United States v. Frederico Moreno-Lopez

FILED
NOT FOR PUBLICATION JAN 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50088
Plaintiff - Appellee, D.C. No. 3:09-cr-04598-MMA-1
v.
MEMORANDUM*
FREDERICO ARMENGOR MORENO-
LOPEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Argued and Submitted January 10, 2013
Pasadena, California
Before: REINHARDT, WARDLAW, and PAEZ, Circuit Judges.
Federico Armengor Moreno-Lopez1 appeals his jury conviction for being a
previously deported alien found in the United States, in violation of 8 U.S.C. §
1326(a). We have jurisdiction pursuant to 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.
1
It appears that Moreno’s first name is misspelled in the caption.
Even assuming that the prosecutor misstated the evidence in his closing
argument, we cannot say that those misstatements infected Moreno’s trial with
unfairness in violation of his due process rights. See Darden v. Wainwright, 477
U.S. 168, 181 (1986) (“The relevant question is whether the prosecutors’
comments ‘so infected the trial with unfairness as to make the resulting conviction
a denial of due process.’”) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643
(1974)); Tak Sun Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir. 2005) (“[U]nder
Darden, the first issue is whether the prosecutor’s remarks were improper and, if
so, whether they infected the trial with unfairness.”). Agent Garcia testified that
border patrol agents located footprints near the border, a border patrol camera
surveillance team observed Moreno in an area one mile north of the border, and
Agent Garcia had to search for Moreno within that area in order to find him. In
light of this evidence, a reasonable fact finder could conclude that Moreno was not
under constant surveillance from the moment he crossed the border. Thus, the
prosecutor’s characterization of Agent Garcia’s testimony as sequential was not so
gross as to render the resulting conviction a denial of due process. See Darden,
477 U.S. at 181; Hein v. Sullivan, 601 F.3d 897, 916 (9th Cir. 2010); United States
v. Parker, 549 F.2d 1217, 1222 (9th Cir. 1977).
2
Moreover, the jury was twice instructed that the attorneys’ statements and
arguments were not evidence. Since any misstatement of the evidence was minor,
this repeated, generalized instruction was sufficient to neutralize the error. See
United States v. Necoechea, 986 F.2d 1273, 1280 (9th Cir. 1993) (“Since the
vouching during opening statement was mild, this general instruction was
sufficient to cure the error.”); see also Darden, 477 U.S. at 182.
Therefore, Moreno’s conviction is AFFIRMED.
3