FILED NOT FOR PUBLICATION OCT 23 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30129
Plaintiff-Appellee, D.C. No. 2:16-cr-00113-JLR-1 v.
SANTOS PETER MURILLO, AKA Peter MEMORANDUM* Santos Murillo,
Defendant-Appellant.
Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding
Argued and Submitted October 10, 2018 Seattle, Washington
Before: FERNANDEZ, N.R. SMITH, and CHRISTEN, Circuit Judges.
Santos Peter Murillo appeals his convictions for prohibited possession of a
firearm, possession of methamphetamine and heroin with intent to distribute, and
possession of a firearm in furtherance of drug trafficking. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. Murillo contends that the district court violated his Sixth Amendment
right to a public trial when it heard his Batson challenge out of public view in a
small room adjoining the courtroom.1 Murillo did not raise this objection in the
district court, so we review for plain error. United States v. Rivera, 682 F.3d 1223,
1232 (9th Cir. 2012). Assuming without deciding that the public trial right
attaches to a Batson hearing, see Presely v. Georgia, 558 U.S. 209, 213 (2010) (per
curiam) (holding that the Sixth Amendment applies to jury selection), we conclude
that the closure that occurred here concerned a brief, non-public hearing related to
juror selection. Such closures are “trivial” for purposes of the Sixth Amendment,
and do not implicate the public trial right. See United States v. Ivestor, 316 F.3d
955, 959–60 (9th Cir. 2003). This is especially so when, as here, the hearing is
short, conducted in the presence of all parties, and a contemporaneous record is
made of the proceedings. See United States v. Sherlock, 962 F.2d 1349, 1358 (9th
Cir. 1989). We do not discern any error in the district court’s handling of
Murillo’s Batson challenge on this record.
2. Murillo challenges the district court’s decision to allow expert opinion
testimony from a law enforcement witness specializing in narcotics trafficking
1 Because the parties are familiar with the facts, we recite only those necessary to resolve Murillo’s appeal. 2 investigations. We review challenges to properly preserved evidentiary rulings for
an abuse of discretion. United States v. Waters, 627 F.3d 345, 351–52 (9th Cir.
2010). “Federal courts uniformly hold . . . that government agents or similar
persons may testify as to the general practices of criminals to establish the
defendants’ modus operandi.” United States v. Johnson, 735 F.2d 1200, 1202 (9th
Cir. 1984) (collecting cases). The district court did not abuse its discretion in
admitting the challenged testimony.
3. Murillo suggests that several relatively recent Supreme Court cases are
incompatible with existing Ninth Circuit precedent upholding mandatory minimum
sentences under the Armed Career Criminal Act against Eighth Amendment
challenges. However, each of the Supreme Court cases he presents are categorical
rulings invalidating a specific type of sentence applied to the entire class of
juvenile defendants. See, e.g., Miller v. Alabama, 567 U.S. 460 (2012) (holding
that mandatory life sentences for juvenile offenders categorically violate the Eighth
Amendment). Indeed, the Supreme Court has gone out of its way to distinguish as
applied challenges to statutory mandatory minimum sentences within the line of
cases Murillo suggests overrule our circuit law. See Graham v. Florida, 560 U.S.
48, 61–62 (2010) (distinguishing Harmelin v. Michigan, 501 U.S. 957 (1991) and
Ewing v. California, 528 U.S. 11 (2003)). We are not persuaded, therefore, that
3 intervening Supreme Court authority requires us to revisit our established law in
this area. See United States v. Harris, 154 F.3d 1082, 1084 (9th Cir. 1998)
(rejecting as-applied challenge to a 95-year § 924(c) sentence); see also United
States v. Major, 676 F.3d 803, 812 (9th Cir. 2012) (declining to revisit Harris).
4. The district court admitted nineteen identity cards seized from the vehicle
Murillo was driving prior to his arrest. Murillo argues that this evidence was
improperly admitted. We disagree. “Evidence of assumption of a false name
following the commission of a crime is relevant as an admission ‘by conduct,
constituting circumstantial evidence of consciousness of guilt and hence of the fact
of guilt itself.’” United States v. Guerrero, 756 F.2d 1342, 1347 (9th Cir. 1984)
(quoting McCormick on Evidence § 271 (2d ed. 1972)). The district court did not
abuse its discretion by admitting the identification cards.
