Eun Suk Joo v. Matthew Cate

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Edward R. Korman, Senior United States District**
Judge, Eastern District of New York, sitting by designation.
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EUN SUK JOO,
Petitioner - Appellant,
v.
MATTHEW CATE,
Respondent - Appellee.
No. 08-55953
D.C. No. 07-3418-GPS-RNB
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
George P. Schiavelli, Presiding
Argued and Submitted May 4, 2010
Pasadena, California
Before: CLIFTON and BYBEE, Circuit Judges, and KORMAN, District Judge.**
This is an appeal from a judgment of the United States District Court for the
Central District of California, adopting a recommendation of a United States
FILED
JUN 08 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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magistrate judge that a petition for a writ of habeas corpus filed by Eun Suk Joo be
denied. Joo was convicted after jury trial of one count of residential burglary in
violation of California Penal Code § 459 and two counts of attempted residential
burglary in violation of California Penal Code § 664, and he was sentenced to a five-
year term of incarceration. After his timely filed petition pursuant to 28 U.S.C. § 2254
was denied, we granted a certificate of appealability limited to the issues we proceed
to address.
I.
Before trial, the prosecutor sought an in limine ruling on the admission of a
prior similar act that Joo allegedly committed four years earlier in the same
neighborhood in which the alleged burglaries occurred. After listening to a summary
of the proffered evidence, the trial judge reserved judgment on whether the evidence
would be admissible. Prior to opening statements, Joo’s counsel asked that the
prosecutor be prohibited from making mention of the prior bad act evidence in light
of the pending ruling on admissibility. The judge refused to do so. The prosecutor
then described the prior similar act to the jury during his opening statement in a
manner that turned out to be materially inaccurate. Subsequently, the trial judge held
a hearing to determine the admissibility of the prior bad act evidence. After reviewing
the police report and hearing argument from counsel, the judge excluded the evidence

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because he determined that the prejudicial effect outweighed its probative value.
Contrary to Joo’s argument, the issue here is not whether the prosecutor
deliberately lied to the jurors about the evidence underlying the criminal act. Because
habeas corpus relief is not granted for the purpose of “disciplining the prosecutor,” the
issue is whether his unsworn and misleading representation was sufficiently
prejudicial to warrant habeas corpus relief. United States v. Hasting, 461 U.S. 499,
509-11 (1983). While Hasting involved a direct appeal applying a harmless beyond
a reasonable doubt standard, the harmless error standard the prosecutor must meet in
habeas corpus proceedings is less stringent. See Brecht v. Abrahamson, 507 U.S. 619,
636-38 (1993). On collateral review, the relevant question is whether the error had
a “substantial and injurious effect or influence in determining the jury’s verdict.” Id.
at 637 (internal quotation marks omitted). Under this standard, habeas petitioners are
not entitled to relief based on trial error “unless they can establish that it resulted in
‘actual prejudice.’” Id.
Particularly apposite here is United States v. Jones, 592 F.2d 1038 (9th Cir.
1979), in which we held:
A prosecutor’s misstatement of the evidence does not
automatically call for reversal. Instead, the court will
reverse only if there is a serious possibility of prejudice to
the defendant.
In the instant case we cannot find a serious danger of

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prejudice to Jones. Both the court and the prosecutor
warned the jury that the prosecutor’s [opening] statements
were not evidence; we have noted repeatedly that
cautionary instructions can help neutralize the possible
prejudicial effects of prosecutorial misstatements.
Moreover, the prosecutor did not later rely on the
misstatements. Finally, the Government’s inability to
produce evidence which it promised the jury would appear
to harm the Government’s case rather than the defense.
Id. at 1043-44 (internal citations and footnote omitted); see also United States v.
Monks, 774 F.2d 945, 955 (9th Cir. 1985); United States v. Vargas-Rios, 607 F.2d
831, 838 (9th Cir. 1979).
This holding is sufficient to dispose of Joo’s argument. The prosecutor’s
disputed statement was limited to one paragraph in the opening, and the incident to
which he referred was not mentioned again throughout the remainder of the seven-day
trial. The prejudicial effect of the alleged misconduct was further diminished because
the jury was instructed by the trial judge that “[t]he lawyers are given some latitude
in terms of their impressions to you right now as to what they believe the evidence is
going to show. What you have to do is decide the case based on the evidence you
actually hear from the witness stand and the law I give to you at the end of the trial.”
This instruction, which jurors are presumed to have followed, see Richardson v.
Marsh, 481 U.S. 200, 211 (1987), was reinforced in the judge’s final instructions to
the jury that the statements of the attorneys are not evidence. Moreover, as was true

