Defendant's assault conviction is affirmed in part where, although the prosecutors engaged in improper questioning during cross-examination and improper vouching during closing arguments, the court could not say the prosecutors' misconduct affected the outcome of the district court proceedings. However, defendant's conviction is reversed in part where the jury instruction on one count defined "force" out of the statute entirely by equating it with physical intimidation.
Argued and Submitted May 13, 2009
Filed August 19, 2009
Opinion by Judge Kozinski
Partial Concurrence and Partial Dissent by Judge Bybee