United States v. Mon Gen Yip

321 F. App'x 565

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 24, 2008
• Docket: No. 07-50304
• Status: Published

Opinion

MEMORANDUM

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Gerardo Mon Gen Yip (“Mon Gen Yip”) appeals his jury conviction (1) for the importation of approximately 16.3 kilograms of cocaine in violation of 21 U.S.C. §§ 952 and 960 and (2) for possession of the same amount with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). Mon Gen Yip contends that the district court abused its discretion by denying on harmlessness grounds Mon Gen Yip’s request for a mistrial because testimony as to his methamphetamine use, made in direct violation of the district court’s in limine order prohibiting such testimony, had assert-edly prejudiced the jury. We affirm.

Because the district court issued a proper limiting instruction, telling the jury to disregard the statement at issue immediately after it was made, it must be assumed that the jury followed the instruction and did not consider the testimony when rendering its verdict (see, e.g., Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000)). Furthermore, because Mon Gen Yip’s conviction was supported by strong evidence apart from his methamphetamine use, a single reference to such use would have been harmless even if that testimony had been admitted in error without a proper limiting instruction (United States v. Mehrmanesh, 689 F.2d 822, 832 (9th Cir.1982)). There are thus two independent grounds for holding that the district court did not abuse its discretion when it concluded that the statement made about Mon Gen Yip’s methamphetamine use was harmless in that it was more probable than not that it did not materially affect the jury’s verdict (United States v. Morales, 108 F.3d 1031, 1040 (9th Cir.1997) (en banc)).

AFFIRMED.

This disposition is not appropriate for publication and is not precedential except as provided by 9th Cir. R. 36-3.