FILED
NOT FOR PUBLICATION JUL 08 2011
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. 09-50499
Plaintiff - Appellee,
v. MEMORANDUM *
ALVARO MURILLO,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted June 8, 2011 **
Pasadena, California
Before: TROTT, RYMER, Circuit Judges, and BEISTLINE,***1 District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
This panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Ralph R. Beistline, United States District Judge for the
District of Alaska, sitting by designation.
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The facts of this case and the procedural history are known to the parties.
Appellant appeals the United States District Court for the Central District of
California’s decision convicting Appellant on four charges. Appellant claims that
the District Court committed two errors during the trial proceedings that warrant
reversal: commenting on Appellant’s guilt and vouching for all of the
Government’s cooperating witnesses. Despite not objecting to either alleged error,
Appellant argues that both failures constitute plain error, and that this court should
vacate Appellant’s convictions and remand this case for a new trial. The court
affirms the lower court’s decision.
Standard of Review
When a defendant fails to object to alleged judicial misconduct during a
trial, such misconduct is reviewed for plain error. United States v. Morgan, 376
F.3d 1002, 1007 (9th Cir. 2004) (citing United States v. Springer, 51 F.3d 861, 864
n.1 (9th Cir. 1995)). Under Federal Rules of Criminal Procedure Rule 52(b), an
appellate court can “recognize a ‘plain error that affects substantial rights,’ even if
the claim of error was ‘not brought’ to the district court's ‘attention.’” United
States v. Marcus, _ U.S. _, 130 S. Ct. 2159, 2164 (2010) (quoting Puckett v.
United States, _ U.S. _, 129 S. Ct. 1423, 1429 (2009)). Therefore, in order to
succeed in proving the occurrence of plain error, an appellant must demonstrate
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“that (1) there is an ‘error’; (2) the error is ‘clear or obvious, rather than subject to
reasonable dispute’; (3) the error ‘affected the appellant's substantial rights, which
in the ordinary case means’ it ‘affected the outcome of the district court
proceedings’; and (4) ‘the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.’” Id. However, a reversal is only warranted “if
permitting the convictions to stand would result in a miscarriage of justice.” United
States v. Fuchs, 218 F.3d 957, 963 (9th Cir. 2000).
Discussion
Appellant contends that the court stated that he was “obviously” guilty
when the court commented on a witness’s testimony. Appellant’s contention,
however, is merely a misreading of the record: The court did not comment on
Appellant’s guilt.
It is clear from reading the transcript of the hearing that the “he” in the
court’s statement was the witness, not Appellant. The court was merely describing
its view on what the witness was doing in answering the Government’s question of
who was the witness’s co-conspirator or possibly commenting on the witness’s
own admitted guilt. The court was seeking to prevent the witness from opining
that Appellant was guilty in answering the Government’s question. Appellant’s
argument fails.
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Appellant’s argument that the court’s vouching for the Government’s
witnesses constitutes plain error likewise fails. The court’s vouching did not
constitute a structural error that would automatically fulfil the third prong of the
“plain error” standard because such error was not serious or grave. Furthermore,
the vouching did not affect Appellant’s substantial rights because such vouching
did not “affect the outcome of the district court proceedings.” The court’s
numerous instructions to the jury concerning their role as the final fact finder in the
case obviated any adverse impact the court’s mild and isolated vouching could
have caused. United States v. Sanchez-Lopez, 879 F.2d 541, 551-53 (9th Cir.
1989). Morever, the case was not close, as the evidence against Appellant was
overwhelming. United States v. Frederick, 78 F.3d 1370, 1378-79 (9th Cir. 1996)
(quoting United States v. Kerr, 981 F.2d 1050, 1054 (9th Cir. 1992)).
Additionally, the court’s vouching did not seriously affect the judicial
proceedings. Appellant fails to prove that such vouching affected the jury’s
verdict. Consequently, it would not be a “miscarriage of justice” for Appellant’s
conviction to stand due to the weight of the evidence against him and the myriad
jury instructions given by the court. Fuchs, 218 F.3d at 963.
Conclusion
Appellant’s plain error arguments fail. The decision of the lower court is
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AFFIRMED.
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