                                                                                FILED
                              NOT FOR PUBLICATION                               OCT 28 2013

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



                               FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                          No. 12-10459

                 Plaintiff - Appellee,             D.C. No. 2:10-cr-00211-GEB-7

  v.
                                                   MEMORANDUM*
JOHN SMITHSON,

                 Defendant - Appellant.


                      Appeal from the United States District Court
                          for the Eastern District of California
                 Garland E. Burrell, Jr., Senior District Judge, Presiding

                               Submitted October 7, 2013**
                                San Francisco, California

Before:         N.R. SMITH and NGUYEN, Circuit Judges, and QUIST, 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 Gordon J. Quist, District Judge for the United States
District Court for the Western District of Michigan, sitting by designation.
      John Smithson appeals his conviction for conspiracy to defraud the United

States in violation of 18 U.S.C. § 286. We have jurisdiction pursuant to 28 U.S.C.

§ 1291. We reject his arguments and affirm.

      Where defense counsel failed to object to alleged acts of prosecutorial

misconduct at trial, we review for plain error. United States v. Cabrera, 201 F.3d

1243, 1246 (9th Cir. 2000). Smithson’s objection to the proposed missing witness

jury instruction, where one was never given, cannot act as an objection to the missing

witness closing argument. See Bird v. Glacier Elec. Coop., Inc., 255 F.3d 1136, 1148

(9th Cir. 2001) (if counsel fails to raise a timely objection during closing arguments

or move for a new trial before the verdict is delivered, attacks on allegedly improper

comments in closing arguments are reviewed for plain error).

      Smithson alternatively argues that the prosecutor’s comment during closing

argument on Smithson’s failure to call Smithson’s brother as a corroborating witness

constituted prosecutorial misconduct. “A prosecutor’s comment on a defendant’s

failure to call a witness . . . is . . . permissible, so long as the prosecutor does not

violate the defendant’s Fifth Amendment rights by commenting on the defendant’s

failure to testify.” Cabrera, 201 F.3d at 1250. But the prosecutor must also be sure

not to shift the burden of proof; such may be done by expressly telling the jury the

government bears the burden of proof. See id.


                                           2
      The prosecutor’s adverse inference argument was not plain error. Viewed in

the context of the entire record, United States v. Young, 470 U.S. 1, 16 (1985), the

prosecutor’s argument was isolated; any prejudice was cured by the prosecutor’s

repeated reminder that the government had the burden of proof, see, e.g., Cabrera,

201 F.3d at 1249–50; United States v. Vaandering, 50 F.3d 696, 701–02 (9th Cir.

1995); the court’s jury instructions that the government had the burden of proof and

that the attorneys’ arguments were not evidence, United States v. Garcia-Guizar, 160

F.3d 511, 522 (9th Cir. 1998); and defense counsel’s response during Smithson’s

closing argument, United States v. Tucker, 641 F.3d 1110, 1121 (9th Cir. 2011).

      AFFIRMED.




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