United States v. Cindi Allison ( 2019 )

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                           NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                       MAR 27 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,                       No.    18-30047
Plaintiff-Appellee,             D.C. No.
3:16-cr-05207-RBL-1
v.
CINDI ALLISON,                                  MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted March 6, 2019
Seattle, Washington
Before: GOULD and PAEZ, Circuit Judges, and PREGERSON,** District Judge.
Defendant Cindi Allison appeals her conviction for wire fraud in violation of
18 U.S.C. § 1343. The conviction arose from Allison’s work as a bookkeeper for
two real estate franchises, and her embezzlement of funds from them in connection
with her bookkeeping work. We have jurisdiction under 28 U.S.C. § 1291, and we
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
affirm.
1.    We review de novo a district court’s decision to deny a request for a jury
instruction on a duress defense. United States v. Ibarra-Pino,

657 F.3d 1000

, 1003
(9th Cir. 2011) (citing United States v. Vasquez-Landaver,

527 F.3d 798

, 802 (9th
Cir. 2008)). A criminal act may be excused by duress where there is “(1) an
immediate threat of death or serious bodily injury, (2) a well-grounded fear that the
threat will be carried out, and (3) lack of a reasonable opportunity to escape the
threatened harm.” United States v. Moreno,

102 F.3d 994

, 997 (9th Cir. 1996).
The last element may be met by demonstrating that the defendant cooperated with
authorities at the first available opportunity.

Ibarra-Pino, 657 F.3d at 1005

−06.
To gain an instruction to the jury on the duress defense, a defendant must make a
prima facie showing on those elements, either in a pretrial offer of proof or at trial.

Id. at 1004.

Here, Allison did not establish a prima facie case that she lacked a
reasonable opportunity to escape or that she cooperated at the first available
opportunity. We conclude that the district court did not err in denying her request
for a jury instruction on the duress defense.
2.    We review the district court’s denial of a missing-witness instruction for
abuse of discretion. United States v. Leal-Del Carmen,

697 F.3d 964

, 975 (9th Cir.
2012). A missing-witness instruction is appropriate where (a) the witness is
“peculiarly within the power” of the opposing party, and (b) it is reasonable to
2
infer that the witness’s testimony would have been unfavorable to the party that
controls the witness.

Id. at 974.

Here, Allison was not entitled to the instruction
because there was no showing that Moore was peculiarly in the power of the
government. See United States v. Noah,

475 F.2d 688

, 691 (9th Cir. 1973). We
conclude that the district court did not err in denying her request for a missing
witness instruction.
3.    We review the district court’s ruling on prosecutorial misconduct for abuse
of discretion. United States v. Reyes,

660 F.3d 454

, 461 (9th Cir. 2011). To
prevail, Allison must show that, in the context of the entire trial, “it is more
probable than not that the prosecutor’s conduct materially affected the fairness of
the trial.”

Reyes, 660 F.3d at 461

(quoting United States v. McKoy,

771 F.2d 1207

,
1212 (9th Cir. 1985)).
“Any comment on the absence of defense evidence, beyond pointing out that
the Government’s proof is uncontradicted, risks speculation by a juror that the
defendant must be guilty or else he would have testified.” United States v.
Castillo,

866 F.2d 1071

, 1084 (9th Cir. 1988). A prosecutor’s comments on
credibility can be especially prejudicial where credibility is particularly important
in the case. See United States v. Sanchez,

659 F.3d 1252

, 1260–61 (9th Cir. 2011).
Likewise, a prosecutor commits misconduct by appealing to the jury’s emotions
rather than limiting the prosecutor’s argument to the facts. United States v.
3
Weatherspoon,

410 F.3d 1142

, 1149–50 (9th Cir. 2005). Nevertheless, a
prosecutor may comment on the strength of a defendant’s case without shifting the
burden. See United States v. Tucker,

641 F.3d 1110

, 1122 (9th Cir. 2011); United
States v. Cabrera,

201 F.3d 1243

, 1249–50 (9th Cir. 2000).
Read in context here, the prosecutor’s comments concerned the strength of
Allison’s defense and not her failure to testify. And Allison cannot show that “it is
more probable than not” that the prosecutor’s comments on Moore’s culpability
materially affected the fairness of the trial. See

Reyes, 660 F.3d at 461

.
4.    “The cumulative effect of multiple errors can violate due process even where
no single error rises to the level of a constitutional violation or would
independently warrant reversal.” Parle v. Runnels,

505 F.3d 922

, 927 (9th Cir.
2007) (citing Chambers v. Mississippi,

410 U.S. 284

, 290 n.3 (1973)). But the
cumulative error analysis does not apply where, as here, a defendant “fail[s] to
demonstrate any erroneous decisions.” United States v. Martinez-Martinez,

369 F.3d 1076