5. Prior to trial, Murillo moved to suppress all evidence obtained as a result
of a warrantless search of the borrowed vehicle he was driving. An officer who “is
not searching for evidence against the accused, but nonetheless inadvertently
comes across an incriminating object” may seize it, so long as the object’s
incriminating nature is “immediately apparent.” Coolidge v. New Hampshire, 403
U.S. 443, 465–66 (1971). In this case, the officer was securing the vehicle so that
it could be towed to an impound lot, when he observed the back half of a firearm
4 he immediately recognized as a MAC-10. The officer, who had military training in
firearms recognition, also knew that Murillo was wanted on a felony probation
violation warrant. There was thus “[a] practical, nontechnical probability that
incriminating evidence [was] involved[,]” United States v. Stafford, 416 F.3d 1068,
1076 (9th Cir. 2005) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)), and
because the officer was not performing an otherwise unlawful search, the firearm
was properly seized under the plain view doctrine. The district court did not err by
denying Murillo’s motion to suppress.
6. Murillo asserts that the government failed to produce sufficient evidence
of his intent to distribute the drugs found in his possession. “A jury may infer the
intent to distribute a controlled substance from quantity alone. . . . Moreover, ‘[i]t
may reasonably be inferred that an armed possessor of drugs has something more
in mind than mere personal use.’” United States v.
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FILED NOT FOR PUBLICATION OCT 23 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-30129
Plaintiff-Appellee, D.C. No. 2:16-cr-00113-JLR-1 v.
SANTOS PETER MURILLO, AKA Peter MEMORANDUM* Santos Murillo,
Defendant-Appellant.
Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding
Argued and Submitted October 10, 2018 Seattle, Washington
Before: FERNANDEZ, N.R. SMITH, and CHRISTEN, Circuit Judges.
Santos Peter Murillo appeals his convictions for prohibited possession of a
firearm, possession of methamphetamine and heroin with intent to distribute, and
possession of a firearm in furtherance of drug trafficking. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. Murillo contends that the district court violated his Sixth Amendment
right to a public trial when it heard his Batson challenge out of public view in a
small room adjoining the courtroom.1 Murillo did not raise this objection in the
district court, so we review for plain error. United States v. Rivera, 682 F.3d 1223,
1232 (9th Cir. 2012). Assuming without deciding that the public trial right
attaches to a Batson hearing, see Presely v. Georgia, 558 U.S. 209, 213 (2010) (per
curiam) (holding that the Sixth Amendment applies to jury selection), we conclude
that the closure that occurred here concerned a brief, non-public hearing related to
juror selection. Such closures are “trivial” for purposes of the Sixth Amendment,
and do not implicate the public trial right. See United States v. Ivestor, 316 F.3d
955, 959–60 (9th Cir. 2003). This is especially so when, as here, the hearing is
short, conducted in the presence of all parties, and a contemporaneous record is
made of the proceedings. See United States v. Sherlock, 962 F.2d 1349, 1358 (9th
Cir. 1989). We do not discern any error in the district court’s handling of
Murillo’s Batson challenge on this record.
2. Murillo challenges the district court’s decision to allow expert opinion
testimony from a law enforcement witness specializing in narcotics trafficking
1 Because the parties are familiar with the facts, we recite only those necessary to resolve Murillo’s appeal. 2 investigations. We review challenges to properly preserved evidentiary rulings for
an abuse of discretion. United States v. Waters, 627 F.3d 345, 351–52 (9th Cir.
2010). “Federal courts uniformly hold . . . that government agents or similar
persons may testify as to the general practices of criminals to establish the
defendants’ modus operandi.” United States v. Johnson, 735 F.2d 1200, 1202 (9th
Cir. 1984) (collecting cases). The district court did not abuse its discretion in
admitting the challenged testimony.
3. Murillo suggests that several relatively recent Supreme Court cases are
incompatible with existing Ninth Circuit precedent upholding mandatory minimum
sentences under the Armed Career Criminal Act against Eighth Amendment
challenges. However, each of the Supreme Court cases he presents are categorical
rulings invalidating a specific type of sentence applied to the entire class of
juvenile defendants. See, e.g., Miller v. Alabama, 567 U.S. 460 (2012) (holding
that mandatory life sentences for juvenile offenders categorically violate the Eighth
Amendment). Indeed, the Supreme Court has gone out of its way to distinguish as
applied challenges to statutory mandatory minimum sentences within the line of
cases Murillo suggests overrule our circuit law. See Graham v. Florida, 560 U.S.
