                                                                          FILED
                           NOT FOR PUBLICATION                             OCT 18 2013

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 12-30320

              Plaintiff - Appellee,             D.C. No. 3:12-cr-05204-RJB-1

  v.
                                                MEMORANDUM*
EZEQUIEL ALEJANDRO PIMENTEL
QUIROZ,

              Defendant - Appellant.


                  Appeal from the United States District Court
                     for the Western District of Washington
                 Robert J. Bryan, Senior District Judge, Presiding

                      Argued and Submitted October 9, 2013
                              Seattle, Washington

Before: GRABER and MURGUIA, Circuit Judges, and BURY,** District Judge.

       Following a five-day trial, a jury convicted Defendant Ezequiel Alejandro

Pimentel Quiroz of being a felon in possession of a firearm, in violation of 18




        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
          The Honorable David C. Bury, United States District Judge for the
District of Arizona, sitting by designation.
U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). He timely appeals, challenging the

conviction. We affirm.

      1. Assuming, without deciding, that the district court abused its discretion in

failing to give a limiting instruction concerning the jury’s consideration of

Defendant’s prior convictions, any error was harmless. See Fed. R. Crim. P. 52(a)

(providing that a non-constitutional error does not require reversal unless it is

"more probable than not" that the error affected the verdict); United States v.

Rohrer, 708 F.2d 429, 432 (9th Cir. 1983) (stating same standard). In view of the

eyewitness testimony of a disinterested witness; Defendant’s formal and informal

confessions about possession of the firearm; his own testimony as to his prior

convictions; and Defendant’s changing stories, we are confident that any error had

no effect on the verdict.

      2. The district court did not plainly err in instructing the jury with respect to

Defendant’s earlier admission of guilt regarding possession of the firearm. See

Fed. R. Crim. P. 52(b) (providing that we review for plain error when a defendant

fails to object in the district court); United States v. Marcus, 130 S. Ct. 2159, 2164

(2010) (describing the plain error standard). Because Defendant was a party, his

statement was admissible as non-hearsay. See Matylinsky v. Budge, 577 F.3d

1083, 1094 (9th Cir. 2009) (relying on Fed. R. Evid. 801(d)(2)(A)).


                                           2
      3. The in-court identification of Defendant by the disinterested witness did

not deprive Defendant of his due process right to a fair trial. Because Defendant

failed to object, we review only for plain error and find none. See United States v.

Domina, 784 F.2d 1361, 1367–69 (9th Cir. 1986) (discussing in-court

identification procedures).

      4. We review for plain error Defendant’s claim concerning closing

arguments to the jury, because he did not make the argument in the district court.

The prosecutor’s closing argument that "they" (implying Defendant and his

lawyer) were "perpetrating a fraud" was improper. Nonetheless, even if the

argument rose to the level of misconduct, which we need not decide, there is no

plain error. See United States v. Young, 470 U.S. 1, 16 (1985) ("[T]he

prosecutor’s remarks cannot be said to rise to the level of plain error. Viewed in

context, the prosecutor’s statements, although inappropriate and amounting to

error, were not such as to undermine the fundamental fairness of the trial and

contribute to a miscarriage of justice."). In addition to the overwhelming evidence

of guilt noted above, we observe that the jury acquitted Defendant of another

charge, demonstrating the jury’s ability to consider the evidence fairly.




                                          3
      5. The prosecutor’s argument did not impermissibly shift the burden of

proof. It merely remarked on the weaknesses in Defendant’s case, which is

permissible. United States v. Vaandering, 50 F.3d 696, 701–02 (9th Cir. 1995).

      6. Any potential errors, even considered cumulatively, did not render

Defendant’s trial unfair. See United States v. Frederick, 78 F.3d 1370, 1381 (9th

Cir. 1996) (providing for consideration of cumulative error).

      AFFIRMED.




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