NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 10 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10008
Plaintiff-Appellee, D.C. No.
4:17-cr-01792-JAS-EJM-1
v.
MATTHEW RENE OROZCO, AKA MEMORANDUM*
Matthew Orozco, AKA Antonio Orozco-
Garcia, AKA Matthew Rene Orozco,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Submitted July 30, 2021**
San Francisco, California
Before: McKEOWN and NGUYEN, Circuit Judges, and LAMBERTH,*** District
Judge.
Matthew Orozco was convicted by a jury of conspiracy to transport and
*
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 Royce C. Lamberth, United States District Judge for
the District of Columbia, sitting by designation.
transportation of an undocumented immigrant under 8 U.S.C. § 1324(a)(1). We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. Reviewing for abuse of discretion, see United States v. Molina, 596
F.3d 1166, 1168 (9th Cir. 2010), we find that the district court properly denied
Orozco’s motion to set aside his stipulation to release a material witness. “The test
regarding the validity of a stipulation is voluntariness.” Id. at 1168–69. Orozco
offered no evidence that anyone coerced him into entering the stipulation. See
Adams v. Peterson, 968 F.2d 835, 843 (9th Cir. 1992) (en banc) (finding a
stipulation voluntary where there was no evidence of coercion). Orozco’s attorney
and the magistrate judge described in detail the nature and consequences of the
stipulation, and Orozco affirmed that he understood that the government could
testify as to the material witness’s statements if Orozco signed the stipulation. See
Molina, 596 F.3d at 1169 (finding a stipulation voluntary because the defendant
had the advice of counsel before signing the stipulation, and the stipulation clearly
explained its consequences).1 Further, Orozco was sufficiently aware of the
evidence the government could introduce at trial because, with counsel, he
reviewed a report summarizing the witness’s interview prior to signing the
1
We decline to review any claim that Orozco received ineffective assistance
of counsel because his stand-in attorney had a conflict of interest. See United
States v. Rahman, 642 F.3d 1257, 1259–60 (9th Cir. 2011) (explaining that we
review ineffective assistance claims on direct appeal only in “unusual cases” not
present here).
2
stipulation, see United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir.
1986) (finding a stipulation voluntary because the defendant “understood that the
evidence stipulated to was the same evidence upon which a jury found his co-
defendants guilty”), and Orozco does not establish that his lack of awareness that
he was required to sign the stipulation to continue plea negotiations rendered his
stipulation involuntary.
Orozco’s other arguments regarding the stipulation likewise fail. Because
Orozco voluntarily entered the stipulation, he waived his right to confront and
cross-examine the witness. See Wilson v. Gray, 345 F.2d 282, 287 (9th Cir. 1965).
And any suggestion that the witness may have had exculpatory evidence is purely
speculative.
2. Orozco also argues that the district court erred in denying his motion
to strike a government witness’s testimony about statements Orozco made pursuant
to a proffer agreement.2 Even if the court erred in admitting this evidence, any
error was harmless. Fed. R. Crim. P. 52(a). There was overwhelming evidence of
Orozco’s guilt. Though the court instructed the jury on duress, Orozco did not
testify, call any witnesses, or offer any evidence to support this defense. See
United States v. Gonzalez-Flores, 418 F.3d 1093, 1102 (9th Cir. 2005) (finding
2
The government’s unopposed motion to supplement the record with the
parties’ proffer agreement (Docket Entry No. 37) is granted.
3
admission of testimony harmless where the defendant did not put forth a defense,
and the evidence against him was overwhelming). Therefore, any error was
harmless.
AFFIRMED.
4