United States v. Giordano Jackson

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 3 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10070
Plaintiff-Appellee, D.C. No.
3:17-cr-08242-DJH-1
v.
GIORDANO JACKSON, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 19-10071
Plaintiff-Appellee, D.C. No.
3:12-cr-08212-DJH-1
v.
GIORDANO JACKSON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
Argued and Submitted December 8, 2021
Pasadena, California
Before: W. FLETCHER, RAWLINSON, and OWENS, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Defendant Giordano Jackson appeals from his conviction for first-degree
murder in violation of 18 U.S.C. § 1111. As the parties are familiar with the facts,
we do not recount them here. We have jurisdiction under 18 U.S.C. § 1291, and
we affirm.1
1. Jackson argues that the district court improperly restricted his cross-
examination of a treating physician. We review evidentiary rulings, including the
decision to exclude expert testimony, for abuse of discretion. See United States v.
Rodriguez, 971 F.3d 1005, 1017 (9th Cir. 2020). The parties dispute whether
harmless error or plain error review applies, but we need not resolve that dispute,
as there was no error.
The district court properly classified the sought testimony—the rate at which
alcohol dissipates from the body—as expert testimony, not lay opinion testimony.
See Fed. R. Evid. 701(c). The district court did not abuse its discretion by
excluding expert testimony after the witness testified that she was “not an expert in
this” and could not “list all of [the relevant factors] off the top of [her] head”
without “research.” The exclusion did not violate Jackson’s Confrontation Clause
rights, as it “left the jury with sufficient information to assess the credibility of the
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Jackson also challenges the sufficiency of the evidence for his kidnapping
conviction under 18 U.S.C. § 1201(a)(2). We reverse that conviction in a
concurrently-filed published opinion. Jackson also filed an appeal of the
revocation of his supervised release in a separate case, but he conceded that there
are “no independently meritorious appellate issues” related to that revocation.
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witness.” United States v. Larson, 495 F.3d 1094, 1103 (9th Cir. 2007) (en banc).
Nor did it violate Jackson’s right to present a complete defense, as nothing
prevented Jackson from introducing the sought testimony through his own expert.
Cf. United States v. Stever, 603 F.3d 747, 755, 757 (9th Cir. 2010) (reversing
where adverse discovery ruling and evidentiary exclusions entirely foreclosed
defense theory).
2. Jackson next argues that the government’s evidence was insufficient
to prove premeditation beyond a reasonable doubt. In assessing the sufficiency of
the evidence, we “determine whether ‘after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” United States v.
Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).
The government presented sufficient evidence of premeditation to sustain
the first-degree murder conviction. “Premeditation can be proved by
circumstantial evidence,” including evidence of “[m]ultiple strikes with multiple
weapons over a long period of time”; calculated behavior before, during, and/or
after the killing; and a pre-existing relationship between the defendant and victim.
United States v. Reza-Ramos, 816 F.3d 1110, 1123-24 (9th Cir. 2016); see Guam v.
Atoigue, 508 F.2d 680, 681-82 (9th Cir. 1974). The evidence at trial—including
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the number and location of the victim’s wounds, the prior romantic relationship
between the defendant and the victim, and Jackson’s behavior after the killing—
can support an inference of premeditation. Jackson’s arguments that the evidence
could be construed to show a lack of premeditation are unavailing, as we “must
presume—even if it does not affirmatively appear in the record—that the trier of
fact resolved any . . . conflicts in favor of the prosecution.” Nevils, 598 F.3d at
1164 (quoting Jackson, 443 U.S. at 326).
3. Jackson next argues that the government committed misconduct in its
closing arguments by alleging that Jackson, inter alia, searched for the murder
weapon in his house, started beating the victim in his house, enjoyed domestic
abuse, and lied about being intoxicated at the time of the murder. To prevail on a
misconduct claim, the defendant must first prove that the prosecutor’s actions were
misconduct and then prove prejudice. See United States v. Wright, 625 F.3d 583,
609-10 (9th Cir. 2010), superseded by statute on other grounds, 18 U.S.C.
§ 2252A(a)(1). Because Jackson did not object at trial, we review for plain error.
See United States v. Molina, 934 F.2d 1440, 1444 (9th Cir. 1991).
The government’s arguments that Jackson lied were not misconduct. In a
case like this one that “essentially reduces to which of two conflicting stories is
true,” it is not unreasonable to argue “that one of the two sides is lying.” Id. at
1445. The government’s graphic descriptions about Jackson’s proclivities for
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domestic abuse present a closer call, but on balance, those arguments were “hard
blows” tied to “reasonable inferences from the evidence.” Wright, 625 F.3d at 613(quoting United States v. Henderson, 241 F.3d 638, 652 (9th Cir. 2000)); see
United States v. Rude, 88 F.3d 1538, 1547-48 (9th Cir. 1996); United States v.
Bracy, 67 F.3d 1421, 1431 (9th Cir. 1995). The government’s statements about
Jackson’s conduct in his home—searching for the weapon and beating the victim
there—are arguably grounded in guesswork rather than inferences and evidence.
See United States v. Hermanek, 289 F.3d 1076, 1082, 1101 (9th Cir. 2002).
Nonetheless, Jackson cannot establish plain error: Given “the evidence supporting
the jury’s verdict, we do not believe that permitting that verdict to stand constitutes
a miscarriage of justice.” Molina, 934 F.2d at 1446.
4. Finally, Jackson argues that the cumulative effect of errors warrant
reversal. However, “[t]here can be no cumulative error” where, as here, there was
not “more than one error.” United States v. Solorio, 669 F.3d 943, 956 (9th Cir.
2012).
AFFIRMED.
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