48, 61–62 (2010) (distinguishing Harmelin v. Michigan, 501 U.S. 957 (1991) and
Ewing v. California, 528 U.S. 11 (2003)). We are not persuaded, therefore, that
3 intervening Supreme Court authority requires us to revisit our established law in
this area. See United States v. Harris, 154 F.3d 1082, 1084 (9th Cir. 1998)
(rejecting as-applied challenge to a 95-year § 924(c) sentence); see also United
States v. Major, 676 F.3d 803, 812 (9th Cir. 2012) (declining to revisit Harris).
4. The district court admitted nineteen identity cards seized from the vehicle
Murillo was driving prior to his arrest. Murillo argues that this evidence was
improperly admitted. We disagree. “Evidence of assumption of a false name
following the commission of a crime is relevant as an admission ‘by conduct,
constituting circumstantial evidence of consciousness of guilt and hence of the fact
of guilt itself.’” United States v. Guerrero, 756 F.2d 1342, 1347 (9th Cir. 1984)
(quoting McCormick on Evidence § 271 (2d ed. 1972)). The district court did not
abuse its discretion by admitting the identification cards.
5. Prior to trial, Murillo moved to suppress all evidence obtained as a result
of a warrantless search of the borrowed vehicle he was driving. An officer who “is
not searching for evidence against the accused, but nonetheless inadvertently
comes across an incriminating object” may seize it, so long as the object’s
incriminating nature is “immediately apparent.” Coolidge v. New Hampshire, 403
U.S. 443, 465–66 (1971). In this case, the officer was securing the vehicle so that
it could be towed to an impound lot, when he observed the back half of a firearm
4 he immediately recognized as a MAC-10. The officer, who had military training in
firearms recognition, also knew that Murillo was wanted on a felony probation
violation warrant. There was thus “[a] practical, nontechnical probability that
incriminating evidence [was] involved[,]” United States v. Stafford, 416 F.3d 1068,
1076 (9th Cir. 2005) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)), and
because the officer was not performing an otherwise unlawful search, the firearm
was properly seized under the plain view doctrine. The district court did not err by
denying Murillo’s motion to suppress.
6. Murillo asserts that the government failed to produce sufficient evidence
of his intent to distribute the drugs found in his possession. “A jury may infer the
intent to distribute a controlled substance from quantity alone. . . . Moreover, ‘[i]t
may reasonably be inferred that an armed possessor of drugs has something more
in mind than mere personal use.’” United States v. Innie, 7 F.3d 840, 844 (9th Cir.
1993) (alteration in original) (quoting United States v. Tarazon, 989 F.2d 1045,
1053 (9th Cir. 1993)). The government proffered competent evidence that the
quantity of drugs seized from the vehicle Murillo was driving was consistent with
distribution, that the drugs had significant street value, and that Murillo was armed.
This evidence was sufficient to permit a rational jury to conclude he intended to
distribute. Similarly, “the proximity, accessibility, and strategic location of the
5 firearms in relation to the locus of the drug activities” was sufficient for a rational
jury to conclude the firearms were used in furtherance of drug trafficking. United
States v. Thongsy, 577 F.3d 1036, 1041–42 (9th Cir. 2009) (quoting United States
v. Hector, 474 F.3d 1150, 1157 (9th Cir. 2007)).
7. Finally, Murillo argues that his jury-trial waiver as to Count 1 of the
indictment, prohibited possession of a firearm by a convicted felon, was defective.
We review this claim de novo. United States v. Laney, 881 F.3d 1100, 1106 (9th
Cir. 2018). Our circuit precedent establishes that a stipulation of facts “fulfils the
letter of [Rule 23] by providing written evidence of [the defendant’s] intent [to
waive his right to a jury trial].” Pool v. United States, 344 F.2d 943, 944 (9th Cir.
1965). Faithful application of this rule compels the conclusion that Murillo’s
stipulation to all facts necessary for conviction on Count 1 was a sufficient waiver
of his right to a trial by jury.
AFFIRMED.