States v. Olano, 507 U.S. 725, 732-36 (1993)).
8Id. (alteration in original).
9504 F.3d 1109 (9th Cir. 2007).
10769 F.2d 595 (9th Cir. 1985), overruled in part on other grounds by
United States v. Morales, 108 F.3d 1031, 1035 (9th Cir. 1997) (en banc).
1127 F.3d 1403 (9th Cir. 1994).
12769 F.2d at 600.
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adequate precautions to avoid undue emphasis.13 The district
court had not admonished the jury that they should avoid giv-
ing undue emphasis to the testimony of the one witness in the
transcript provided. We explained that “to avoid the possibil-
ity of this undue emphasis, the preferred method of rehearing
testimony is in open court, under the supervision of the court,
with the defendant and the attorneys present.”14 Among the
benefits of this approach are that the court can assure that the
jury heard the whole transcript and no one cuts off the reading
by saying “I’ve heard enough,” and counsel can correct
errors.
In Richard, we reversed in a felon in possession case,
where the jury got a readback of the only witness who saw the
gun in the defendant’s possession.15 The court had denied a
defense request that the jury hear all the testimony of that wit-
ness, not just a selected part, and had failed to admonish the
jury against giving undue emphasis to what was read back.
We held that these two factors made the conduct of the read-
back an abuse of discretion, and said “certain precautions
must generally be taken”16 to avoid the inherent risk of undue
emphasis from a readback: (1) preferably the readback or
replay should take place in open court with all present; (2) the
jury should ordinarily be provided with the witness’s entire
testimony, direct and cross-examination; and (3) the jury
should be admonished to weigh all the evidence and not just
one part.17 That the jury seeks only part of a witness’s testi-
mony does not lessen the risk of overemphasis, “but rather
crystallizes it,”18 requiring measures to mitigate that risk.
13United States v. Hernandez, 27 F.3d 1403, 1404 (9th Cir. 1994).
14Id. at 1408.
15United States v. Richard, 504 F.3d 1109 (9th Cir. 2007).
16Id. at 1113.
17Id. at 1114-15.
18Id. at 1116.
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[2] The wording of Richard — “generally,” “should ordi-
narily,” etc. — appears to allow for exceptions, but plainly the
general rule is that if the jury wants a readback, and the court
exercises discretion to allow it, the court should make the jury
hear the entirety of the witness’s testimony in open court
(except where excessive length makes that impractical and
fairness can be assured by using an excerpt preferably agreed
upon by counsel), with counsel for both sides and the defen-
dant present, and with an adequate admonition. The admoni-
tion should tell the jurors that (1) because they requested a
readback, it is being provided to them, but all readbacks run
the risk of distorting the trial because of overemphasis of one
portion of the testimony; (2) the jury will be required to hear
all the witness’s testimony (except where an excerpt was
selected because of excessive length), on direct and cross-
examination, to avoid the risk that they might miss a portion
bearing on their judgment of what testimony to accept as
credible; (3) the transcript is not evidence, just a record of
what the testimony was, and since nothing is perfect and the
transcript could possibly contain errors, their recollections and
understandings of the testimony itself rather than the tran-
script is the evidence on which they must make their decision;
(4) the transcript cannot reflect matters of demeanor, tone of
voice, and other aspects of the live testimony the jurors heard,
which may affect what they judge to be credible; and (5) the
testimony read cannot be considered in isolation, but must be
considered in the context of all the evidence presented, both
testimony and exhibits, in the jurors’ exercise of their judg-
ment.
[3] As for whether the error of reading back Officer Coch-
ran’s testimony without an admonition was plain, we con-
clude that it was. We need not explore the reasons why,
because the district judge expressly decided that he should
give the admonition against undue emphasis. His exercise of
discretion to give the admonition was sound. The only expla-
nation we can see on this record for not giving the admonition
was that the judge forgot. That is an easy thing to do in a trial.
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And it is a reason why judges do, and this judge did, ask
counsel for objections. They are called “counsel,” in part,
because they counsel the court. It is incumbent on defense
counsel to protect his client and the court from judicial error,
including forgetting something, and incumbent on the prose-
cutor to protect the court from error, even where the error
might, at least before appeal and possible reversal, benefit the
prosecution. The only explanation for why both attorneys said
they had no objection to failure to give the admonition is that
they too forgot, again an easy thing to do in a trial. But error
it was.
[4] That leaves for us the question of whether the failure
to give the admonition affected Newhoff’s substantial rights.
We conclude that it did not, so under Federal Rule of Crimi-
nal Procedure 52(b) and United States v. Olano,19 we cannot
reverse. That the jury returned a verdict immediately after the
readback does not show an effect on Newhoff’s substantial
rights, under United States v. King.20 “The jury may have
already reached a verdict and merely desired a confirming
clarification on one point; the clarification on a point may
have been the ‘straw that broke the camel’s back’ in swaying
a verdict properly based on the totality of the evidence.”21
[5] What is most striking about this particular readback is
that Officer Cochran, though called by the prosecution, pro-
vided the jury with the strongest evidence for the defense.
