FILED
NOT FOR PUBLICATION DEC 19 2012
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. 11-50093
Plaintiff - Appellee, D.C. No. 8:10-CR-00033-AG-2
v.
MEMORANDUM *
ISAAC REYES MARTINEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted November 8, 2012
Pasadena, California
Before: REINHARDT and THOMAS, Circuit Judges, and NAVARRO,**
District Judge.
Appellant Isaac Reyes Martinez appeals his conviction after jury trial for
conspiracy to possess with intent to distribute methamphetamine, 21 U.S.C.
§§ 841(a)(1) and 846, and possession of firearms in furtherance of a drug
trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i).
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The Honorable Gloria M. Navarro, United States District Judge for the District of
Nevada, sitting by designation.
We hold that the government violated Appellant’s Fifth Amendment right to
be convicted solely on the evidence adduced at trial, under United States v.
Schuler, 813 F.2d 978, 981–82 (9th Cir. 1987), by commenting in its closing
argument on Appellant’s demeanor in the courtroom during witness Acosta-Ruiz’s
testimony and identification of Appellant. Analyzing the record for harmless error
pursuant to Chapman v. California, 386 U.S. 18, 24 (1967), we cannot conclude
that this error was harmless beyond a reasonable doubt. See United States v.
Weatherspoon, 410 F.3d 1142, 1151 (9th Cir. 2005). Therefore we reverse
Appellant’s conviction and remand the case to the district court for a new trial.
REVERSED and REMANDED.
2