United States v. Jose Soto ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 1 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50287
Plaintiff-Appellee, D.C. No.
3:16-cr-00766-CAB-1
v.
JOSE SOTO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Submitted April 10, 2019**
Pasadena, California
Before: GRABER and BYBEE, Circuit Judges, and HARPOOL,*** District Judge.
Defendant Jose Soto appeals from his conviction for importing
methamphetamine. We affirm.
*
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).
***
The Honorable M. Douglas Harpool, United States District Judge for
the Western District of Missouri, sitting by designation.
1. Soto first argues that the district court erred by allowing a Homeland
Security Investigations agent to testify outside the scope of his noticed expert
testimony, in violation of Federal Rule of Criminal Procedure 16(a)(1)(G); the
agent testified to his opinion that drug smugglers often use coded language to
communicate. We review a district court’s decision to allow expert testimony for
abuse of discretion. United States v. Basinger, 60 F.3d 1400, 1407 (9th Cir. 1995).
The district court did not abuse its discretion because, even if the testimony offered
could be considered outside the scope of the notice, the witness was manifestly
qualified to offer that opinion as an expert. Even assuming an abuse of discretion,
the verdict would not have been different had the government more precisely
followed Rule 16(a)(1)(G). See United States v. Figueroa-Lopez, 125 F.3d 1241,
1247 (9th Cir. 1997) (requiring prejudice for reversal).
2. Soto next argues that the government improperly vouched for the
evidence and violated the golden rule in its initial closing argument by (1) asking
the jury to rely on the prosecutor’s own knowledge of how an innocent person
would behave during the search of Soto’s vehicle and (2) asking the jury to step
into the shoes of Soto during the search. See United States v. Sanchez, 176 F.3d
1214, 1224 (9th Cir. 1999) (improper vouching); Fields v. Woodford, 309 F.3d
1095, 1109 (9th Cir.), amended, 315 F.3d 1062 (9th Cir. 2002) (golden rule). Soto
did not object at the time, so these statements are reviewed only for plain error.
2 17-50287
United States v. Combs, 379 F.3d 564, 568 (9th Cir. 2004). The prosecutor’s two
brief statements did not, when “viewed in the context of the entire trial, . . .
seriously affect[] the fairness, integrity, or public reputation of judicial
proceedings, or . . . result in a miscarriage of justice.” Id. (internal quotation marks
omitted).
3. Soto argues that the district court erred during rebuttal closing argument
by overruling an objection after the government twice characterized the evidence
as “overwhelming.” Soto objected on the ground that the government’s statements
were improper vouching. Although that argument is improper, reversal is not
called for if Soto suffered no prejudice. United States v. Tam, 240 F.3d 797, 802
(9th Cir. 2001). In light of the ample evidence of guilt, the governments’ two
statements did not materially affect the verdict and thus was harmless error.
4. Finally, Soto argues that the cumulative errors in his trial require reversal.
See Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007). After consideration of
each alleged instance of error proffered by Soto, we find no cumulative error
meriting reversal.
AFFIRMED.
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