                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 14 2011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. 10-10421

              Plaintiff - Appellee,              D.C. No. 2:06-cr-00396-JCM-
                                                 LRL-1
  v.

EZRA HALLOCK,                                    MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                           Submitted October 12, 2011 **
                             San Francisco, California

Before: THOMAS and MURGUIA, Circuit Judges, and ALBRITTON, Senior
District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 William H. Albritton, III, Senior District Judge for the
U.S. District Court for Middle Alabama, sitting by designation.
      Defendant Ezra Hallock was convicted of receipt of child pornography in

violation of 18 U.S.C. § 2252A(a)(2) and one count of possession of child

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Hallock appeals the

district court’s denial of his motion to dismiss the indictment on speedy trial

grounds and alleges four other errors: (1) prosecutorial misconduct; (2) admission

of suppressed evidence; (3) ineffective assistance of counsel; and (4) improper

admission of expert testimony as lay opinion testimony. Because the history and

facts of the case are familiar to the parties, we need not recount them here.

      We affirm the district court’s denial of Hallock’s speedy trial motion.

Contrary to Hallock’s argument, scheduling matters, including the need for a

continuance, are an attorney’s prerogative and may be decided without client

approval. Gonzalez v. United States, 553 U.S. 242, 249 (2008); New York v. Hill,

528 U.S. 110, 115 (2000). Additionally, the Speedy Trial Act (“STA”), 18 U.S.C.

§ 3161, permits a court to grant a continuance “at the request of the defendant or

his counsel,” suggesting the defendant’s express consent is not required before one

can be granted. Id. § 3161(h)(7)(A) (emphasis added). Finally, Hallock did not

voice any contemporaneous objection to the continuances about which he now

complains. See United States v. Lloyd, 125 F.3d 1263, 1271 (9th Cir. 1997).

Because Hallock’s STA rights were not violated, we presume that his trial


                                           2
complied with the Sixth Amendment’s speedy trial requirements, United States v.

Baker, 63 F.3d 1478, 1497 (9th Cir. 1995), and Hallock has not rebutted that

presumption.

      Hallock also argues that the Government committed prosecutorial

misconduct during its closing argument by mentioning suppressed statements

testified to by Agent Hodgdon during defense cross-examination. Where, as here,

the “defendant fails to object to alleged prosecutorial misconduct, the court reviews

for plain error.” United States v. Tucker, 641 F.3d 1110, 1120 (9th Cir. 2011).

“To obtain a reversal based on prosecutorial misconduct, [a defendant] must

establish both misconduct and prejudice.” United States v. Wright, 625 F.3d 583,

609–10 (9th Cir. 2010).

      Hallock has failed to establish misconduct. The district court neither struck

Agent Hodgdon’s disputed testimony from the record nor admonished the

Government concerning its use. Accordingly, during its closing argument, the

Government did nothing more than refer to evidence in the record, which is not

misconduct. Tucker, 641 F.3d at 1120 (“Prosecutors can argue reasonable

inferences based on the record and have considerable leeway to strike hard blows

based on the evidence and all reasonable inferences from the evidence.” (internal

quotation marks and citations omitted)).


                                           3
      We also reject Hallock’s claim that the district court erred by admitting

Agent Hodgdon’s testimony into evidence. Because Hallock did not object at trial,

we review for plain error. United States v. Sioux, 362 F.3d 1241, 1244 n.5 (9th

Cir. 2004). The admission of Agent Hodgdon’s testimony was not plainly

erroneous because defense counsel asked questions that Agent Hodgdon could not

truthfully answer without referring to Hallock’s suppressed statements. See United

States v. Beltran-Rios, 878 F.2d 1208, 1212 (9th Cir. 1989) (“We previously have

allowed the Government to introduce otherwise excludable testimony when the

defendant ‘opens the door’ by introducing potentially misleading testimony.”).

      Hallock further argues that attorney Donald Green provided ineffective

assistance of counsel by failing to timely file a motion to suppress the search

warrant issued for Hallock’s home. To prevail on an ineffective assistance claim, a

defendant must show deficient performance and resulting prejudice. Strickland v.

Washington, 466 U.S. 668, 687–88 (1984). “Ineffective assistance claims . . . are

ordinarily left for collateral habeas proceedings due to the lack of a sufficient

evidentiary record as to what counsel did, why it was done, and what, if any,

prejudice resulted.” United States v. Sager, 227 F.3d 1138, 1149 (9th Cir. 2000)

(internal quotation marks omitted). We find that Hallock’s claim is best left for




                                           4
collateral review, as the record is not sufficiently developed to permit

determination of the issue.

      Finally, Hallock contends that the district court erred by admitting Agent

Bujdoso’s testimony as lay, rather than expert, opinion testimony. Even if we

assume that the district court erred, that error was harmless because we can

“discern from the record that [Agent Bujdoso] could have been qualified as an

expert under Federal Rule of Evidence 702.” United States v. Mendoza, 244 F.3d

1037, 1046 (9th Cir. 2001). Agent Bujdoso spent thousands of hours studying

Google Hello and became intimately familiar the program’s workings and

investigatory uses. He also taught other law enforcement officials how to use

Google Hello, and Google would even refer other investigators with questions

about Google Hello to Agent Bujdoso.

      The district court’s denial of Hallock’s speedy trial motion and

Hallock’s conviction are AFFIRMED.




                                           5
