United States v. Fabian Monge , 599 F. App'x 280 ( 2015 )

FILED
NOT FOR PUBLICATION MAR 19 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10367
Plaintiff - Appellee, D.C. No. 4:10-cr-00863-RCC-
CRP-1
v.
FABIAN DAVID MONGE, MEMORANDUM*
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 13-10370
Plaintiff - Appellee, D.C. No. 4:10-cr-00863-RCC-
CRP-5
v.
FRANK STEVE LOPEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Page 2 of 3
Submitted March 9, 2015**
San Francisco, California
Before: WALLACE, M. SMITH, and WATFORD, Circuit Judges.
1. Defendants Fabian Monge and Frank Lopez contend federal prosecutors
violated the Jencks Act, 18 U.S.C. § 3500, by failing to produce the Sierra Vista
Police Department’s recording of Belen Romero’s interview. We need not resolve
that issue because we conclude that, even if we credit defendants’ argument, any
violation that occurred was harmless. Romero’s testimony had no impact on the
case against Lopez, whom she did not even mention. Her testimony equally
clearly had no effect on the first three counts of which Monge was convicted, as
those convictions rested primarily on the testimony of Monge’s other drivers. As
to count four (which charged Monge with possession with intent to distribute on
the day Romero was arrested with 272 pounds of marijuana), independent evidence
of Monge’s guilt—including the marijuana in the car, the route Romero drove, and
other drivers’ testimony that Romero worked for Monge—is strong enough to
sustain the conviction beyond a reasonable doubt. See United States v. Cardenas-
Mendoza, 579 F.3d 1024, 1032–33 (9th Cir. 2009).
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Page 3 of 3
2. Defendants also argue that the jury should have been instructed that it
could draw an adverse inference from the government’s failure to record a witness
interview. The district court properly rejected defendants’ proposed instruction as
having no legal basis, and instead allowed defendants to argue for an adverse
inference in closing arguments. Defendants cite no authority on appeal that calls
into question the district court’s ruling.
3. Nothing in the prosecutor’s rebuttal argument warranted a mistrial. The
prosecutor’s allegations about the twin defendants and about reputation evidence
had nothing to do with Monge and Lopez. None of the prosecutor’s comments
about the defense’s case or the defense attorneys were impermissibly
inflammatory. The prosecution’s statement that witness Michael Kreyling “didn’t
lie” did not amount to a personal assurance of Kreyling’s credibility but instead
was a segue between a summary of Kreyling’s testimony and the evidence
corroborating it.
4. Appellant Monge’s motion for resentencing is more appropriately
directed to the district court in the first instance. We therefore DENY the motion
without prejudice.
AFFIRMED.