United States v. Isaac Martinez

502 F. App'x 677

Opinion

MEMORANDUM **

Appellant Isaac Reyes Martinez appeals his conviction after jury trial for conspiracy to possess with intent to distribute methamphetamine, 21 U.S.C. §§ 841(a)(1) and 846, and possession of firearms in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(l)(A)(i).

We hold that the government violated Appellant’s Fifth Amendment right to be convicted solely on the evidence adduced at trial, under United States v. Schuler, 818 F.2d 978, 981-82 (9th Cir.1987), by commenting in its closing argument on Appellant’s demeanor in the courtroom during witness Acosta-Ruiz’s testimony and identification of Appellant. Analyzing the record for harmless error pursuant to Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), we cannot conclude that this error was harmless beyond a reasonable doubt. See United States v. Weatherspoon, 410 F.3d 1142, 1151 (9th Cir.2005). Therefore we reverse Appellant’s conviction and remand the case to the district court for a new trial.

REVERSED and REMANDED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.