United States of America v. Matthew Zmuda

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MATTHEW ZMUDA,
Defendant - Appellant.
No. 14-10348
D.C. No. 1:13-cr-00246-HG-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Helen W. Gillmor, Senior District Judge, Presiding
Submitted October 15, 2015**
Honolulu, Hawaii
Before: O’SCANNLAIN, TALLMAN, and M. SMITH, Circuit Judges.
Matthew Zmuda appeals his conviction for importation of, and conspiracy to
possess with intent to distribute, methamphetamine and heroin, and attempt to
possess with intent to distribute methamphetamine under 21 U.S.C. §§ 841 and
FILED
OCT 20 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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 Federal Rule of Appellate Procedure 34(a)(2).

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846. Zmuda contends that the district court abused its discretion in refusing to
grant him a mistrial, and that the district court erred in prohibiting the use of the
word “lie” in closing argument. We have jurisdiction under 28 U.S.C. § 1291 and
we affirm.
I
The district court did not abuse its discretion when it declined to grant
Zmuda a mistrial because Zmuda failed to demonstrate that there was a “high
degree” of necessity requiring the grant of a mistrial. Arizona v. Washington, 434
U.S. 497, 506 (1978).
To the extent that Zmuda construes his claim to be one for ineffective
assistance of counsel, such an argument is “more appropriately reserved for habeas
corpus proceedings, where facts outside the record, but necessary to the disposition
of the claim, may be fully developed.” United States v. Laughlin, 933 F.2d 786,
788 (9th Cir. 1991). Given the current record, Zmuda has failed to satisfy the
requisite prejudice showing under Strickland v. Washington, 466 U.S. 668, 694
(1984) (“The defendant must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.”). Any error in denying the mistrial was therefore also harmless.
II
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The district court did not err in prohibiting the use of the word “lie” in
closing argument. While under the Sixth Amendment a defendant should be
allowed to argue a theory of defense in closing where at least some evidence
supports it, United States v. Miguel, 338 F.3d 995, 1002 (9th Cir. 2003), “[t]he
presiding judge must be and is given great latitude in controlling the duration and
limiting the scope of closing summations . . . . He may ensure that argument does
not stray unduly from the mark, or otherwise impede the fair and orderly conduct
of the trial.” Herring v. New York, 422 U.S. 853, 862 (1975).
Here, the district court permitted defense counsel to argue her theory of the
case—namely, that witnesses Antoine Lewis and Sergeant Rose were “not
credible.” Though the word “lie” may have had a more powerful impact on the
jury, in exercising its “great latitude” over closing arguments, the district court did
not commit plain error in requiring defense counsel to use alternate verbiage in
reference to witnesses. See United States v. Castillo-Marin, 684 F.3d 914, 918 (9th
Cir. 2012) (defining a plain error as one that is “clear or obvious,” implicates the
“substantial rights” of the defendant, and “seriously affect[s] the fairness, integrity
or public reputation” of the trial). Given the overwhelming evidence presented
against Zmuda, which included a signed confession, if the district court had in fact
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erred in forbidding the word “lie,” such error was harmless. See Delaware v. Van
Arsdall, 475 U.S. 673, 684 (1986).
AFFIRMED.
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