United States of America v. David Crosby

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID CROSBY,
Defendant-Appellant.
No. 17-30119
D.C. No. 1:16-cr-00009-SPW-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Susan P. Watters, District Judge, Presiding
Argued and Submitted August 27, 2018
Seattle, Washington
Before: HAWKINS, McKEOWN, and W. FLETCHER, Circuit Judges.
David Crosby appeals his jury trial conviction for failure to register as a sex-
offender, in violation of 18 U.S.C. § 2250. We have jurisdiction under 28 U.S.C. §
1291, and affirm.
Crosby contends that the prosecutor engaged in improper witness vouching
during closing and rebuttal arguments. Because Crosby did not object to the
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
SEP 6 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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prosecutor’s statements during the trial, “we review under the more deferential plain
error standard.” See United States v. Ruiz, 710 F.3d 1077, 1082 (9th Cir. 2013)
(quoting United States v. Wright, 625 F.3d 583, 610 (9th Cir. 2010)).
The prosecutor’s statement that the government’s witness, Stephanie Harman,
had no “dog in the fight” and submission that it was reasonable to believe Ms.
Harman testified truthfully did not cross the line. We have previously held that
statements, analogous to the prosecutor’s statement here, regarding a witness’
motive to lie did not amount to vouching. See United States v. Wilkes, 662 F.3d 524,
540 (9th Cir. 2011); United States v. Nash, 115 F.3d 1431, 1439 (9th Cir. 1997).
The prosecutor’s submission that it was reasonable to believe Ms. Harman
testified truthfully, viewed in context, was an argument of “inference from evidence
in the record” rather than vouching. United States v. Necoechea, 986 F.2d 1273,
1279 (9th Cir. 1993). A prosecutor has “considerable leeway” to argue reasonable
inferences from the evidence, United States v. Tucker, 641 F.3d 1110, 1120 (9th Cir.
2011) (citation omitted), and the statements here did not place “[the government’s]
own prestige behind the witness” or “indicat[e] that extrinsic information not
presented in court support[ed] the witness’ testimony,” United States v. Simtob, 901
F.2d 799, 805 (9th Cir. 1990).
Even if vouching did occur, Crosby has not “demonstrate[d] a reasonable
probability that he wouldn’t have been found guilty had the error not occurred.” See

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United States v. Rangel-Guzman, 752 F.3d 1222, 1225–26 (9th Cir. 2014). The
record demonstrates that (1) the government offered sufficient evidence aside from
Ms. Harman’s testimony; (2) the prosecutor’s statements followed the defense’s
attack on Ms. Harman’s testimony; and (3) the jury was properly instructed on its
duty to evaluate witness credibility and the appropriate considerations for doing so.
AFFIRMED.

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