United States v. Miguel Ley , 407 F. App'x 132 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 22 2010
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. 10-50053
Plaintiff-Appellee, D.C. No. 3:08-cr-04309-W-1
v.
MEMORANDUM *
MIGUEL LEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, Senior District Judge, Presiding
Submitted December 8, 2010 **
Pasadena, California
Before: TROTT and WARDLAW, Circuit Judges, and MOSMAN, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Michael W. Mosman, United States District Judge for
the District of Oregon, sitting by designation.
On October 16, 2008, Miguel Ley was arrested by Border Patrol officers
who discovered approximately 171 pounds of marijuana hidden in a diesel tank in
the bed of Mr. Ley’s pickup truck. Mr. Ley was the driver, sole occupant, and
owner of the truck.
On April 16, 2009, Mr. Ley was convicted of two counts: (1) importing in
excess of 50 kilograms of marijuana in violation of 21 U.S.C. §§ 952 and 960; and
(2) possessing with intent to distribute in excess of 50 kilograms of marijuana in
violation of 21 U.S.C. § 841(a)(1). ER 171. He was sentenced to 30 months in
custody and three years of supervised release. ER 172–173.
Mr. Ley appeals his conviction on two grounds. First, he argues that the
prosecutor made improper remarks during closing argument and rebuttal that
unfairly prejudiced him, and that the district court’s handling of those remarks
constituted reversible error. Second, he argues that the district court erred in its
instructions to the grand jury that they should indict in every case where there is
probable cause.
2
As to the first ground, we conclude that the complained-of statements by the
prosecutor were not improper, with one exception.1 Moreover, even if allowing the
statements was error, doing so was harmless error and certainly not plain error.2
The case against Mr. Ley was strong, and his defense theory was implausible; it is
unlikely that a reasonable juror’s decision would have been different absent the
prosecutor’s remarks.
Mr. Ley’s second ground for appeal—that the grand jury instructions were
improper—is squarely foreclosed by Ninth Circuit en banc precedent. See United
States v. Navarro-Vargas, 408 F.3d 1184, 1204–06 (9th Cir. 2005) (en banc).
AFFIRMED.
1
The statement in closing argument by the prosecutor that removing the
“700 pounds of propane” would require a “forklift” was improper. However,
defense counsel’s objection was sustained and an appropriate instruction was
given.
2
At trial, defense counsel did not object to most of the statements, so those
statements are subjected to plain error analysis; the one statement to which defense
counsel objected is reviewed under the more stringent harmless error standard.
United States v. Nobari, 574 F.3d 1065, 1073, 1080 (9th Cir. 2009). This
distinction is unimportant here, however, because we conclude that any error was
harmless.
3