United States v. Orgaz-Vega

258 F. App'x 961

Opinion

MEMORANDUM

Footnotes

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Noe Orgaz-Vega appeals his conviction for being a deported alien found in the United States pursuant to 8 U.S.C. § 1326.

Orgaz-Vega contends the district court erred in five ways with regard to the Prosecution’s closing arguments and testimony of the Orgazr-Vega’s parole officer. Some of the errors were objected to; others were not. The parties are familiar with the arguments and they need not be described in this memorandum.

“We review whether closing argument constitutes misconduct de novo.” United States v. Perlaza, 439 F.3d 1149, 1169, n. 22 (9th Cir.2006) (Although Perlaza cites Santiago, Santiago does not actually support the proposition). If the error is of constitutional magnitude, we must reverse unless the error was harmless beyond a reasonable doubt. Id. at 1171. If the error is not of constitutional magnitude, we must reverse unless “it is more probable than not that the error did not materially affect the verdict.” United States v. Mitchell, 172 F.3d 1104, 1111 (9th Cir.1999). We conclude that even if the asserted errors were of a constitutional magnitude, they were harmless beyond a reasonable doubt.

Additionally, the prosecutor’s misstatement of facts did not prejudice the jury and, if there was prejudice, the court’s routine jury instructions remedied any prejudice. See United States v. Lopez-Alvarez, 970 F.2d 583, 598 (9th Cir.1992).

A district court’s evidentiary rulings are reviewed for abuse of discretion. United States v. Fleming, 215 F.3d 930, 938 (9th Cir.2000). The district court did not abuse its discretion when it allowed the Defendant’s witness, a former probation officer, to testify on cross-examination that information given by family members potentially could or could not result in a lower sentence and that a probation report is prepared after a person is convicted of a crime.

Therefore, the district court’s ruling is AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.