Rodney Lee ROLLNESS, petitioner, v. UNITED STATES.Case below, 320 Fed.Appx. 797;561 F.3d 996. Petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit denied.
See id., at 643–45, 94 S.Ct. 1868. Federal courts have since typically relied on Donnelly in making a determination of whether ambiguous prosecution argument deprived the defendant of a fair trial. See, e.g., Littlejohn v. Trammell, 704 F.3d 817, 837–38 (10th Cir.2013); United States v. Nicolo, 421 Fed.Appx. 57, 62 (2d Cir.), cert. denied, ––– U.S. ––––, 132 S.Ct. 338, 181 L.Ed.2d 212 (2011); Hein v. Sullivan, 601 F.3d 897, 916 (9th Cir.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 2093, 179 L.Ed.2d 890 (2011); United States v. Two Elk, 536 F.3d 890, 907 (8th Cir.2008); but see United States v. Stinefast, 724 F.3d 925, 930 (7th Cir.2013) “[g]iven that the comments at issue are ambiguous at best, we are not inclined to find that the prosecutor's statement was clearly improper”); United States v. Rollness, 320 Fed.Appx. 797, 798 (9th Cir.) (“[t]he first [challenged] statement is ambiguous when considered in context, and therefore does not rise to the level of misconduct”), cert. denied, 558 U.S. 956, 130 S.Ct. 445, 175 L.Ed.2d 287 (2009).Although this court has cited Donnelly in connection with a determination of whether any impropriety occurred, we have relied on it to reject a damaging interpretation that was not reasonably likely to be adopted by the jury.
Federal courts have since typically relied on Donnelly in making a determination of whether ambiguous prosecution argument deprived the defendant of a fair trial. See, e.g., Littlejohn v. Trammell, 704 F.3d 817, 837-38 (10th Cir. 2013); United States v. Nicolo, 421 Fed. Appx. 57, 62 (2d Cir.), cert. denied, U.S. , 132 S. Ct. 338, 181 L. Ed. 2d 212 (2011); Hein v. Sullivan, 601 F.3d 897, 916 (9th Cir. 2010), cert. denied, U.S. , 131 S. Ct. 2093, 179 L. Ed. 2d 890 (2011); United States v. Two Elk, 536 F.3d 890, 907 (8th Cir. 2008); but see United States v. Stinefast, 724 F.3d 925, 930 (7th Cir. 2013) ("[g]iven that the comments at issue are ambiguous at best, we are not inclined to find that the prosecutor's statement was clearly improper"); United States v. Rollness, 320 Fed. Appx. 797, 798 (9th Cir.) ("[t]he first [challenged] statement is ambiguous when considered in context, and therefore does not rise to the level of misconduct"), cert. denied, 558 U.S. 956, 130 S. Ct. 445, 175 L. Ed. 2d 287 (2009). Although this court has cited Donnelly in connection with a determination of whether any impropriety occurred, we have relied on it to reject a damaging interpretation that was not reasonably likely to be adopted by the jury.
Federal courts have since typically relied on Donnelly in making a determination of whether ambiguous prosecution argument deprived the defendant of a fair trial. See, e.g., Littlejohn v. Trammell, 704 F.3d 817, 837–38 (10th Cir.2013); United States v. Nicolo, 421 Fed.Appx. 57, 62 (2d Cir.), cert. denied, ––– U.S. ––––, 132 S.Ct. 338, 181 L.Ed.2d 212 (2011); Hein v. Sullivan, 601 F.3d 897, 916 (9th Cir.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 2093, 179 L.Ed.2d 890 (2011); United States v. Two Elk, 536 F.3d 890, 907 (8th Cir.2008); but see United States v. Stinefast, 724 F.3d 925, 930 (7th Cir.2013) “[g]iven that the comments at issue are ambiguous at best, we are not inclined to find that the prosecutor's statement was clearly improper”); United States v. Rollness, 320 Fed.Appx. 797, 798 (9th Cir.) (“[t]he first [challenged] statement is ambiguous when considered in context, and therefore does not rise to the level of misconduct”), cert. denied, 558 U.S. 956, 130 S.Ct. 445, 175 L.Ed.2d 287 (2009). Although this court has cited Donnelly in connection with a determination of whether any impropriety occurred, we have relied on it to reject a damaging interpretation that was not reasonably likely to be adopted by the jury.