United States v. Jesus Navarro-Montes , 521 F. App'x 611 ( 2013 )

FILED
NOT FOR PUBLICATION APR 11 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50262
Plaintiff - Appellee, D.C. No. 3:09-cr-00577-MMA-1
v.
MEMORANDUM *
JESUS ALBINO NAVARRO-MONTES,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted October 12, 2012
Pasadena, California
Before: WARDLAW and NGUYEN, Circuit Judges, and SIMON, District Judge.**
Jesus Navarro-Montes appeals his conviction of second degree murder and
his sentence of life in prison. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Michael H. Simon, District Judge for the U.S. District
Court for Oregon, sitting by designation.
1. The district court did not abuse its discretion by excluding evidence that
Navarro-Montes pleaded guilty to a drug charge which arose from a different
incident than the charges for which he was tried. This is true even though the
district court admitted a cooperating witness’s guilty plea to drug smuggling
charges. That a cooperating witness entered into a plea agreement is generally
relevant to the witness’s credibility. See United States v. Universal Rehab.
Systems, 205 F.3d 657, 666 (1999). However, the rationale behind this general
rule does not extend to Navarro-Montes’s defense strategy of introducing his guilty
plea to a drug charge to bolster his innocence of the murder, for which he was
tried. Therefore, the court did not err in concluding that the guilty plea was
irrelevant.
2. The district court did not plainly err by disallowing cross-examination
about the government’s failure to use “double-blind” protocols during the photo ID
lineups used to identify Navarro-Montes. Because defense counsel failed to make
an offer of proof, the “substance of the evidence was not made known to the court .
. . .” United States v. Bishop, 291 F.3d 1100, 1108 (9th Cir. 2002). Nor was the
substance of the evidence readily apparent to the district court. Id. Therefore our
review is for plain error, rather than under the less stringent abuse of discretion
standard. Id. While broad cross-examination of experts regarding eyewitness
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identification procedures is generally favored, given counsel’s failure to make an
offer of proof, the district court did not commit any error, much less error that was
plain, affected the outcome of the judicial proceedings, or “seriously affect[ed] the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
Olano, 507 U.S. 725, 732 (2009) (internal quotation marks omitted).
3. The record does not support Navarro-Montes’s contention that the district
court ruled against him by limiting the scope of his cross-examination of
Macedonio Guererro. Defense counsel himself represented to the court that he
would not go line by line through the sentencing memorandum, and the
prosecution and the court agreed to counsel’s approach. There is thus no “adverse
ruling” to review.1 See Rohauer v. Friedman, 306 F.2d 933 (9th Cir. 1963).
4. The district court did not abuse its discretion by giving a curative
instruction, rather than declaring a mistrial, the day after Agent Rothrock
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Navarro-Montes also asserted at oral argument that the district court abused
its discretion by concluding that the presentence report was cumulative. This
argument, however, was not raised in Navarro-Montes's opening brief, and the
government accordingly did not address it in its responding brief. But even
assuming the issue was properly raised before the Court, the district court did not
abuse its discretion in concluding that information contained in the presentence
report was cumulative to the prosecution's sentencing memorandum. Moreover,
because the court allowed Navarro-Montes to elicit the admission of Guererro's lies
during the safety valve debriefing, any error was harmless. See United States v.
Alvarez, 358 F.3d 1194, 1207–08 (9th Cir. 2004).
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improperly opined that there was no evidence of which he was aware that anybody
other than Navarro-Montes was the driver of the Hummer. See United States v.
Randall, 162 F.3d 557, 559-60 (9th Cir. 1998) (“Ordinarily, cautionary instructions
or other prompt and effective actions by the trial court are sufficient to cure the
effects of improper comments, because juries are presumed to follow such
cautionary instructions.”). Defense counsel objected on the grounds that Agent
Rothrock’s testimony went to the issue of guilt and was based on hearsay. The
trial court’s decision to issue a curative instruction rather than granting a mistrial in
response to these objections was not an abuse of discretion.
Counsel failed to object on the ground that Rothrock’s testimony constituted
improper vouching, as he argues on appeal; nor did he object to the obvious defect
in the curative instruction itself: that the instruction did not admonish the jury to
disregard the improper testimony. Although Agent Rothrock’s testimony was
impermissible vouching because he indicated that “information not presented to the
jury supports a witness’s testimony,” United States v. Hermanek, 289 F.3d 1076,
1098 (9th Cir. 2002), and that the curative instruction was defective, on this record,
the district court did not commit plain error.
5. Although the prosecution also improperly vouched in closing argument
we again review for plain error, because defense counsel failed to object. The
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prosecutor’s use of “we” in closing argument improperly associated him with the
investigatory team. See United States v. Hermanek, 289 F.3d at 1098–99.
However, in Hermanek, we found that similar vouching was not reversible error
under the less stringent “harmless error” standard. Id. at 1102. Considering the
overwhelming evidence that Navarro-Montes drove the Hummer that killed Agent
Aguilar, we conclude that the vouching in closing argument did not rise to the level
of plain error.
6. Because Navarro-Montes did not object at trial to the failure of the jury
instructions to explain the difference between “reckless disregard for life,”
involuntary manslaughter, and “recklessly with extreme disregard for human life,”
second degree murder, we review for plain error. United States v. Lesina, 833 F.2d
156 (9th Cir. 1987), cited by Navarro-Montes, is distinguishable because there, the
instructions for involuntary manslaughter and second degree murder both listed
“reckless disregard for human life” as sufficient, so the jury was forced to “impose
guilt randomly rather than on the basis of a meaningful distinction between the
crimes.” Id. at 158–59. In addition, there, we reviewed the error under an abuse of
discretion standard, and here, we review for plain error. Moreover, the jury
instructions here, read together, correctly state the mens rea requirements for
second degree murder (malice aforethought) and involuntary manslaughter
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(reckless indifference to human life). The use of these jury instructions was
therefore not plain error.
7. The use of the special verdict form was not plain error. We agree that the
form itself could have more clearly distinguished involuntary manslaughter and
second degree murder. However, read in combination with the jury instructions,
its use was not plainly erroneous.
8. The district court did not clearly err in determining that Navarro-Montes
knew Agent Aguilar was a law enforcement officer and chose to run him down to
evade capture. See United States v. Rivera-Alonzo, 584 F.3d 829, 836 (9th Cir.
2009). The evidence demonstrated that Navarro-Montes could see Agent Aguilar
putting down a spike strip, made no effort to brake, and had previously run over a
spike strip, only to be captured by border patrol. Thus the district court did not
abuse its discretion in imposing the official victim enhancement.
9. We find neither procedural error or substantive unreasonableness in the
district court’s calculation of the guideline range or imposition of a life sentence
after adequately considering the factors under 18 U.S.C. § 3553(a).
AFFIRMED.
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