                                                                           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                               NOT FOR PUBLICATION                          JUL 08 2011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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