United States v. Winston Bontrager

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 27 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30339
Plaintiff - Appellee, D.C. No. 2:12-cr-00061-RAJ-1
v.
MEMORANDUM*
WINSTON BONTRAGER,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 13-30340
Plaintiff - Appellee, D.C. No. 2:12-cr-00061-RAJ-2
v.
PAULINE ANDERSON,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted July 9, 2015
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: NGUYEN and FRIEDLAND, Circuit Judges and ZOUHARY,** District
Judge.
Winston Bontrager and Pauline Anderson (“Defendants”) appeal their
convictions stemming from a tax-evasion scheme. We affirm.
We review Defendants’ prosecutorial misconduct claims for plain error
because no objection was made below. See United States v. Tomsha-Miguel, 766
F.3d 1041, 1047 (9th Cir. 2014). It is clear that some misconduct occurred. For
example, it was improper for the prosecutor to refer to Bontrager’s accountant, a
prosecution witness, as “meticulous, careful and honest,” when the accountant
offered strong evidence against Bontrager. See United States v. Necoechea, 986
F.2d 1273, 1276 (9th Cir. 1993) (“Vouching consists of placing the prestige of the
government behind a witness through personal assurances of the witness’s
veracity, or suggesting that information not presented to the jury supports the
witness’s testimony.”); United States v. Kerr, 981 F.2d 1050, 1053 (9th Cir. 1992)
(holding that it was impermissible vouching for prosecutor to say in closing
argument that a prosecution witness “was candid. I think he was honest”). It also
was improper for the prosecutor to offer his own account of when federal agents
“spring into action” and “careful[ly] . . . [and] methodical[ly] . . . . go through
**
The Honorable Jack Zouhary, District Judge for the U.S. District
Court for the Northern District of Ohio, sitting by designation.
2
every piece of evidence” in preparing a case for trial, an account that had no basis
in the evidence. Cf. United States v. Alcantara-Castillo, --- F.3d ---, 2015 WL
3619853, at *7 (9th Cir. June 11, 2015).
Furthermore, although Defendants’ lavish spending was indisputably
relevant to the tax charges, see United States v. Johnson, 319 U.S. 503, 517 (1943),
the prosecution repeatedly crossed the line with comments such as those asserting
that Defendants “lived a life that most of us can only dream of.” Finally, it was
improper when, notwithstanding a jury instruction to the contrary, both defense
counsel and the prosecution discussed the testimony of Bontrager’s ex-girlfriend in
relation to Anderson’s guilt or innocence.
We affirm, however, because Defendants have failed to establish that any of
the alleged misconduct “affected the outcome of the district court proceedings.”
United States v. Chi Mak, 683 F.3d 1126, 1133 (9th Cir. 2012) (quoting Puckett v.
United States, 556 U.S. 129, 135 (2009)). This was not a close case. The evidence
of guilt was overwhelming and Defendants have failed to show that the credibility
of the vouched-for witnesses was meaningfully challenged. See United States v.
Weatherspoon, 410 F.3d 1142, 1151 (9th Cir. 2005) (“When the case [against a
defendant] is particularly strong, the likelihood that prosecutorial misconduct will
affect the defendant’s substantial rights is lessened because the jury’s deliberations
are less apt to be influenced.”). Nonetheless, in light of the numerous, obvious
3
instances of improper argument by the prosecutor, particularly improper vouching,
we are disturbed that the government refused to concede any error in its briefing or
at oral argument, despite repeated invitations to do so by the panel. See Berger v.
United States, 295 U.S. 78, 88 (1935) (“[W]hile [a prosecutor] may strike hard
blows, he is not at liberty to strike foul ones.”).
Anderson’s challenge to the voir dire questions also does not warrant
reversal. The prosecutor’s questions did not bias the jury against Defendants and
were not “so unreasonable [that allowing them] constitute[d] an abuse of
discretion.” United States v. Anzalone, 886 F.2d 229, 234 (9th Cir. 1989) (quoting
United States v. Flores-Elias, 650 F.2d 1149, 1151 (9th Cir. 1981)).
The district court did not err when it admitted evidence of Bontrager’s prior
conviction pursuant to Federal Rule of Evidence 404(b). See Huddleston v. United
States, 485 U.S. 681, 685-86 (1988); United States v. Marashi, 913 F.2d 724, 734-
35 (9th Cir. 1990); Fed. R. Evid. 403. Contrary to Defendants’ contention, the trial
evidence regarding the prior conviction was consistent with the prosecution’s pre-
trial proffer.1
Finally, in light of the strength of the prosecution’s case, reversal is also not
warranted under the cumulative error doctrine. See United States v. Fernandez,
1
Since this evidence was properly admitted pursuant to Rule 404(b), we express no
view as to whether the district court correctly concluded that it was “inextricably
intertwined” with the present offenses.
4
388 F.3d 1199, 1256-57 (9th Cir. 2004), amended in non-relevant part, 425 F.3d
1248 (9th Cir. 2005).
AFFIRMED.
5