When I read the majority opinion by Judge Randy Smith, I thought it seemed right. But then I read the dissent by Judge Gilman, sitting by designation from the Sixth Circuit. Judge Gilman's right.
Whether the error is harmless is a close question. Judge Gilman's right that the case -- a border marijuana bust -- involved a classic credibility call. Defendant said he didn't know about the drugs, the U.S. Attorney tried to cast doubt on his story, and the question is whether the defendant is telling the truth. Cases that turn almost entirely on credibility usually aren't ones in which we can say -- as Judge Smith does -- that the evidence is "so strong" that errors are harmless. So I tend to think that Judge Gilman has the better of the harmless error argument.
That said, again, it's close. Truth be told, were I on the jury, I'd probably have voted to convict. The defendant seems guilty. Beyond a reasonable doubt, even. I'm pretty darn sure he knew the stuff was there.
But someone could easily take a different approach. I wouldn't say they were nutty. Which is why I think Judge Gilman has -- slightly -- the better of the argument.
But as to whether or not there was error, well, on that point, even though I was persuaded by Judge Smith at the outset, after hearing from Judge Gilman, I feel like that point's not close at all. During his closing argument, the AUSA made a huge point of the fact that the defendant didn't have any luggage in the cab of the trailer, asserting that this proved that the defendant's story was false. That argument was totally new. It had never been made before. And may not even have been based upon the record at trial. Given those facts, I think it was indeed error not to grant the defendant the ability to respond to that argument in a brief surrebuttal -- as precedent in fact requires. It's only fair that when the government makes a new argument, defendant is allowed to respond. Especially when, as here, the AUSA admitted that he deliberately "sandbagged" the defendant by not making this claim until the closing argument, at which point defendant wouldn't have a chance to respond.
Judge Randy Smith argues that defendant "opened the door" to this argument because his closing argument alleged that his story was more credible than the government's theory of the case. But that didn't "open the door" to anything: it was instead the whole point of defendant's defense. If repeating that theory "opens the door" to new arguments, then Judge Gilman's right that it "opens the door" to everything. The AUSA could argue, for the first time ever, that defendant's a liar because he lied on his tax returns and committed adultery, with no opportunity for the defendant to respond (or to even point out that there's no evidence at all about either of these facts). Since that allegedly "responds" to the defendant's claim that his story is more credible. Seems wrong to me. Too unlimited.
Usually I don't think closing arguments matter much. It's an exceptionally rare case when I'd say that the failure to give a surrebuttal require a new trial.
But when, as here, the AUSA admits he sandbagged the defendant, and makes a new argument in closing that way well not be supported by the evidence and to which the defendant has not chance at all to respond; well, that may well be the exception that proves the rule.
P.S. - I still hate the font and format the Ninth Circuit now uses in the slip opinions. I even hate it more when, as here, the Ninth Circuit leaves out the first line of the opinion that tells you who's writing the thing (or if it's per curiam) and so you have to go back and look at the caption. Ugh.