U.S. v. Maloney, No. 11-50311 (11-14-12)(N. Smith with Tallman; dissent by Gilman, Sr. C.J. 6th).

This is not a good opinion for the defense. First, the 9th seems to grant free reign to prosecutors on their rebuttal under an expansive "open door" interpretation. Second, the 9th is generous in allowing a rehabilitation of a biased juror. Finally, the 9th rejects a proffered character evidence instruction, finding that character evidence is basically like all other evidence.

The defendant was a commercial truck driver. He was buying his rig from an owner, who conveniently put paperwork in the defendant's name. On a trip where he was stopped, his companion disappeared before he was to drop a load. At a checkpoint, marijuana was found in the cab. The defendant plead ignorance. The trial revolved around that.

In closing, the defense argued how evidence supported his theory. On rebuttal, the prosecutor unloaded, arguing credibility and saying that if the defendant was going on a trip, where was the luggage. Yet, there was no evidence, one way or the other, as to luggage. Defense counsel asked for surrebuttal but was denied. On appeal, the 9th found no abuse of discretion. Prosecution rebuttal can be inferred from the evidence, and here, the lack of evidence could be viewed as an open door. The dissent took issue, finding the response went far afield when there was no evdience presented. The door was not open, argued the dissent, because everyone had walked past it. It also was not harmless error as the case turned on the credibility of the defendant and his argument that he was set up.

Turning to the juror issue, the 9th found no abuse of discretion when the court kept the juror on, even after the juror said that police had a "leg up" in credibility. The court got the juror to say that he could put his favorable feelings aside. The juror even admitted that police have human frailties. Against the defense argument that the juror should have been struck, the 9th found that he was rehabilitated.

This analysis makes it difficult to strike for cause, but defense counsel should grasp on to any juror who hesitant about "frailties" or wants to favor police.

Lastly, the 9th found no error in denying a character instruction. The 9th basically does not feel that character evidence needs to be highlighted. The evidence is covered in the standard instructions.