FILED
NOT FOR PUBLICATION DEC 16 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50098
Plaintiff - Appellee, D.C. No. CR 07-118-CAS
v.
MEMORANDUM *
CARLOS SERRANO,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted December 10, 2010
Pasadena, California
Before: TROTT, WARDLAW, and IKUTA, Circuit Judges.
Though the district court erred in overruling defense counsel’s objection
when the prosecutor asked Carlos Serrano during cross-examination whether
Postal Service Inspector Kugel was “lying,” United States v. Harrison, 585 F.3d
1155, 1158 (9th Cir. 2009), the government has satisfied its burden of establishing
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
harmlessness, United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997)
(per curiam), by demonstrating that it is not “more probable than not that the
alleged misconduct affected the jury’s verdict,” United States v. Nobari, 574 F.3d
1065, 1082 (9th Cir. 2009) (quoting United States v. Simtob, 901 F.2d 799, 806
(9th Cir. 1990)) (internal quotation marks omitted). First, the government
provided ample evidence that Serrano knew that he was participating in a
fraudulent transaction, United States v. Weatherspoon, 410 F.3d 1142, 1151 (9th
Cir. 2005); see also Nobari, 574 F.3d at 1082, including Serrano’s sworn
statement, emails instructing him to make misrepresentations to the bank,
documents in which Serrano certified the veracity of false information, and
testimonial evidence that he employed aliases and opened a bank account for the
sole purpose of depositing funds from the transaction.
Moreover, because Serrano responded to the government’s improper
question by stating that Kugel was telling the truth, the question did not pit
Serrano’s credibility against Kugel’s, a fact which further undercuts Serrano’s
claim that the improper question was harmful. See Harrison, 585 F.3d at 1159;
United States v. Combs, 379 F.3d 564, 573 (9th Cir. 2004). Contrary to Serrano’s
argument, the case cannot be reduced to a credibility contest between Serrano and
Kugel as to the veracity of Serrano’s statement that he knew “from day one” that
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the transaction was suspicious, because the government needed only to establish
that Serrano knew during the course of the transaction that he was participating in
fraudulent activities. See 18 U.S.C. §§ 371, 1344(2).
Finally, the court advised the jury that it was the “sole and exclusive judge[]
of the credibility of each of the witnesses called to testify in this case.” See
Harrison, 585 F.3d at 1159–60. The jury is presumed to have followed the court’s
instructions. See Zafiro v. United States, 506 U.S. 534, 540–41 (1993).
AFFIRMED.
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