                                                                               FILED
                            NOT FOR PUBLICATION                                APR 23 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-30047

              Plaintiff - Appellee,              D.C. No. 1:11-cr-00140-RFC-2

  v.
                                                 MEMORANDUM*
RODRICK D. GANT,

              Defendant - Appellant.


                   Appeal from the United States District Court
                           for the District of Montana
                Richard F. Cebull, Senior District Judge, Presiding

                       Argued and Submitted April 11, 2014
                               Seattle, Washington

Before: HAWKINS, RAWLINSON, and BEA, Circuit Judges.

       Appellant Rodrick D. Gant (Gant), who was convicted of conspiracy to

commit robbery affecting interstate commerce in violation of the Hobbs Act,

challenges the district court’s denial of his motion for a mistrial premised on the

government’s misstatement of the law during closing arguments.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Although the government concedes that it misstated the law during closing

arguments concerning application of a firearms stipulation to the Hobbs Act

offense’s jurisdictional element, a mistrial was not warranted because “[t]he

misstatement by the prosecutor was not so gross as probably to prejudice [Gant]. . .

.” United States v. Del Toro-Barboza, 673 F.3d 1136, 1153 (9th Cir. 2012)

(citation and internal quotation marks omitted). The misstatement did not render

Gant’s trial fundamentally unfair due to the significant evidence of Gant’s

participation in the Hobbs Act conspiracy, including audio and video recordings of

Gant’s incriminating statements and conduct. See United States v. Sanchez, 659

F.3d 1252, 1260 (9th Cir. 2011) (observing that “[w]hen the case is particularly

strong, the likelihood that [the misstatement] will affect the defendant’s substantial

rights is lessened because the jury’s deliberations are less apt to be influenced. . .

.”) (citation omitted). The district court also minimized any prejudice associated

with the government’s erroneous argument by properly instructing the jury on the

requisite elements of the Hobbs Act offense and that the attorneys’ arguments were

not evidence. See United States v. Mendoza, 244 F.3d 1037, 1045 (9th Cir. 2001)

(concluding that “[w]hen counsel misstates the law, the misstatement is harmless

error if the court properly instructs the jury on that point of law or instructs that the

attorneys’ statements and arguments are not evidence”) (citation omitted).


                                            2
      As Gant acknowledges, his challenge to the sufficiency of the evidence

premised on a conspiracy to rob a fictitious narcotics trafficker is foreclosed by our

precedent. See United States v. Rodriguez, 360 F.3d 949, 957 (9th Cir. 2004).

      AFFIRMED.




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