FILED
NOT FOR PUBLICATION OCT 18 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30320
Plaintiff - Appellee, D.C. No. 3:12-cr-05204-RJB-1
v.
MEMORANDUM*
EZEQUIEL ALEJANDRO PIMENTEL
QUIROZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, Senior District Judge, Presiding
Argued and Submitted October 9, 2013
Seattle, Washington
Before: GRABER and MURGUIA, Circuit Judges, and BURY,** District Judge.
Following a five-day trial, a jury convicted Defendant Ezequiel Alejandro
Pimentel Quiroz of being a felon in possession of a firearm, in violation of 18
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David C. Bury, United States District Judge for the
District of Arizona, sitting by designation.
U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). He timely appeals, challenging the
conviction. We affirm.
1. Assuming, without deciding, that the district court abused its discretion in
failing to give a limiting instruction concerning the jury’s consideration of
Defendant’s prior convictions, any error was harmless. See Fed. R. Crim. P. 52(a)
(providing that a non-constitutional error does not require reversal unless it is
"more probable than not" that the error affected the verdict); United States v.
Rohrer, 708 F.2d 429, 432 (9th Cir. 1983) (stating same standard). In view of the
eyewitness testimony of a disinterested witness; Defendant’s formal and informal
confessions about possession of the firearm; his own testimony as to his prior
convictions; and Defendant’s changing stories, we are confident that any error had
no effect on the verdict.
2. The district court did not plainly err in instructing the jury with respect to
Defendant’s earlier admission of guilt regarding possession of the firearm. See
Fed. R. Crim. P. 52(b) (providing that we review for plain error when a defendant
fails to object in the district court); United States v. Marcus, 130 S. Ct. 2159, 2164
(2010) (describing the plain error standard). Because Defendant was a party, his
statement was admissible as non-hearsay. See Matylinsky v. Budge, 577 F.3d
1083, 1094 (9th Cir. 2009) (relying on Fed. R. Evid. 801(d)(2)(A)).
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3. The in-court identification of Defendant by the disinterested witness did
not deprive Defendant of his due process right to a fair trial. Because Defendant
failed to object, we review only for plain error and find none. See United States v.
Domina, 784 F.2d 1361, 1367–69 (9th Cir. 1986) (discussing in-court
identification procedures).
4. We review for plain error Defendant’s claim concerning closing
arguments to the jury, because he did not make the argument in the district court.
The prosecutor’s closing argument that "they" (implying Defendant and his
lawyer) were "perpetrating a fraud" was improper. Nonetheless, even if the
argument rose to the level of misconduct, which we need not decide, there is no
plain error. See United States v. Young, 470 U.S. 1, 16 (1985) ("[T]he
prosecutor’s remarks cannot be said to rise to the level of plain error. Viewed in
context, the prosecutor’s statements, although inappropriate and amounting to
error, were not such as to undermine the fundamental fairness of the trial and
contribute to a miscarriage of justice."). In addition to the overwhelming evidence
of guilt noted above, we observe that the jury acquitted Defendant of another
charge, demonstrating the jury’s ability to consider the evidence fairly.
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5. The prosecutor’s argument did not impermissibly shift the burden of
proof. It merely remarked on the weaknesses in Defendant’s case, which is
permissible. United States v. Vaandering, 50 F.3d 696, 701–02 (9th Cir. 1995).
6. Any potential errors, even considered cumulatively, did not render
Defendant’s trial unfair. See United States v. Frederick, 78 F.3d 1370, 1381 (9th
Cir. 1996) (providing for consideration of cumulative error).
AFFIRMED.
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