United States v. Jorge Cordova-Villa ( 2018 )

FILED
NOT FOR PUBLICATION
JUL 23 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50221
Plaintiff-Appellee, D.C. No.
3:16-cr-01727-WQH-1
v.
JORGE CORDOVA-VILLA, AKA Jorge MEMORANDUM*
Cardova Villa, AKA Jorge Cardova-Villa,
AKA Jorge Cordova Villasana,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
UNITED STATES OF AMERICA, No. 17-50222
Plaintiff-Appellee, D.C. No. 3:12-cr-02267-W-1
v.
JORGE CORDOVA-VILLA, AKA Jorge
Cardova Villa, AKA Jorge Cardova-Villa,
AKA Jorge Cordova Villasana,
Defendant-Appellant.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Argued and Submitted July 12, 2018
Pasadena, California
Before: BERZON, FISHER,** and WATFORD, Circuit Judges.
Jorge Cordova-Villa appeals his conviction for illegal attempted entry and
reentry, and the subsequent revocation of supervised release based on that
conviction. We affirm.
1. Cordova challenges the district court’s refusal to give a missing-
witness instruction for the individuals who were arrested with Cordova and
removed before trial. We review the district court’s decision for an abuse of
discretion. United States v. Bramble, 680 F.2d 590, 592 (9th Cir. 1982).
The district court did not require a showing of bad faith by the government
for the missing-witness instruction, which would have been the incorrect legal
standard. The failure of the district court to articulate the two-part test from United
States v. Leal-Del Carmen, 697 F.3d 964, 974–75 (9th Cir. 2012), was not itself an
abuse of discretion. See United States. v. Ramirez, 714 F.3d 1134, 1137 (9th Cir.
**
The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
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2013) (“While the judge didn’t articulate the two-part test . . . , his comments make
it clear that he identified and applied the correct rule.”). And the district court’s
ultimate conclusion was that it was entirely “speculative” whether the removed
individuals would give exculpatory evidence, so any inference that they would was
not appropriate. The district court did not rest its decision on a lack of bad faith by
the government.
2. A missing-witness instruction is warranted only if “an inference of
unfavorable testimony [against the nonmoving party] from an absent witness is a
natural and reasonable one.” Id. (alteration in original) (quoting Leal-Del Carmen,
697 F.3d at 974–75). Here, Cordova offered nothing more than conjecture to
establish that an inference of unfavorable testimony against the government would
be “natural and reasonable.” Leal-Del Carmen, 697 F.3d at 974. He brought
forward no specific basis for supposing that any of the removed witnesses could
have offered exculpatory evidence, given the limited factual disputes that divided
the parties, and Cordova’s testimony that he did not tell his fellow travelers his
purpose in crossing the border. Contrary to Cordova’s assertion, the government’s
failure to call a witness does not alone give rise to that inference. See Ramirez, 714
F.3d at 1137 (“[A] party may choose not to present an available favorable witness
for a variety of reasons.”). On the limited showing Cordova provided, the district
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court did not abuse its discretion by rejecting Cordova’s requested missing-witness
instruction.
3. The government did not make a statement during closing argument
negating the specific intent element of both charged offenses. The district court’s
refusal to issue a curative instruction and denial of Cordova’s motion for a mistrial
are reviewed for an abuse of discretion. United States v. Reyes, 660 F.3d 454, 461
(9th Cir. 2011). “[I]n analyzing the effect of a [prosecutor’s] comment upon the
jury we accord due respect to the common sense of jurors.” United States v. Koon,
34 F.3d 1416, 1443 (9th Cir. 1994), aff’d in part, rev’d in part on other grounds,
518 U.S. 81 (1996). Thus, “[a] court should not lightly infer that a prosecutor
intends an ambiguous remark to have its most damaging meaning or that a jury,
sitting through a lengthy exhortation, will draw that meaning from the plethora of
less damaging interpretations.” Id. (quoting Donnelly v. DeChristoforo, 416 U.S.
637, 647 (1974)). Given that the central focus of the trial was whether Cordova had
the requisite specific intent, it is implausible that the jury would have interpreted
the government’s statement to negate that specific intent element. The district court
therefore did not abuse its discretion in declining to issue a curative instruction and
denying Cordova’s motion for a mistrial.
AFFIRMED.
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