This point was well argued by the defense. If the jury believed
what Officer Cochran testified the other policeman told him,
the gun was passed from the front-seat passenger, Christopher
Phillips, to the backseat passenger, Hobbick. Since Newhoff
was the driver, this part of Officer Cochran’s testimony cor-
roborated Newhoff’s testimony that he did not possess the
gun. The four jurors who requested Officer Cochran’s testi-
19507 U.S. 725, 732-36 (1993).
20552 F.2d 833 (9th Cir. 1976).
21Id. at 850.
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mony might have been asking for it to see whether it exoner-
ated Newhoff, a position they might have been holding out
for, not whether it convicted him. The testimony, though, also
undercut Newhoff’s defense. Officer Cochran also testified
that Newhoff admitted handling the gun. Since the jury was
read all of Officer Cochran’s testimony, they could listen
again to both points.
[6] Also, even though all the friends and acquaintances
were of dubious character and credibility, and several might
have had problems perceiving, remembering, and relating
what happened because of alcohol and methamphetamine
intoxication during the events, their accounts were plausible.
Unlike the defendant in Richard, several witnesses, not just
the one whose testimony was read back, put Newhoff in pos-
session of the pistol. Two witnesses testified that Newhoff
offered to sell them the pistol, one witness saw Newhoff try
to sell it, at least three saw him handling it, and one testified
that he had passed it to her in the car. Despite all the reasons
the jury had to doubt them, their testimony was plausible and
coherent enough so that they might be believed.
2. Sentencing
Newhoff’s seventy-eight-month sentence was as high as it
was because of several enhancements: (1) Newhoff had a dra-
matically bad criminal history, putting him in Category IV;22
(2) the pistol had been stolen;23 (3) he possessed the pistol in
connection with a burglary;24 and (4) he escaped from jail by
removing a fixture from the ceiling of his cell and escaping
through the roof while awaiting sentencing in this case.25
Newhoff argues only that the four-level enhancement for pos-
22U.S.S.G. § 4A1.1(e); 4A1.1(d).
23Id. § 2K2.1(b)(4).
24Id. § 2K2.1(b)(6).
25Id. § 3C1.1 cmt. n.4(e).
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sessing the pistol in connection with a burglary was not
proved.
[7] The guidelines calculation challenged is under the U.S.
Sentencing Guidelines Manual Section 2K2.1(b)(6),26 pos-
sessing a firearm “in connection with” another felony. The
official commentary provides at note 14 that “in connection
with” applies to “a defendant who, during the course of a bur-
glary, finds and takes a firearm, even if the defendant did not
engage in any other conduct with that firearm during the
course of the burglary.”27
Newhoff argues that there was no proof he took the pistol
during the burglary of Old Man Bill’s trailer. His argument is
essentially that there was no direct eyewitness testimony that
he found or took the gun during the burglary, just that he had
it later, and he testified that he did neither. But the district
judge found at sentencing that it could be inferred from
Newhoff’s sales efforts the next day that he was the burglar
who found and stole the pistol.
[8] Newhoff correctly points out that the government has
the burden of proof on upward adjustments for relevant con-
duct such as the one at issue.28 But here the proof sufficed.
The standard of proof is preponderance of the evidence.29 Cir-
26Section 2K2.1(b)(6) provides that
If the defendant used or possessed any firearm or ammunition in
connection with another felony offense; or possessed or trans-
ferred any firearm or ammunition with knowledge, intent, or rea-
son to believe that it would be used or possessed in connection
with another felony offense, increase by 4 levels. If the resulting
offense level is less than level 18, increase to level 18.
27U.S.S.G. § 2K2.1(b)(6) cmt. n.14(B).
28United States v. Ameline, 409 F.3d 1073, 1086 (9th Cir. 2005) (en
banc) (“[W]hen the government seeks an upward adjustment, it bears the
burden of proof.”) (citation omitted).
29U.S.S.G. § 6A1.3 cmt. (“The Commission believes that use of a pre-
ponderance of the evidence standard is appropriate to meet due process
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cumstantial as well as direct evidence can prove a sentencing
fact,30 just as generally it can prove any other. We review the
district court’s finding of fact that Newhoff found and took
the pistol during the burglary for clear error,31 and there is
none. It is a reasonable inference, from the fact that Newhoff
was the burglar who was trying to sell the pistol, that he was
the one who found and stole it.
AFFIRMED.
requirements and policy concerns in resolving disputes regarding applica-
tion of the guidelines to the facts of a case.”); see also United States v.
Pham, 545 F.3d 712, 720 (9th Cir. 2008) (“The government has the bur-
den of proving the facts necessary to support a sentence enhancement by
a preponderance of the evidence.”).
30United States v. Garcia, 135 F.3d 667, 671 (9th Cir. 1998).
31United States v. Bright, 353 F.3d 1114, 1118 (9th Cir. 2004).
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