United States v. Miguel Rivas-Barrera

FILED
NOT FOR PUBLICATION JUN 06 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50119
Plaintiff - Appellee, D.C. No. 3:12-cr-01918-BTM-1
v.
MEMORANDUM*
MIGUEL ANGEL RIVAS-BARRERA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Submitted June 4, 2014**
Pasadena, California
Before: KOZINSKI, Chief Judge, and TROTT and CALLAHAN, Circuit Judges.
Miguel Rivas-Barrera appeals his conviction for importation of marijuana.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Because the
*
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).
parties are aware of the facts and circumstances of this case, we repeat them only
as necessary to illuminate our decision.
I
Rivas-Barrera’s claim of prosecutorial misconduct in the presentation of the
prosecutor’s argument to the jury is without merit under any standard of
review—much less for plain error. The prosecutor’s arguments about which
Rivas-Barrera complains are simply fair comments involving legitimate inferences
from the evidence. See United States v. Henderson, 241 F.3d 638, 652 (9th Cir.
2000) (“Prosecutors have considerable leeway to strike ‘hard blows’ based on the
evidence and all reasonable inferences from the evidence.”).
II
The district court did not abuse its discretion in refusing to instruct the jury
that the defendant “contends that a third party was responsible for loading [his] car
with marijuana.” This formulation was more argument than instruction, especially
where the defendant had chosen not to take the stand. United States v. Parker, 991
F.2d 1493, 1497 (9th Cir. 1993) (rejecting a claim of error on a proposed
instruction “was more like a closing argument than a statement of applicable law”).
Moreover, the instructions given to the jury were accurate and adequate.
AFFIRMED.
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