NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 18 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-50152
Plaintiff - Appellee, D.C. No. 3:11-cr-03639-AJB-1
v.
MEMORANDUM*
JONATHAN CRUZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Argued and Submitted November 17, 2014
Pasadena, California
Before: SCHROEDER, PREGERSON, and NGUYEN, Circuit Judges.
Jonathan Cruz (“Cruz”) was found guilty of importing 9.84 kilograms of
marijuana and 4.50 kilograms of methamphetamine, in violation of 21 U.S.C.
§§ 952 and 960, and sentenced to the mandatory minimum sentence of ten years.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
Cruz appeals his conviction and sentence. We have jurisdiction under 28 U.S.C.
§ 1291. Because we reverse Cruz’s conviction for prosecutorial misconduct, we do
not reach his other issues.
We review prosecutorial misconduct claims for plain error where defense
counsel failed to object before the district court. United States v. Reyes, 660 F.3d
454, 461 (9th Cir. 2011). Under plain error review, we will reverse Cruz’s
conviction only if the prosecutor’s statements were improper and the statements
resulted in substantial prejudice. United States v Sanchez, 659 F.3d 1252, 1256
(9th Cir. 2011).
In rebuttal, the prosecutor argued “[Cruz] is guilty of what he is charged
with. Find him guilty and do the right thing and make him finally take
responsibility for what he did.” By stating “do the right thing” the prosecutor
improperly expressed his personal opinion to the jury. See United States v. McKoy,
771 F.2d 1207, 1210-11 (9th Cir. 1985). Without reference to the evidence or the
burden of proof, the “do the right thing” statement improperly urged the jury to
convict on the basis of the prosecutor’s subjective belief of what was “right,” as
opposed to the persuasive force of the evidence. See Sanchez, 659 F.3d at 1257
(holding prosecutor’s statement to the jury to “send a memo to all drug traffickers”
was improper because it urged the jury to convict for reasons wholly irrelevant to
2
the defendant’s guilt or innocence); United States v. Sanchez, 176 F.3d 1214,
1224-25 (9th Cir. 1999) (holding prosecutor’s statement to the jury that it was its
duty to find defendant guilty was improper because “the prosecutor did not tell the
jury that it had a duty to find the defendant guilty only if every element of the
crime had been proven beyond a reasonable doubt.”).
The prosecutor’s “do the right thing” statement was prejudicial to Cruz for
several reasons. First, because the prosecutor is the sovereign’s representative, the
jury may have been misled into thinking his “do the right thing” statement was
validated by the government. See United States v. Kerr, 981 F.2d 1050, 1053 (9th
Cir. 1992) (“A prosecutor has no business telling the jury his individual
impressions of the evidence. Because he is the sovereign's representative, the jury
may be misled into thinking his conclusions have been validated by the
government's investigatory apparatus.”). Second, the court did not give a curative
instruction. See Sanchez, 659 F.3d at 1258. Third, the prosecutor’s rebuttal
argument was the last thing the jury heard before beginning deliberation; this
timing increased the risk that the prosecutor’s improper statement influenced the
jurors. Id. at 1261. We reverse Cruz’s convictions and remand for a new trial.
REVERSED and REMANDED.
3
FILED
United States v. Cruz, No. 13-50152 FEB 18 2015
MOLLY C. DWYER, CLERK
NGUYEN, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS
I agree that the prosecutor’s “do the right thing” statement clearly constitutes
prosecutorial misconduct. However, under plain error review, we may only
reverse when “prosecutorial misconduct has deprived a defendant of a fair trial,”
which we determine by “look[ing] to the substance of any curative instructions and
the strength of the case against the defendant absent the misconduct.” United
States v. Sanchez, 659 F.3d 1252, 1257 (9th Cir. 2011).
Here, the evidence against Cruz was overwhelming—he was caught red-
handed with the drugs in his car and confessed that he agreed to smuggle the drugs
for money. The single instance of argument error during the government’s rebuttal
did not affect Cruz’s substantial rights. Nevertheless, I am troubled by the
government's failure to recognize the error, particularly because the same office
that prosecuted Cruz recently assured us that its training would “reinforce the
principle that all Assistant U.S. Attorneys must be aware of the rules pertaining to
closing argument and must make every effort to stay well within those rules.”
United States v. Maloney, 755 F.3d 1044, 1046 (9th Cir. 2014) (en banc).
Although the trial in this case occurred before Maloney was decided, the
government, post-Maloney, insisted at oral argument that its statement was proper.
1
It was not. As the majority stated, a prosecutor steps outside of his or her proper
role by encouraging the jury to “do the right thing.”
However, there’s no basis for reversal, not on this or the three other claims
that Cruz also raised on appeal. I therefore would affirm.
2