United States v. Jose Soto

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 1, 2019
• Docket: 17-50287
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 1 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50287

Plaintiff-Appellee, D.C. No. 3:16-cr-00766-CAB-1 v.

JOSE SOTO, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Cathy Ann Bencivengo, District Judge, Presiding

Submitted April 10, 2019** Pasadena, California

Before: GRABER and BYBEE, Circuit Judges, and HARPOOL,*** District Judge.

Defendant Jose Soto appeals from his conviction for importing

methamphetamine. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable M. Douglas Harpool, United States District Judge for the Western District of Missouri, sitting by designation. 1. Soto first argues that the district court erred by allowing a Homeland

Security Investigations agent to testify outside the scope of his noticed expert

testimony, in violation of Federal Rule of Criminal Procedure 16(a)(1)(G); the

agent testified to his opinion that drug smugglers often use coded language to

communicate. We review a district court’s decision to allow expert testimony for

abuse of discretion. United States v. Basinger, 60 F.3d 1400, 1407 (9th Cir. 1995).

The district court did not abuse its discretion because, even if the testimony offered

could be considered outside the scope of the notice, the witness was manifestly

qualified to offer that opinion as an expert. Even assuming an abuse of discretion,

the verdict would not have been different had the government more precisely

followed Rule 16(a)(1)(G). See United States v. Figueroa-Lopez, 125 F.3d 1241,

1247 (9th Cir. 1997) (requiring prejudice for reversal).

2. Soto next argues that the government improperly vouched for the

evidence and violated the golden rule in its initial closing argument by (1) asking

the jury to rely on the prosecutor’s own knowledge of how an innocent person

would behave during the search of Soto’s vehicle and (2) asking the jury to step

into the shoes of Soto during the search. See United States v. Sanchez, 176 F.3d

1214, 1224 (9th Cir. 1999) (improper vouching); Fields v. Woodford, 309 F.3d

1095, 1109 (9th Cir.), amended, 315 F.3d 1062 (9th Cir. 2002) (golden rule). Soto

did not object at the time, so these statements are reviewed only for plain error.

2 17-50287 United States v. Combs, 379 F.3d 564, 568 (9th Cir. 2004). The prosecutor’s two

brief statements did not, when “viewed in the context of the entire trial, . . .

seriously affect[] the fairness, integrity, or public reputation of judicial

proceedings, or . . . result in a miscarriage of justice.” Id. (internal quotation marks

omitted).

3. Soto argues that the district court erred during rebuttal closing argument

by overruling an objection after the government twice characterized the evidence

as “overwhelming.” Soto objected on the ground that the government’s statements

were improper vouching. Although that argument is improper, reversal is not

called for if Soto suffered no prejudice. United States v. Tam, 240 F.3d 797, 802

(9th Cir. 2001). In light of the ample evidence of guilt, the governments’ two

statements did not materially affect the verdict and thus was harmless error.

4. Finally, Soto argues that the cumulative errors in his trial require reversal.

See Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007). After consideration of

each alleged instance of error proffered by Soto, we find no cumulative error

meriting reversal.

AFFIRMED.

3 17-50287