                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           MAR 13 2018
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                       No. 16-50488

              Plaintiff - Appellee,             D.C. No. 3:16-cr-01150-JM-1

 v.
                                                MEMORANDUM*
ARMANDO MONTIEL PALOMO,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Southern District of California
                 Jeffrey T. Miller, Senior District Judge, Presiding

                            Submitted March 8, 2018**
                               Pasadena, California

Before: GOULD and MURGUIA, Circuit Judges, and ZOUHARY,*** District Judge.




      *      This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
      Armando      Montiel    Palomo     appeals   his   conviction    for   importing

methamphetamine in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

      1.     The district court did not abuse its discretion in allowing Officer Fosdick

to explain why his attention was drawn to Palomo at the border crossing. See United

States v. Gilley, 836 F.2d 1206, 1213 (9th Cir. 1988). Fosdick’s impression that

Palomo was nervous was relevant circumstantial evidence of an essential element of

the offense: whether Palomo knew he was importing a controlled substance. This

Court has repeatedly upheld the admissibility of such testimony in drug importation

cases. See United States v. Munoz, 412 F.3d 1043, 1050 (9th Cir. 2005); United States

v. Gutierrez-Espinosa, 516 F.2d 249, 250 (9th Cir. 1975).

      2.     Nor did the district court abuse its discretion in overruling Palomo’s

claims of prosecutorial misconduct. See United States v. Tucker, 641 F.3d 1110, 1120

(9th Cir. 2011). First, the Government did not misstate the evidence during closing

argument. One of the trial prosecutors characterized Palomo’s statement during a

June 2016 jailhouse phone call—“I got caught”—as an admission of guilt. Palomo

contends this misled the jury into believing he never protested his innocence after his

arrest. But the prosecutor clearly limited her comments to that single recorded phone

call and did not purport to describe Palomo’s conduct during any other conversations.


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Further, though Palomo took the stand, he did not seek to introduce evidence of the

other calls. See Fed. R. Evid. 801(d)(1)(B)(ii). The district court did not err in

overruling Palomo’s objection and declining to issue a curative instruction.

      Second, the Government did not commit misconduct during rebuttal closing

argument by describing a defense tactic as a “shell game.” Another trial prosecutor

criticized Palomo’s choice of character witnesses—one had last seen Palomo a month

before his arrest, and the other had not socialized with him for several years. The

prosecutor implied the defense was attempting to hide the truth by calling witnesses

who did not know Palomo very well. But criticizing defense tactics is fair game

during closing, and this type of argument is generally considered “well ‘within normal

bounds of advocacy.’” United States v. Tomsha-Miguel, 766 F.3d 1041, 1047 (9th

Cir. 2014) (quoting United States v. Del Toro-Barboza, 673 F.3d 1136, 1152 (9th Cir.

2012)); see also United States v. Ruiz, 710 F.3d 1077, 1086 (9th Cir. 2013) (“[T]he

prosecutor’s characterization of the defense’s case as ‘smoke and mirrors’ was not

misconduct.”). The district court did not err in overruling Palomo’s objection.

      3.     Because Palomo fails to identify an individual error by the trial court, his

argument for reversal based on the cumulative error doctrine also fails. See United

States v. Gutierrez, 995 F.2d 169, 173 (9th Cir. 1993).

      AFFIRMED.


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