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in Jones, 592 F.2d at 1044, the “Government’s inability to produce evidence which
it promised the jury would appear to harm the Government’s case rather than the
defense.”
II.
Joo’s ineffective assistance of counsel claim concerns the same prior consistent
conduct evidence that was ruled inadmissible by the trial judge. Joo contends that
defense counsel’s failure to move for a mistrial when the evidence was excluded
constituted “deficient performance.” This argument presumably derives from the
warning the trial judge gave the prosecutor that, if the prosecutor mentioned the prior
similar act “and it turns out not to be admissible, it could be something that is so
prejudicial . . . to the defendant . . . that we might be discussing the issue of a
mistrial.”
Joo’s claim is without merit. First, it is hardly clear from this statement that
there was a reasonable probability that the trial judge would have granted a mistrial.
Moreover, even if we assume that he would have granted such relief, the prejudice
prong of Strickland v. Washington, 466 U.S. 668 (1984), would be met only if the
petitioner was actually entitled to such relief. “[T]he ‘benchmark’ of an ineffective-
assistance claim is the fairness of the adversary proceeding, and . . . in judging
prejudice and the likelihood of a different outcome, ‘[a] defendant has no entitlement

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to the luck of a lawless decisionmaker.’” Nix v. Whiteside, 475 U.S. 157, 175 (1986).
“Thus, an analysis focusing solely on mere outcome
determination, without attention to whether the result of the
proceeding was fundamentally unfair or unreliable, is
defective. To set aside a conviction . . . solely because the
outcome would have been different but for counsel’s error
may grant the defendant a windfall to which the law does
not entitle him.”
Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993) (footnote omitted).
The argument that petitioner was entitled to a mistrial simply involves a
restatement of the argument that he is entitled to have his conviction set aside and
given a new trial because of the prejudice to his right to a fair trial that occurred as a
result of the prosecutor’s opening statement. The conclusion that he was not entitled
to such relief after trial necessarily resolves the issue of whether he was prejudiced by
his attorney’s failure to move for a mistrial prior to verdict.
III.
Joo argues that the prosecutor also committed misconduct on two separate
occasions during his closing statement: first, when he commented in his closing that
Joo had not informed the police that he was acting under the influence of cocaine at
the time of the burglary when in fact he had, and, second, when he commented in
closing that Joo did not have any cash in his possession when the prosecutor knew that
Joo had ATM and credit cards in his wallet.

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A.
In his closing argument, the prosecutor made the following statement:
But what did the defendant say? We have two statements
from the man, one to Officer Stone after he arrested him
and brought him to Devonshire Station, and then one I
think before that at the hospital with Sergeant Dutta.
According to the defense, this man was already, I suppose,
sober by that time. That’s why the officers aren’t seeing
any indication he’s under the influence of illegal drugs.
Does he say anything to them to explain his behavior, “hey,
man, I was coming down from a cocaine high.”
(Emphasis added). This statement drew an objection from Joo’s counsel on the
ground that the prosecutor had successfully objected to the admission of Joo’s third
statement to Detective Anderson, during which Joo stated that he had been on crack
cocaine and that he was coming down from a high. Joo’s counsel contended that the
prosecutor was “able to argue evidence that he sought excluded from the jury to say
it doesn’t exist and wasn’t present[,] . . . [which constitutes] prosecutorial
misconduct.” The objection was overruled.
In Miller v. Pate, 386 U.S. 1 (1967), the Supreme Court held that the Due
Process Clause was violated by the prosecutor’s summation expressly relying on
evidence he introduced that he knew to be false. In condemning this behavior, the
Supreme Court observed that:
[m]ore than 30 years ago this Court held that the Fourteenth
Amendment cannot tolerate a state criminal conviction

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obtained by the knowing use of false evidence. There has
been no deviation from that established principle. There
can be no retreat from that principle here.
Id. at 7 (internal citations omitted); see also Napue v. Illinois, 360 U.S. 264, 269
(1959); Mooney v. Holohan, 294 U.S. 103, 112-13 (1935).
This clearly established principle was violated when the prosecutor falsely
represented to the jury that Joo did not make any post-arrest statements to the police
indicating that he was under the influence of cocaine. The prosecutor was not only
essentially testifying as an unsworn witness, he was also testifying falsely. See
United States v. Kojayan, 8 F.3d 1315, 1322-23 (9th Cir. 1993). Significantly, the
district court denied relief without considering whether the prosecutor’s comment
violated the Due Process Clause. Instead, it concluded that the conduct constituted
harmless error. This is a close case. Nevertheless, under the Brecht v. Abrahamson,
507 U.S. 619 (1993), standard for resolving this issue, the district court was correct.
The excluded statement, referring to the effect of Joo’s cocaine consumption,
was only first mentioned in the last of four post-arrest statements, given over the
course of two days, one of which was recorded and played to the jury. More
significantly, Joo’s conduct after he was surprised by the victims in each of the three
dwellings is inconsistent with the notion that cocaine had somehow overwhelmed his
ability to engage in rational behavior and that he was hallucinating. When Avila (the

