United States v. Rodrick Gant , 571 F. App'x 532 ( 2014 )

FILED
NOT FOR PUBLICATION APR 23 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30047
Plaintiff - Appellee, D.C. No. 1:11-cr-00140-RFC-2
v.
MEMORANDUM*
RODRICK D. GANT,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Senior District Judge, Presiding
Argued and Submitted April 11, 2014
Seattle, Washington
Before: HAWKINS, RAWLINSON, and BEA, Circuit Judges.
Appellant Rodrick D. Gant (Gant), who was convicted of conspiracy to
commit robbery affecting interstate commerce in violation of the Hobbs Act,
challenges the district court’s denial of his motion for a mistrial premised on the
government’s misstatement of the law during closing arguments.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Although the government concedes that it misstated the law during closing
arguments concerning application of a firearms stipulation to the Hobbs Act
offense’s jurisdictional element, a mistrial was not warranted because “[t]he
misstatement by the prosecutor was not so gross as probably to prejudice [Gant]. . .
.” United States v. Del Toro-Barboza, 673 F.3d 1136, 1153 (9th Cir. 2012)
(citation and internal quotation marks omitted). The misstatement did not render
Gant’s trial fundamentally unfair due to the significant evidence of Gant’s
participation in the Hobbs Act conspiracy, including audio and video recordings of
Gant’s incriminating statements and conduct. See United States v. Sanchez, 659
F.3d 1252, 1260 (9th Cir. 2011) (observing that “[w]hen the case is particularly
strong, the likelihood that [the misstatement] will affect the defendant’s substantial
rights is lessened because the jury’s deliberations are less apt to be influenced. . .
.”) (citation omitted). The district court also minimized any prejudice associated
with the government’s erroneous argument by properly instructing the jury on the
requisite elements of the Hobbs Act offense and that the attorneys’ arguments were
not evidence. See United States v. Mendoza, 244 F.3d 1037, 1045 (9th Cir. 2001)
(concluding that “[w]hen counsel misstates the law, the misstatement is harmless
error if the court properly instructs the jury on that point of law or instructs that the
attorneys’ statements and arguments are not evidence”) (citation omitted).
2
As Gant acknowledges, his challenge to the sufficiency of the evidence
premised on a conspiracy to rob a fictitious narcotics trafficker is foreclosed by our
precedent. See United States v. Rodriguez, 360 F.3d 949, 957 (9th Cir. 2004).
AFFIRMED.
3