United States of America v. ROGER KEELING, AKA Roger Vance Keeling

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROGER KEELING, AKA Roger Vance
Keeling,
Defendant-Appellant.
No. 21-30259
D.C. No.
4:21-cr-00005-RRB-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Submitted December 6, 2022**
Seattle, Washington
Before: McKEOWN, MILLER, and MENDOZA, Circuit Judges.
Roger Keeling appeals his jury conviction for one count of murder for hire
(18 U.S.C. § 1958) and one count of cyberstalking (18 U.S.C. §§ 2261A(2)(B),
2261(b)(6)). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
DEC 12 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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I.
Over Keeling’s objections, the district court admitted Alaska State Trooper
Sailer’s lay testimony that i) law enforcement quickly responded to the cellmate’s
murder for hire allegation against Keeling because of an immediate, severe, and
possibly realistic threat to Keeling’s ex-girlfriend, and ii) the evidence seized from
Keeling’s apartment corroborated the murder for hire allegation. Finding that
Keeling’s objections to both instances of testimony were sufficiently preserved for
appeal, we review for abuse of discretion. United States v. Lloyd, 807 F.3d 1128,
1151 (9th Cir. 2015).
Even if Trooper Sailer’s testimony transgressed Federal Rule of Evidence
701’s limitations, we conclude that any errors were harmless. Any error in
admitting lay testimony under Rule 701 may be harmless “if in light of the
evidence as a whole, there was a ‘fair assurance that the jury was not substantially
swayed by the error.’” United States v. Gadson, 763 F.3d 1189, 1208 (9th Cir.
2014) (quoting United States v. Freeman, 498 F.3d 893, 905 (9th Cir. 2007)).
Here, there is ample additional evidence of guilt, including incriminating
documents seized from Keeling’s apartment (which were presented in detail to the
jury), as well as evidence that Keeling transferred money in excess of the
cellmate’s bail amount to the cellmate’s mother. Given this other evidence, as well
as the curative jury instruction to which the defense agreed, Trooper Sailer’s

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testimony did not substantially sway the jury to convict Keeling.
II.
Pointing to the same testimony, Keeling also alleges that the prosecutor
improperly elicited these vouching statements from Trooper Sailer. Because
Keeling failed to lodge a vouching objection in both instances, we review these
challenges for plain error. United States v. Pino-Noriega, 189 F.3d 1089, 1097 (9th
Cir. 1999) (a party fails to preserve an issue for appeal by making the wrong
specific objection).
As a general rule, a prosecutor may not make vouching remarks or elicit
vouching testimony from witnesses. Cheney v. Washington, 614 F.3d 987, 996 n.4
(9th Cir. 2010). “Improper vouching occurs when the prosecutor places the
prestige of the government behind the witness by providing personal assurances of
the witness’s veracity,” and “where the prosecutor suggests that the testimony of
government witnesses is supported by information outside that presented to the
jury.” United States v. Stinson, 647 F.3d 1196, 1212 (9th Cir. 2011) (citation
omitted).
The first instance of alleged vouching occurred when the prosecutor asked
Trooper Sailer why law enforcement responded quickly to the cellmate’s
allegations, to which Trooper Sailer answered because of the immediate, severe,
and possibly realistic threat to Keeling’s ex-girlfriend. We see no plain error in this

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testimony. Trooper Sailer’s response did not imply any extra-record knowledge,
nor did Trooper Sailer personally assure the jury of, or express any belief in, the
cellmate’s truthfulness. Rather, Trooper Sailer merely testified that law
enforcement responded swiftly given the immediate, severe, and possibly realistic
allegation.
The second instance of alleged vouching occurred when the prosecutor
asked Trooper Sailer whether the evidence recovered from Keeling’s apartment
corroborated the cellmate’s allegation. To this question, Trooper Sailer answered
“[a]bsolutely.” Assuming without deciding that this constitutes impermissible
vouching, this instance, on balance, does not warrant reversal for plain error. “‘To
ascertain whether the . . . vouching amounts to plain error, the court balances the
seriousness of the vouching against the effectiveness of any curative instruction
and the closeness of the case.’” United States v. Brooks, 508 F.3d 1205, 1211 (9th
Cir. 2007) (quoting United States v. Daas, 198 F.3d 1167, 1178 (9th Cir. 1999)).
Any prejudice to Keeling was mitigated by the curative instruction directing the
jury to make its own assessment of evidence and to determine Keeling’s innocence
without regard to a witness’s comment on what the evidence means. And most
importantly, given the substantial independent evidence of Keeling’s guilt, we
cannot say this was a close case that rose or fell on the cellmate’s credibility. See
Brooks, 508 F.3d at 1211 (“The strongest factor in concluding there is no plain

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error here is that this was not a close case.”).
III.
Keeling next argues that the district court erred in failing to exclude certain
of the prosecutor’s remarks that, in Keeling’s view, diluted or shifted the
government’s burden of proof. Keeling concedes that he forfeited these objections
at trial, so we review for plain error. United States v. Chung, 659 F.3d 815, 833
(9th Cir. 2011).
During closing arguments, the prosecutor contrasted the government’s case
with the defense’s case and asked the jury: “[w]hich of those things seem more
likely to you, folks?” This comment was well within the bounds of what we have
permitted in other cases. Put in context, this remark was simply an “isolated
moment” amidst the prosecutor’s explanation of the legal elements of the charges
and multiple reminders to the jury about the correct burden of proof. United States
v. Moreland, 622 F.3d 1147, 1163 (9th Cir. 2010) (citation omitted); see United
States v. Wilkes, 662 F.3d 524, 541 (9th Cir. 2011) (concluding it was not improper
burden shifting where prosecutor stated that the jury had to believe the defendant
in order to find he was not guilty because the statement was nothing more than an
isolated moment in the trial).
Keeling also contends that the prosecutor improperly implied that the
government was allied with the district court when the prosecutor told the jury that

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to accept the defense’s theory, it would have to “ignore reason and common
sense.” The prosecutor continued, “[b]ut as the judge is going to instruct you, that
is not the standard here.” Unlike in United States v. Frederick, 78 F.3d 1370, 1379
(9th Cir. 1996), the prosecutor here did not mention the government and the court
in the same breath or otherwise imply an allyship between the two, nor did the
prosecutor imply that defense counsel was asking the jury not to seek the truth.
This was nothing more than a standard, inoffensive reminder to the jury that they
would receive controlling instructions from the district court.
AFFIRMED.

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