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first victim) saw Joo at her apartment building, Joo replied that he worked at the
building, which Avila knew to be false. After Avila told Joo that she would call the
police, Joo raised his hand, said that “there was no problem,” and left the area. After
Arellano (the second victim) saw Joo holding her window screen, Joo dropped the
screen and fled. When Nowell (the third victim) observed Joo’s arm through the
window, Joo said “I didn’t do anything. It wasn’t me.” Nowell cursed at Joo, and
after a few moments, Joo “left, but he walked calmly as if he hadn’t been the one.”
Moreover, when he was subsequently confronted by Nowell and his cohorts, Joo
attempted to flee. While Nowell testified that Joo appeared to be under the influence
of drugs and that his conduct was consistent with other individuals he had observed
under the influence of drugs in the area surrounding the apartment complex, Joo’s
conduct appears to reflect a consciousness of guilt rather than hallucinatory behavior
induced by cocaine. Significantly, Joo’s expert witness, the only defense witness who
testified on this issue, acknowledged that individuals under the influence of cocaine
are capable of performing intentional acts.
In sum, although the prosecutor’s comments were relevant to Joo’s only
defense—whether he was capable of forming the specific intent to commit a felony
after entering the various dwellings—there was substantial other evidence from which
the jury could have found that, while he may have been under the influence of cocaine

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when he committed the offenses of which he was convicted, he was capable of
forming the specific intent necessary to sustain a conviction for burglary. Under these
circumstances, we cannot say that the prosecutor’s unfortunate summation had the
kind of substantial injurious effect on the verdict that would require habeas corpus
relief. Brecht, 507 U.S. at 636-38.
B.
During closing argument, the prosecutor made the following statement:
A person who’s addicted to cocaine, I suppose, as the
defense would like you to believe, who is coming down and
is in a drug neighborhood, may very well be desperate to
get more drugs. And we know that the currency on the
streets in order to get drugs is cash money and that he
doesn’t have any cash money on him. So what is he going
to do with his inhibitions that are lowered? He’s going to
do something stupid like this in a desperate effort to get
some sort of property that maybe he can use to get drugs.
The statement drew an objection from Joo’s counsel on the grounds that the
prosecutor was again “arguing the evidence that was sought to be excluded.”
Immediately after the objection, the judge admonished the jury to “decide this case
based on the evidence you receive during the trial and the legal instructions I have
given you.”
Joo contends that because he had ATM and credit cards in his possession at the
time of the burglaries, evidence of which was excluded from trial, the prosecutor’s

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statement constituted misconduct. Unlike the comment with respect to Joo’s post-
arrest statements to the police, this statement was not contrary to the evidence.
Indeed, it is undisputed that there was no cash found in Joo’s possession at the time
of his arrest and that “the currency on the streets in order to get drugs is cash money.”
Credit cards are of no use, and the district court found that there was no evidence that
there was cash to be drawn on even if an ATM was readily available at 6:00 to 7:00
in the morning. Joo’s quarrel, if any, is with the ruling excluding evidence indicating
the possibility of access to sources of cash. The district court held that the exclusion
of this evidence did not constitute an “objectively unreasonable application of clearly
established Supreme Court law,” and we declined to issue a certificate of appealability
with respect to that issue.
While we conclude that habeas corpus relief is unavailable here, we are
concerned with the conduct of the prosecutor. In Berger v. United States, 295 U.S.
78, 88 (1935), the Supreme Court held that a prosecutor is a “representative not of an
ordinary party to a controversy, but of a sovereignty whose obligation to govern
impartially is as compelling as its obligation to govern at all; and whose interest,
therefore, in a criminal prosecution is not that it shall win a case, but that justice shall
be done.” The prosecutor in this case engaged in conduct that was inconsistent with
his obligation to ensure that justice was done. Nevertheless, for the reasons stated

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above, the judgment of the district court is AFFIRMED.

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