Appeals from the United States District Court for the Southern District of Texas
Before SMITH, DENNIS, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Christopher Poole was convicted of one count of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). After a hearing, the district court vacated the jury verdict and granted a new trial but denied Poole's motion to dismiss the indictment on double-jeopardy grounds. In separate, consolidated appeals, the government challenges the grant of a new trial (No. 12-20486), and Poole attacks the denial of his motion to dismiss the indictment (No. 12-20485).
Because the district court erred in ordering a new trial, we reverse that order and remand with instructions to reinstate the jury verdict and proceed to sentencing. We dismiss Poole's appeal as moot.
Two deputy United States marshals conducted a sex-offender registry check at Poole's house to verify that Poole, a registered sex offender, was still residing there. Poole's girlfriend Alida Fuentes answered the door and gave the marshals written consent to search the house. The marshals uncovered, among other things, two pistols and a semi-automatic rifle; Fuentes told them that the three firearms belonged to Poole. Poole later confirmed during a custodial interview, after being given his Miranda warnings, that he owned and had control over the firearms. He described the weapons and their location in his house, explained where he bought them, how much he paid for them, how long he owned them, and why he had them.
Because he was a convicted felon, Poole was charged with one count of felony possession in violation of 18 U.S.C. § 922(g)(1). At his jury trial, he testified that he had lied to ATF officers about owning the firearms in question so that they would help him get out of jail.
The defense moved for a mistrial three times: (1) after Deputy Marshal Alfredo Lujan (who discovered Poole's gun) had testified on direct examination that one of his duties as a marshal is "to locate and apprehend local and federal fugitives"; (2) after the prosecutor had stated during closing arguments that it was not Poole's "first time in this situation"; and (3) after the prosecutor had asked the jury, also during closing arguments, "Are you going to believe a liar, ladies and gentlemen?" The court overruled the first motion for a mistrial but deferred ruling on the second two.
After the jury returned a guilty verdict, Poole orally renewed his motion, which he then reduced to writing with supporting argument and authorities. The written motion added a fourth objection in support of a mistrial, namely that during closing argument, the government had impermissibly referred to Poole's gun as an "assault rifle." At a hearing the next day, the court vacated the verdict and granted a new trial.
Federal Rule of Criminal Procedure 33(a) provides, in pertinent part: "Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). Where, as in Poole's case, a district court grants a motion for a new trial on the basis of allegedly improper comments by the government at trial, our review proceeds in two steps.
First, we must determine whether the challenged comments were actually improper. If not,  the court would have no discretion to order a new trial. If the prosecutor did make improper comments, we would review the decision to grant a new trial deferentially under the familiar "abuse-of-discretion" standard. At that step, we consider the magnitude of the statement's prejudice, the effect of any cautionary instruction, and the strength of the evidence of guilt.
We turn to the propriety of the challenged comments by the prosecutor. Poole ultimately alleged four errors by the government in his various motions for a new trial (including his penultimate, written motion):
1. Asking Marshal Lujan what his duties were as a U.S. marshal in such a way that suggested Poole was a "fugitive;"
2. Describing Poole's firearm as an "assault rifle" during ...