United States v. Jorge Bravo-Rosas , 607 F. App'x 632 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 13 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-50405
Plaintiff - Appellee, D.C. No. 3:12-cr-05132-JLS-1
v.
MEMORANDUM*
JORGE FRANCISCO BRAVO-ROSAS,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted April 6, 2015
Pasadena, California
Before: SILVERMAN and BEA, Circuit Judges and DONATO,** District Judge.
Jorge Francisco Bravo-Rosas appeals his conviction for illegal reentry after
removal in violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C.
§ 1291.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James Donato, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
I.
To convict a defendant of “illegal reentry under 8 U.S.C. § 1326, the
Government must establish that the defendant ‘left the United States under order of
exclusion, deportation, or removal, and then illegally reentered.’” United States v.
Raya-Vaca, 771 F.3d 1195, 1201 (9th Cir. 2014) (quoting United States v.
Barajas–Alvarado, 655 F.3d 1077, 1079 (9th Cir. 2011)). Bravo filed a motion to
dismiss the indictment to challenge the validity of the expedited removal order that
served as the basis for his conviction, as was his right under the Fifth Amendment.
See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). We
review “a denial of a motion to dismiss an 8 U.S.C. § 1326 indictment de novo
when the motion is based upon . . . alleged due process defect[s] in the underlying
deportation proceeding.” Raya-Vaca, 771 F.3d at 1201 (9th Cir. 2014) (quoting
United States v. Camacho–Lopez, 450 F.3d 928, 929 (9th Cir. 2006)). We review
for clear error the district court’s findings of fact. Id.The district court applied the framework we articulated in Barajas-Alvarado
to find the alleged due process violations during Bravo’s expedited removal did not
prejudice Bravo. We have since refined that framework in Raya-Vaca. Because
the district court did not have the benefit of our opinion in Raya-Vaca, we vacate
its decision to deny Bravo’s motion to dismiss and remand for the district court to
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reevaluate, in light of Raya-Vaca, whether Bravo’s due process rights were
violated and whether he suffered prejudice as a result of the alleged violations. We
leave it to the district court to decide whether the parties should supplement the
evidentiary record before the district court makes its decision.
II.
None of Bravo’s alleged trial errors warrant reversal of Bravo’s conviction.
First, the district court did permit Officer Valdes to testify in violation of the
sequestration order. But “[a] witness is not [automatically] disqualified merely
because he remains in the courtroom after a sequestration order.” United States v.
English, 92 F.3d 909, 913 (9th Cir. 1996) (citation omitted). Disqualification is
“strongly disfavored.” Id. The prosecutor was unaware of Bravo’s “official
restraint” defense until after the prosecutor excused Officer Valdes. As a result,
there was “no indication the prosecution intended to violate the court’s order.” Id.The district court therefore did not abuse its discretion. Id.Second, the district court correctly instructed the jury on Bravo’s “official
restraint” defense. For a defendant to be entitled to a jury instruction, his proposed
instruction must have a “basis in fact and law.” United States v. Romm, 455 F.3d
990, 1002 (9th Cir. 2006). To that end, we have held that “those who evade
government observation while crossing the border are deemed to be free from
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official restraint, regardless of the distance they travel between entry and arrest.”
United States v. Cruz-Escoto, 476 F.3d 1081, 1085–86 (9th Cir. 2007) (some
emphasis in original). Bravo’s proposed jury instruction asked the jury to
consider, among other factors, “the distance he may have traveled into the United
States” and “the amount of time he may have been physically present in the United
States prior to apprehension.” The instruction therefore did not have a “basis in
law.”
Third, the prosecutor did not improperly vouch for Officer Valdes during
closing argument because the prosecutor did not “place[] the prestige of the
government behind [Valdes] by providing personal assurances of” Valdes’s
testimony or suggest that Valdes’s testimony was “supported by information
outside that presented to the jury.” United States v. Wright, 625 F.3d 583, 610 (9th
Cir. 2010) (citation omitted). Further, the prosecutor could suggest Bravo’s
testimony was not credible because it was “reasonable to infer, and hence to argue,
that one of the two sides [was] lying.” United States v. Ruiz, 710 F.3d 1077, 1083
(9th Cir. 2013); see also United States v. Molina, 934 F.2d 1440, 1445 (9th Cir.
1991) (same).
Fourth, the prosecutor’s statement during closing argument that Castro “was
hiding in that brush because he was a convicted felon” does not warrant reversal
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even if defense counsel properly objected below. See United States v. Vaandering,
50 F.3d 696, 701 (9th Cir. 1995). Though the government conceded the statement
was improper at oral argument, “[e]stablishing . . . prosecutorial misconduct is not
in and of itself sufficient to merit reversal of a conviction.” United States v. Berry,
683 F.3d 1015, 1024 (9th Cir. 2012) (citation omitted). “[I]mproprieties in
counsel’s arguments to the jury do not constitute reversible error unless they are so
gross as probably to prejudice the defendant, and the prejudice has not been
neutralized by the trial judge.” Id. (citation omitted). The jury already knew of
Bravo’s conviction because the district court authorized the prosecution to use the
conviction for impeachment purposes. And the prosecutor repeatedly referenced
the conviction for that purpose during closing argument. The prosecutor’s single
improper reference to the conviction as Bravo’s motive for evading immigration
officials was not “so gross as probably to prejudice” Bravo. Id. Further, the
district court’s instruction to the jury that it could consider the conviction “only as
it may affect the defendant’s believability as a witness” neutralized any alleged
prejudice. United States v. Lopez-Alvarez, 970 F.2d 583, 598 (9th Cir. 1992).
VACATED AND REMANDED.
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