United States v. Landon Rudolfo

FILED
NOT FOR PUBLICATION
NOV 22 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ) No. 16-10327
)
Plaintiff-Appellee, ) D.C. No. 1:15-cr-00813-DKW-1
)
v. ) MEMORANDUM*
)
LANDON K. RUDOLFO, )
)
Defendant-Appellant. )
)
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Argued and Submitted November 7, 2017
Portland, Oregon
Before: FERNANDEZ, W. FLETCHER, and MELLOY,** Circuit Judges.
Landon K. Rudolfo appeals his conviction for trafficking in certain motor
vehicles (those with vehicle identification numbers (VINs) which had been
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Michael J. Melloy, United States Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.
unlawfully “removed, obliterated, tampered with, or altered”).1 18 U.S.C. §
2321(a). We affirm.
(1) Rudolfo argues that there was reversible Doyle2 error when the
government elicited testimony that Rudolfo had obtained an attorney and had not
cooperated with the government. Plainly, that evidence should not have been
elicited,3 but because the district court promptly gave a curative instruction4 and
the government did not repeat or allude to those facts at any time thereafter,5 there
was no Doyle violation.6
1
Hereafter when we use “altered” we mean “removed, obliterated, tampered
with, or altered.”
2
Doyle v. Ohio, 426 U.S. 610, 617–18, 96 S. Ct. 2240, 2244–45, 49 L. Ed.
2d 91 (1976); see also Anderson v. Charles, 447 U.S. 404, 407–08, 100 S. Ct.
2180, 2181–82, 65 L. Ed. 2d 222 (1980) (per curiam); United States v. Kallin, 50
F.3d 689, 693–94 (9th Cir. 1995).
3
We reject the government’s suggestion that the questions were invited by
the defense. Here, the defense asked nothing to suggest that Rudolfo had
cooperated with the government. See Lincoln v. Sunn, 807 F.2d 805, 810 (9th Cir.
1987); cf. Leavitt v. Arave, 383 F.3d 809, 827 (9th Cir. 2004) (per curiam);
McMillan v. Gomez, 19 F.3d 465, 469–70 (9th Cir. 1994).
4
See Greer v. Miller, 483 U.S. 756, 763–65, 107 S. Ct. 3102, 3108, 97 L. Ed.
2d 618 (1987).
5
See id.6
See id.; see also United States v. Lopez, 500 F.3d 840, 846–47 (9th Cir.
2007); United States v. Kennedy, 714 F.2d 968, 976 (9th Cir. 1983).
2
(2) Rudolfo then contends that reversal is required because a government
witness (FBI agent Sakanoi) vouched for the reliability of another government
witness (co-conspirator Javillo). The government concedes that there was
improper vouching, as indeed there was. See United States v. Hermanek, 289 F.3d
1076, 1098 (9th Cir. 2002). However, on this record that vouching was harmless
error. See United States v. Stinson, 647 F.3d 1196, 1212–13 (9th Cir. 2011);
Hermanek, 289 F.3d at 1098, 1102. The error was an isolated incident,7 and the
other evidence in the record8 made this a strong case against Rudolfo. The record
included evidence of: Rudolfo’s knowledge that Roddy Tsunezumi, whom Rudolfo
contacted, could supply a vehicle with VINs that were altered; Rudolfo’s
knowledge of changes in Toyota styles from year-to-year; his purchase of a vehicle
with VINs that had been altered in ways that a knowledgeable person would
recognize; the fact that Rudolfo had been trained to observe alterations; and
recorded conversations with Tsunezumi.
(3) Rudolfo then goes on to argue that reversal is required because Javillo
7
See Stinson, 647 F.3d at 1212.
8
See id. at 1212–13.
3
was permitted to give his lay opinion9 that Rudolfo knew that the 4Runner was
stolen and had VINs that were altered. However, Javillo’s testimony was based, at
least in part, upon his personal knowledge of Rudolfo10 and was not entirely
speculative.11 Of course, speaking to what someone “knew” inevitably has a
speculative aspect to it, and the district court recognized that it was a close issue.
In any event, assuming that the district court was acting outside of the boundaries
of its discretion12 when it admitted Javillo’s lay testimony, the other evidence of
Rudolfo’s knowledge was very strong. Thus, any error in that respect was
harmless. See Gadson, 763 F.3d at 1208.
(4) Even taken together, the errors in this case do not warrant reversal.
See United States v. Cazares, 788 F.3d 956, 990–91 (9th Cir. 2015); United States
v. Necoechea, 986 F.2d 1273, 1282–83 (9th Cir. 1993).
AFFIRMED.
9
See Fed. R. Evid. 701.
10
See United States v. Lopez, 762 F.3d 852, 864 (9th Cir. 2014).
11
See United States v. Beck, 418 F.3d 1008, 1014–15 (9th Cir. 2005); United
States v. Skeet, 665 F.2d 983, 985 (9th Cir. 1982).
12
See United States v. Gadson, 763 F.3d 1189, 1209 (9th Cir. 2014); United
States v. Barrett, 703 F.2d 1076, 1086 (9th Cir. 1983); see also United States v.
Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc).
4