895 F. 2d 1418 - United States v. Ioelu

MEMORANDUM**

Paniani Ioelu appeals his conviction following a jury trial for simple assault. The district court sentenced Ioelu to two years probation and ordered him to pay a $250 fine. The district court also ordered Ioelu to pay a special assessment fee. We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm in part and reverse and remand in part.

During closing argument, the prosecutor erroneously stated that Ioelu had stipulated to the assault. The district court then cautioned the jury that while Ioelu had stipulated to the incident occurring within United States jurisdiction, Ioelu did not stipulate to committing an assault. In its charge to the jury, the district court again cautioned the jury that Ioelu's stipulation was only to United States jurisdiction, and that it was the jury's role "to determine whether an offense was committed."

Ioelu contends that the prosecutor's misstatement requires reversal. We review for harmless error. United States v. Alvarado, 817 F.2d 580, 587 (9th Cir.1987). A defendant is not prejudiced if the district court, following a misstatement, acts "quickly, emphatically, and appropriately to neutralize" prejudice by issuing curative instructions. Id.

Here, the district court properly acted to cure the prejudice of the prosecutor's misstatement. Accordingly, we affirm Ioelu's conviction.

Although Ioelu did not raise the issue in his appeal, we have held that the special assessment provisions of 18 U.S.C. Sec. 3013 violate the origination clause of the Constitution, article I, section 7. United States v. Munoz-Flores, 863 F.2d 654, 661 (9th Cir.1988), cert. granted, 110 S.Ct. 48 (1989). Therefore, we reverse the special assessment part of Ioelu's sentence and remand to the district court with instructions to vacate it. See Shah v. United States, 878 F.2d 1156, 1163 (9th Cir.), cert. denied, 110 S.Ct. 195 (sua sponte reversal of special assessment on appeal).

AFFIRMED in part and REVERSED and REMANDED in part.