United States v. Miguel Hurtado ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 21 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50174
Plaintiff-Appellee, D.C. No. 2:18-cr-00073-AB-1
v.
MEMORANDUM*
MIGUEL HURTADO, AKA Miguel
Nicodeml Hurtado, AKA Miguel Nicomedes
Hurtado, AKA Miguel Nicomedl Hurtado,
AKA Miguel Nicomedle Hurtado, AKA
Nicomedes Hurtado, AKA Nicomedes
Miguel Hurtado, AKA Nicomedles Hurtado,
AKA Lil Bullet, AKA Loco Park, AKA
Nick, AKA Hortado Nicomede, AKA
Hortado Nicomedes, AKA Sneaky, AKA
Woody, AKA Youngster,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Andre Birotte, Jr., District Judge, Presiding
Argued and Submitted December 8, 2020
Pasadena, California
Before: KELLY,** GOULD, and R. NELSON, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
Defendant-Appellant Miguel Hurtado appeals from his conviction for
possessing a firearm or ammunition as a felon in violation of 18 U.S.C § 922(g)(1).
We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and affirm Mr.
Hurtado’s conviction.
STANDARD OF REVIEW
We review a district court’s handling of jury incidents for abuse of
discretion. United States v. Simtob, 485 F.3d 1058, 1061 (9th Cir. 2007). Where a
party fails to raise a contemporaneous objection at trial, the claim is reviewed for
plain error. Puckett v. United States, 556 U.S. 129, 135 (2009). To establish plain
error, a defendant must show that (1) there was an error; (2) the error was plain; (3)
the error affected the defendant’s substantial rights; and (4) the error “seriously
affects the fairness, integrity or public reputation of judicial proceedings.” Molina-
Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (internal quotations
omitted).
DISCUSSION
The parties are familiar with the facts, so we need not restate them in detail
here. Mr. Hurtado argues that he is entitled to a new trial on three grounds: (1) the
district court’s failure to hold an evidentiary hearing to determine possible jury
prejudice; (2) the government’s mischaracterization of evidence during closing
arguments; and (3) the failure to instruct the jury that Mr. Hurtado must be aware
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of his status as a felon to be convicted under § 922(g).
A. Jury Prejudice
During a bus ride to court one day, a juror struck up a conversation with a
fellow passenger, a county prosecutor, about what kind of case the juror was
serving on and who was the presiding district judge. At the courthouse, the juror
told the other jurors that the county prosecutor said the district judge was “very
notable” and asked what kind of case it was. At that point, the other jurors told the
juror in question to stop talking.
Mr. Hurtado argues that the district court was required to hold an evidentiary
hearing once it was informed of this incident. We have established a two-step
process for evaluating allegedly prejudicial jury contacts. First, “[t]he defendant
must present evidence of a contact sufficiently improper as to raise a credible risk
of affecting the outcome of the case.” Godoy v. Spearman, 861 F.3d 956, 967 (9th
Cir. 2017). If the defendant makes that showing, “the presumption of prejudice
attaches, and the burden shifts to the state to prove that the contact was harmless.”
Id. at 968. The district court must also hold an evidentiary hearing to evaluate
prejudice only “if there is any remaining uncertainty about ‘what actually
transpired, or whether the incident[]’” was prejudicial. Id. at 969 (quoting Remmer
v. United States, 347 U.S. 227, 229 (1954)). An evidentiary hearing is not required
upon every allegation of jury misconduct or bias. United States v. Saya, 247 F.3d
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929, 934–35 (9th Cir. 2001). Because Mr. Hurtado failed to object to the district
court’s handling of the jury incident below, we review his claim for plain error.
See Puckett, 556 U.S. at 135.
The district court appropriately handled the report of the potentially
improper jury contact. Upon receiving the report, the district court questioned the
juror about the conversation in front of the government and defendant’s counsel.
The juror’s account matched that of the juror who reported the incident. The
district court replaced the juror with an alternate “in [an] abundance of caution,”
but found that the juror did not pass on inappropriate information about the facts or
merits of the case. Mr. Hurtado did not object to any of this and agreed with the
government that instructing the jury not to speculate as to the reason for the juror’s
excusal was an adequate response. Under these circumstances, the district court
was not required to hold an evidentiary hearing and did not err in failing to do so.
There is no error, plain or otherwise.
B. Prosecutorial Misconduct
Mr. Hurtado argues that the district court was required to grant a mistrial
based on the prosecutor’s mischaracterization of an officer’s testimony during
closing arguments. Mr. Hurtado did not object to the misstatement at trial, so his
claim is reviewed for plain error. See Puckett, 556 U.S. at 135.
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“A prosecutor’s inadvertent mistakes or misstatements are not misconduct”
and “are not a basis for reversal.” United States v. Lloyd, 807 F.3d 1128, 1168 (9th
Cir. 2015). Here, the mistake appears inadvertent, as the prosecutor briefly
conflated different aspects of the officer’s testimony but characterized it correctly
shortly thereafter. Moreover, the district court instructed the jury that what
lawyers say in their closing arguments is not evidence. See id. at 1168 (noting
importance of district court’s instructions “that the jury’s recollections—not the
prosecutor’s summation—controlled”). Accordingly, the district court was not
required to grant a mistrial.
C. Rehaif Instruction
Finally, Mr. Hurtado argues that he is entitled to a new trial because the jury
was not instructed that the government must prove that Mr. Hurtado knew of his
status as a felon in order to support a conviction under 18 U.S.C. § 922(g). Mr.
Hurtado did not raise this issue below, so it is reviewed for plain error. The
government concedes that this omission was a clear and obvious error under Rehaif
v. United States, 139 S. Ct. 2191 (2019), but argues that the error did not violate
Mr. Hurtado’s substantial rights and did not seriously affect the fairness or
integrity of the judicial proceedings.
The failure to provide a Rehaif instruction will not constitute reversible plain
error where the record on appeal demonstrates that a “hypothetical retrial is certain
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to end in the same way as the first one.” United States v. Johnson, 979 F.3d 632,
637 (9th Cir. 2020). Mr. Hurtado testified on cross-examination that he was
sentenced to four years in prison for a prior offense and his PSR indicates that he
has been convicted of possessing a firearm as a felon three times and served more
than four years for one of those convictions. Given this uncontroverted evidence,
Mr. Hurtado cannot plausibly argue that a trier of fact might find that he was
unaware of his status as a felon; thus, he cannot establish reversible plain error.
See id. at 638–39.
AFFIRMED.
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