                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 29 2010

                                                                        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. 07-50356

              Plaintiff - Appellee,              D.C. No. CR-05-01111-RGK-03

  v.
                                                 MEMORANDUM *
OSCAR GUERRA RODRIGUEZ, a/k/a
OSCAR RODRIGUEZ,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 07-50357

              Plaintiff - Appellee,              D.C. No. CR-05-01111-RGK-04

  v.

JOSE MURILLO,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 07-50369

              Plaintiff - Appellee,              D.C. No. CR-05-01111-RGK-01



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
     v.

TOMMY MORENO, a/k/a THOMAS
LOPEZ, THOMAS MORENO, TOMAS
MORENO, “TOMAS” and “T-BUG”,

                 Defendant - Appellant.



                       Appeal from the United States District Court
                          for the Central District of California
                       R. Gary Klausner, District Judge, Presiding

                           Argued and Submitted July 14, 2010
                                  Pasadena, California

Before: FARRIS, HALL and SILVERMAN, Circuit Judges.

          Oscar Rodriguez, Tommy Moreno, and Jose Murillo appeal their assault

convictions under 18 U.S.C. §§ 113(a)(1), 113(a)(3), and 113(a)(6).

1.        Rodriguez and Murillo argue that their due process rights were violated

because of secret deals that the government had with three of the trial witnesses.

We review these claims de novo. See United States v. Blanco, 392 F.3d 382, 387

(9th Cir. 2004). All of these prosecutorial misconduct claims are based on the

unproven allegation that the witnesses were promised benefits in exchange for

testifying. These issues were not raised in the district court, and we cannot resolve

them based on the current incomplete factual record. See United States v. Childs,




                                            2
944 F.2d 491, 495 (9th Cir. 1991); United States v. Flores-Payon, 942 F.2d 556,

558 (9th Cir. 1991).

      Appellants’ explanation for failing to raise this issue in the district court is

that the information supporting their allegations came to light after their post-trial

motions. While a remand is improper on this direct appeal, our ruling is without

prejudice to Appellants’ right to bring a § 2255 motion on this or any other issue if

otherwise appropriate.

2.    Appellants argue that the district court erred in sealing various documents

before trial, and in denying their post-trial motions to unseal the documents. We

review these decisions for an abuse of discretion. United States v. Shryock, 342

F.3d 948, 983 (9th Cir. 2003). Appellants’ claims are meritless. The government

submitted the documents for the proper purpose of having the district court inspect

and evaluate the materiality of the documents. See United States v. Cadet, 727

F.2d 1453, 1467-68 (9th Cir. 1984). The district court’s findings when denying

Appellants’ request to unseal the documents were adequate. The court did not err

in finding that Appellants had failed to demonstrate that the documents should be

unsealed. We have reviewed the documents and conclude that they are either

irrelevant or confidential. The contention that seeing the documents may have




                                           3
altered the district judge’s impartiality ignores our precedent. See United States v.

Lee, 648 F.2d 667, 669 (9th Cir. 1981).

3.    Moreno attacks the district court’s denial of his motion to substitute counsel.

We review the denial for an abuse of discretion. See United States v. Nguyen, 262

F.3d 998, 1004 (9th Cir. 2001); United States v. Garrett, 179 F.3d 1143, 1144-45

(9th Cir. 1999) (en banc). Although there was a substantial conflict that resulted in

Moreno proceeding pro se, the court’s inquiry was adequate. The court reasonably

found that other continuances had been granted, that another continuance would

have inconvenienced the court and the parties, and that the delay was caused by

Moreno. The court also questioned Moreno’s credibility and motives for bringing

the motion so late. The court did not err in assessing the conflict between Moreno

and his counsel, nor did it abuse its discretion through “an unreasoning and

arbitrary insistence upon expeditiousness in the face of a justifiable request for

delay.” Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (quotation marks and citation

omitted).

4.    Moreno and Murillo argue that their convictions must be reversed because

their Sixth Amendment right to confront witnesses against them was violated.

Even assuming arguendo that the statements by Rodriguez, as recounted by Davis,

were testimonial, the Confrontation Clause error was harmless beyond a reasonable


                                           4
doubt. See United States v. Nguyen, 565 F.3d 668, 675 (9th Cir. 2009). The

evidence against Moreno was overwhelming, the Appellants were acquitted on the

conspiracy charge, and Davis did not testify about whether Moreno had an intent to

kill. As for Murillo, Davis’s testimony hardly addressed Murillo’s actions towards

Wiseman or the simple assault charge of which he was convicted. As Wiseman not

only identified Murillo as part of the group discussing Wiseman, but also as part of

the group attacking him, Davis’s testimony was also cumulative regarding Murillo.

5.    Murillo argues that no reasonable juror could have concluded that he was

guilty of simple assault. Wiseman testified that right before Wiseman was stabbed,

Murillo was part of a group of men standing a few feet from him, and Wiseman

heard that group talking about attacking Wiseman. That group, along with others,

then attacked him. Everyone was hitting, stabbing or restraining Wiseman. The

video footage and still frames show Murillo with an outstretched hand apparently

touching Wiseman. There was sufficient evidence to support the conviction.

6.    Murillo argues that the jury instruction on simple assault was plainly

erroneous. The instruction misplaced an adverb, but it was not plainly erroneous.

      AFFIRMED.




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