United States v. Brooks Case ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30188
Plaintiff-Appellee, D.C. No.
1:19-cr-00360-BLW-2
v.
BROOKS ALLAN CASE, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted June 11, 2021
Seattle, Washington
Before: W. FLETCHER, WATFORD, and COLLINS, Circuit Judges.
Brooks Allan Case appeals from the district court’s judgment of conviction
for one count of distribution of five grams or more of methamphetamine in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). We affirm.
1. The district court properly denied Case’s post-trial motion for judgment
of acquittal. The government presented sufficient evidence supporting the jury’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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conclusion that Case was the source of the methamphetamine sold to the
confidential informant.
The informant testified that she and Vanessa Campos waited at the house for
roughly 45 minutes for the source to arrive so that their agreed-upon sale could be
conducted. When the source arrived, Campos left the informant, met separately
with the source, and returned shortly thereafter with the methamphetamine that she
sold to the informant. The source then left the house driving a dark-colored GMC
Envoy. Task-force officers followed the Envoy and took photographs of the
vehicle and its driver at a nearby gas station, which allowed them to later identify
Case as the driver and owner of the vehicle. Viewed in the light most favorable to
the government, this evidence provided ample support for the jury’s conclusion
that Case was the person who arrived at the house and supplied the
methamphetamine that Campos sold to the informant. See United States v. Hinton,
222 F.3d 664, 669 (9th Cir. 2000).
2. Nothing the prosecutor said during closing argument warrants reversal of
Case’s conviction. Case contends that the prosecutor engaged in misconduct by:
(1) arguing that the informant could not identify Case at trial as the source because,
in compliance with COVID-19 protocols, he was wearing a mask; (2) misstating
the evidence by repeatedly using the term “the Defendant” when discussing the
informant’s testimony, even though the informant was unable to identify Case; and
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(3) vouching for the credibility of the government’s witnesses. Even assuming for
the sake of argument that any of these remarks amounted to misconduct, Case has
failed to establish that he was prejudiced. Taken in the context of the trial as a
whole, none of the prosecutor’s statements materially affected the verdict. See
United States v. Christophe, 833 F.2d 1296, 1301 (9th Cir. 1987); United States v.
Tham, 665 F.2d 855, 860 (9th Cir. 1981).
3. The district court did not violate Case’s Sixth Amendment right to cross-
examine and confront Campos when the court found her in contempt and
dismissed her from the witness stand. What little testimony Campos provided
before being dismissed was favorable to Case. To the extent Case sought to cross-
examine Campos concerning that testimony, he could have requested an
opportunity to do so when the district court inquired whether there was “anything
else” after dismissing Campos as a witness and before recessing. Case failed to
make any such request. Moreover, to the extent Case believed he was prejudiced
by his inability to cross-examine Campos, any such prejudice would have been
remedied by striking Campos’s testimony in its entirety and instructing the jury to
disregard it. See Toolate v. Borg, 828 F.2d 571, 572–73 (9th Cir. 1987). When the
government moved to strike Campos’s testimony, however, Case objected.
Accordingly, he cannot now claim that his inability to cross-examine Campos
violated his Sixth Amendment rights.
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AFFIRMED.