United States v. Moran-Can

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 1, 2026
• Docket: 23-2492
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 1 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-2492 D.C. No. Plaintiff - Appellee, 4:22-cr-01661-SHR-LCK-1 v. MEMORANDUM* JORGE OLIVERIO MORAN-CAN,

Defendant - Appellant.

Appeal from the United States District Court for the District of Arizona Scott H. Rash, District Judge, Presiding

Argued and Submitted March 19, 2026 Tucson, Arizona

Before: HAWKINS, HURWITZ, and DESAI, Circuit Judges.

Jorge Oliverio Moran-Can (“Moran-Can”) appeals his conviction after a jury

found him guilty of two counts of assaulting a federal officer in violation of 18

U.S.C. § 111. The government charged Moran-Can after he encountered a Border

Patrol Agent near the U.S.-Mexico border and shoved the agent, causing him to fall

down a steep hill. On appeal, Moran-Can argues that (1) the government committed

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. a Batson violation by using a peremptory strike on a Latino prospective juror; (2) the

district court abused its discretion by excluding his biomechanics expert’s testimony;

and (3) the prosecutor committed prosecutorial misconduct by making improper

statements during closing arguments.

We review whether a district court properly applied Batson de novo and

factual findings regarding the racially discriminatory use of peremptory strikes for

clear error. United States v. Collins, 551 F.3d 914, 919–20 (9th Cir. 2009). A district

court’s decision to exclude expert testimony is reviewed for abuse of discretion.

United States v. Aubrey, 800 F.3d 1115, 1129 (9th Cir. 2015). We review a

prosecutorial misconduct claim for plain error when the defendant failed to object in

the district court. United States v. Flores, 802 F.3d 1028, 1034 (9th Cir. 2015).

We have jurisdiction under 28 U.S.C. § 1291. We affirm.

1. Moran-Can’s Batson claim fails. See Batson v. Kentucky, 476 U.S. 79

(1986). He challenges the prosecutor’s use of a peremptory strike on one Latino

prospective juror. At step three of the Batson inquiry, Moran-Can must prove that

the strike resulted from “purposeful racial discrimination.” Purkett v. Elem, 514 U.S.

765, 767 (1995). The prosecutor struck the prospective juror “because he basically

didn’t answer any questions,” he was single, and he had no kids.1 Moran-Can does

1 To the extent that Moran-Can challenges the district court’s conclusion that this justification was race-neutral, the challenge also fails. See Purkett, 514 U.S. at 767–68 (“The second step of this [analysis] does not demand an explanation that is

2 23-2492 not show that this justification was so “implausible or fantastic” that it was a pretext

for purposeful racial discrimination, especially given that a similarly-situated Latino

juror was seated on the jury. Purkett, 514 U.S. at 768; see also Gonzalez v. Brown,

585 F.3d 1202, 1210 (9th Cir. 2009).

2. The district court did not abuse its discretion by excluding the

biomechanics expert’s testimony as unreliable under Rule 702 and Daubert. See Fed.

R. Evid. 702(c); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). The

expert’s opinion was not “supported by appropriate validation” because his report

failed to include explanations of the data he relied on and the experimentation he

conducted. Daubert, 509 U.S. at 590. Additionally, the expert relied on factual

assumptions that were not supported by the record or testimony. The district court

also did not abuse its discretion by excluding the testimony under Rule 403 because

the risk of unfair prejudice or misleading the jury substantially outweighed its

minimal probative value. See Fed. R. Evid. 403.

3. The district court did not plainly err by failing to grant a new trial based

on prosecutorial misconduct. During closing arguments, the prosecutor referenced

an inconsistency in Moran-Can’s testimony that may have resulted from a translation

issue. But defense counsel did not object to the alleged translation errors during

persuasive, or even plausible. . . . Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” (citation modified)).

3 23-2492 Moran-Can’s testimony and briefly stated afterward that “there [were] potentially

translation issues,” but “[n]ot enough for [her] to have pointed them out.” The

prosecutor thus did not plainly misrepresent the facts or draw an unreasonable

inference. See United States v. Del Toro-Barboza, 673 F.3d 1136, 1153 (9th Cir.

2012); United States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997). Even if the

prosecutor’s comment was improper, it did not affect Moran-Can’s substantial

rights. The prosecutor relied on other inconsistent or implausible statements from

Moran-Can’s testimony that he does not challenge to argue that he was not credible.

See United States v. Olano, 507 U.S. 725, 734 (1993) (explaining that an error affects

substantial rights if it “affected the outcome of the . . . proceedings”).

AFFIRMED.

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