United States v. Rodolfo Morales-Cortez

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 8, 2023
• Docket: 22-50131
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 8 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-50131

Plaintiff-Appellee, D.C. No. 3:21-cr-01799-BAS-1 v.

RODOLFO MORALES-CORTEZ, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Cynthia A. Bashant, District Judge, Presiding

Submitted December 6, 2023** Pasadena, California

Before: CALLAHAN, R. NELSON, and BADE, Circuit Judges.

Rodolfo Morales-Cortez (Morales) appeals from his jury conviction and

sentence for one count of improper entry by an alien in violation of 8 U.S.C.

§ 1325(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

1. Morales argues that the district court erred in denying his motion for

* 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). judgment of acquittal because the government did not provide sufficient evidence

to show that Morales entered the United States at a place other than an immigration

facility at a designated port of entry. See 8 U.S.C. § 1325(a)(1). This argument

fails because the government presented sufficient evidence to establish this

element of the offense.

The government presented evidence that, when “viewed in the light most

favorable to the government,” United States v. Jackson, 24 F.4th 1308, 1312 (9th

Cir. 2022), showed Morales was apprehended near a canyon known for frequent

illegal crossings, that individuals often proceeded north towards the apprehension

site after crossing that canyon, and that footprints were found south and north of

the major highway leading away from the closest designated port of entry. The

jury could find from this evidence, based on “reasonable inferences” and not “mere

speculation,” that Morales did not cross the border at a port of entry. See United

States v. Nevils, 598 F.3d 1158, 1167 (9th Cir. 2010) (en banc) (“[E]vidence is

insufficient to support a verdict where mere speculation, rather than reasonable

inference, supports the government’s case.”). Thus, the evidence was sufficient to

support the jury’s verdict.

2. Morales next argues that the prosecutor violated due process by

misstating the evidence during his closing argument. Whether reviewed de novo

or for an abuse of discretion, this argument fails because Morales was not

2 prejudiced by the prosecutor’s misstatements. See United States v. Velazquez, 1

F.4th 1132, 1137 (9th Cir. 2021) (noting “potential intra-circuit conflict on the

standard of review for challenges to prosecutorial comments”).

The prosecutor made misstatements during closing arguments that

improperly implied that evidence had been introduced that Morales and others in

his group had been tracked at the La Gloria canyon by border agents. The district

court, however, had only admitted evidence of statements from non-testifying

agents for its influence on the agent who apprehended Morales. But even

assuming the prosecutor’s statements were improper, they do not amount to a due

process violation because there is not a “reasonable probability” of a different

result had the misstatements not occurred. Hein v. Sullivan, 601 F.3d 897, 914–15

(9th Cir. 2010) (citation omitted).

The government’s case was strong, and the district court gave multiple

limiting instructions, which both reduced the likelihood that the misstatements

tainted the verdict. See United States v. Lopez, 4 F.4th 706, 718 (9th Cir. 2021)

(citations omitted); see also United States v. Weatherspoon, 410 F.3d 1142, 1151

(9th Cir. 2005). For the same reasons, any nonconstitutional error from admitting

the misstatements was harmless. See United States v. Perlaza, 439 F.3d 1149,

1171 (9th Cir. 2006) (citation omitted) (stating that this court must reverse unless

“it is more probable than not that the [nonconstitutional] error did not materially

3 affect the verdict”).

Other statements that Morales identifies were not misstatements of evidence.

For example, Morales argues that the prosecutor misstated the evidence by

misdescribing the defense’s theory. But the defense’s theory of the case is not

evidence. See United States v. Jaimez, 45 F.4th 1118, 1127 (9th Cir. 2022)

(citation omitted).

3. Morales next argues that the district court erred in admitting evidence

about non-testifying agents’ statements for the non-hearsay purpose of their

influence on the arresting agent. Morales contends that admitting these statements

violated the Sixth Amendment’s Confrontation Clause. Because Morales did not

raise a Confrontation Clause objection at trial, we review for plain error. United

States v. Johnson, 875 F.3d 1265, 1278 (9th Cir. 2017) (citation omitted). When

reviewing for plain error, the party who failed to preserve a claimed error must

demonstrate “a reasonable probability that, but for the error, the outcome of the

proceeding would have been different.” Greer v. United States, 141 S. Ct. 2090,

2096 (2021) (citation omitted).

Even if the admission of evidence about the non-testifying agents’

statements violated the Confrontation Clause, which we do not decide, Morales’s

claim fails because he has not shown a reasonable probability that, but for the

admission of those statements, the outcome of the proceeding would have been

4 different. The only testimony the arresting agent gave regarding the other agents’

statements was that he went to La Gloria because he “overheard some agents

working [a] group in the La Gloria area.” This evidence was not “damning nor of

great force, as in cases in which the testimonial statements pertain to the defendant

directly.” United States v. Gomez, 725 F.3d 1121, 1131 (9th Cir. 2013) (citations

omitted). And the other evidence presented at trial was quite strong. See United

States v. Macias, 789 F.3d 1011, 1019 (9th Cir. 2015) (holding that a defendant’s

substantial rights were not affected when there was “overwhelming evidence”).

Therefore, any violation of the Confrontation Clause did not affect Morales’s

substantial rights.

Morales’s argument that evidence of the non-testifying agents’ statements

was irrelevant under Rule 401 of the Federal Rules of Evidence fails for the same

reason. See United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990)

(explaining that plain error review applies when a party fails to object below).

AFFIRMED.