United States v. Armando Palomo , 714 F. App'x 799 ( 2018 )

FILED
NOT FOR PUBLICATION
MAR 13 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50488
Plaintiff - Appellee, D.C. No. 3:16-cr-01150-JM-1
v.
MEMORANDUM*
ARMANDO MONTIEL PALOMO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding
Submitted March 8, 2018**
Pasadena, California
Before: GOULD and MURGUIA, Circuit Judges, and ZOUHARY,*** District Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
Armando Montiel Palomo appeals his conviction for importing
methamphetamine in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
1. The district court did not abuse its discretion in allowing Officer Fosdick
to explain why his attention was drawn to Palomo at the border crossing. See United
States v. Gilley, 836 F.2d 1206, 1213 (9th Cir. 1988). Fosdick’s impression that
Palomo was nervous was relevant circumstantial evidence of an essential element of
the offense: whether Palomo knew he was importing a controlled substance. This
Court has repeatedly upheld the admissibility of such testimony in drug importation
cases. See United States v. Munoz, 412 F.3d 1043, 1050 (9th Cir. 2005); United States
v. Gutierrez-Espinosa, 516 F.2d 249, 250 (9th Cir. 1975).
2. Nor did the district court abuse its discretion in overruling Palomo’s
claims of prosecutorial misconduct. See United States v. Tucker, 641 F.3d 1110, 1120
(9th Cir. 2011). First, the Government did not misstate the evidence during closing
argument. One of the trial prosecutors characterized Palomo’s statement during a
June 2016 jailhouse phone call—“I got caught”—as an admission of guilt. Palomo
contends this misled the jury into believing he never protested his innocence after his
arrest. But the prosecutor clearly limited her comments to that single recorded phone
call and did not purport to describe Palomo’s conduct during any other conversations.
2
Further, though Palomo took the stand, he did not seek to introduce evidence of the
other calls. See Fed. R. Evid. 801(d)(1)(B)(ii). The district court did not err in
overruling Palomo’s objection and declining to issue a curative instruction.
Second, the Government did not commit misconduct during rebuttal closing
argument by describing a defense tactic as a “shell game.” Another trial prosecutor
criticized Palomo’s choice of character witnesses—one had last seen Palomo a month
before his arrest, and the other had not socialized with him for several years. The
prosecutor implied the defense was attempting to hide the truth by calling witnesses
who did not know Palomo very well. But criticizing defense tactics is fair game
during closing, and this type of argument is generally considered “well ‘within normal
bounds of advocacy.’” United States v. Tomsha-Miguel, 766 F.3d 1041, 1047 (9th
Cir. 2014) (quoting United States v. Del Toro-Barboza, 673 F.3d 1136, 1152 (9th Cir.
2012)); see also United States v. Ruiz, 710 F.3d 1077, 1086 (9th Cir. 2013) (“[T]he
prosecutor’s characterization of the defense’s case as ‘smoke and mirrors’ was not
misconduct.”). The district court did not err in overruling Palomo’s objection.
3. Because Palomo fails to identify an individual error by the trial court, his
argument for reversal based on the cumulative error doctrine also fails. See United
States v. Gutierrez, 995 F.2d 169, 173 (9th Cir. 1993).
AFFIRMED.
3