                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 17 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-50350

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00094-ODW-1

  v.
                                                 MEMORANDUM*
JOSE RODRIGUEZ ESPINOZA, Jr.,
AKA Junior, AKA Ribs,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Otis D. Wright, District Judge, Presiding

                        Argued and Submitted June 6, 2013
                              Pasadena, California

Before: TROTT, LUCERO**, and W. FLETCHER, Circuit Judges.

       Jose Rodriguez Espinoza, Jr., appeals his convictions of three counts of

distribution of methamphetamine and one count of possession of

methamphetamine on premises where minors reside with the intent to distribute.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Carlos F. Lucero, Circuit Judge for the U.S. Court of
Appeals for the Tenth Circuit, sitting by designation.
He also appeals his 300-month sentence. We have jurisdiction over his timely

appeal, and we affirm.

                                           I

      Espinoza’s first and most serious claim is that the trial judge made a

significant error in the presence of the jury, an error that amounted to a violation of

due process. He asserts that the trial court’s error deprived him of his right to a fair

trial and thus requires that we grant him a new opportunity to contest his guilt. We

agree that the trial court committed the error of which Espinoza complains, but

conclude nevertheless that it was harmless beyond a reasonable doubt.

      The error occurred during the defense’s attempt on cross examination of a

government witness to have that witness identify the area surrounding Espinoza’s

house as a “high crime area.” The defense’s contention was that a disputed bag of

methamphetamine found in that area was not thrown there by the defendant -- as

claimed by two FBI witnesses -- but probably dropped there by some other

criminal.

      In response to an objection by the prosecution, this is how the court’s error

occurred. We underline the trial court’s mistake.

      DEFENSE COUNSEL: You have testified that you are an expert in the
                       area of narcotic investigation and speaking with



                                           2
                                 those involved. Do you know what a high crime
                                 area is?

      PROSECUTOR:                Objection, your Honor. Relevance.

      THE COURT:                 Sustained.

      DEFENSE COUNSEL: May I make a proffer, your Honor?

      THE COURT:                 Quickly.

      DEFENSE COUNSEL: That if this is - - if this is what - - if this is
                       known as a high crime area, then, there is
                       other answers as to why this package may
                       have been there as the police are ramming
                       the door down of the defendant’s apartment.
                       In other words - -

      THE COURT:                 Do we now discount testimony of two FBI
                                 special agents who saw it come from the
                                 window[?]

      DEFENSE COUNSEL: We are certainly impeaching that, and I told
                       the jury in the opening we have a witness
                       that didn’t see the agents and I told the jury I
                       am contesting that evidence.

      THE COURT:                 All right. Let’s move on. Wall Street is a
                                 high crime area too. So let’s move on.

      Outside the presence of the jury, defense counsel appropriately lodged an

objection to the court’s comment about the two FBI agents, saying, “[I]n my

opinion, the court made a statement to the effect that there is no issue regarding

whether or not the defendant crawled out the window.”


                                            3
                                     *   *    *

      THE COURT:                All right. Stop right there. That is just
                                wrong. The subject under discussion was the
                                bag, the fact that two officers saw the baggy
                                being thrown from the window. Had nothing
                                to do with whether or not your client was
                                attempting to climb from the window.

                                     *   *    *

      DEFENSE COUNSEL: If I am not wrong and a reasonable jury
                       could construe that your Honor has in fact
                       found it to be incredible that because these
                       two agents allegedly saw my client, that
                       would be in essence directing a verdict in
                       this case. And, secondly, it would really
                       subvert my credibility and relationship with
                       the jury because pretty much my opening
                       argument was that we are contesting that.

      Defense counsel requested that the court instruct the jury that the court was

not intending by its comments to “direct a verdict” against the defendant. The

defense also unsuccessfully moved for a mistrial. Afterward, the following

colloquy took place:

      THE COURT:                The issue had nothing to do with the client
                                climbing out of the window. It was all about
                                coffee grounds being found on that baggy, et
                                cetera, and I was asking whether or not you
                                were discounting the fact that two FBI
                                agents had testified to the fact that they saw
                                an arm come out of the window and the
                                baggy being thrown. The subject of the


                                         4
                      discussion was not whether or not your
                      client was trying to climb out of the
                      window. This was at the end of your very,
                      very, very long examination about the
                      presence of coffee grounds and whether or
                      not the smell of coffee grounds can still be
                      found on that evidence.

                      Now, with respect to your credibility. You also
                      made a promise to the jury in your opening
                      statement that apparently there is misconduct on
                      the part of the government’s agents or the
                      confidential informant who is purportedly a meth
                      addict and they have left him alone with meth and
                      that there is meth missing. All right. That is going
                      to be up to you to prove.

                      The court has said nothing with respect to giving
                      you a script to what your opening statement should
                      be so if you have made promises you can’t keep,
                      that is on you. Now, I wanted to give my reporter a
                      break. All right. And I want you to come back on
                      time.

DEFENSE COUNSEL: I mean I - -

THE COURT:            The Court is done.

DEFENSE COUNSEL: I think it is very disparaging to me.

THE COURT:            It is about to get disparaging to you.

DEFENSE COUNSEL: Right.

THE COURT:            I tried to give you a break. I really have. I
                      have had discussions with you in private. I
                      have not publicly criticized some of your


                               5
                                 performance, the written submissions, a lot
                                 of your arguments. I really tried to give you
                                 a break, . . . .

      When the jury returned, testimony resumed, with no limiting instruction

from the court.

      We agree with Espinoza that the court’s unwise statement was susceptible to

being taken by the jury as the court’s endorsement of the prosecution’s witnesses’

testimony as to when and how the bag got into the defendant’s backyard. Such an

endorsement undercut Espinoza’s defense as to count 4 that the FBI witnesses were

not to be believed.

      The court compounded its error by losing patience with counsel and refusing

to give a contemporaneous curative instruction as he requested.

      We do not take an error of this sort lightly. A trial court has a duty to refrain

during a jury trial from any conduct that might appear to favor one side or the

other. As explained by the Supreme Court 80 years ago,

      The influence of a trial judge on the jury is necessarily and properly of
      great weight and his lightest word or intimidation is received with
      deference and may prove controlling. This court has accordingly
      emphasized the duty of the trial judge to use great care that an
      expression of opinion upon the evidence should be so given as not to
      mislead, and especially that it should not be one-sided . . . .




                                          6
Quercia v. United States, 289 U.S. 466, 470 (1933) (internal quotation marks

omitted). After carefully scouring the record, however, we conclude with no doubt

that the evidence of Espinoza’s guilt was simply overwhelming. In the main, the

government’s audio recordings first of phone calls with Espinoza arranging the

methamphetamine deals and then of the deals themselves are compelling, both as

corroboration of the informant and as primary evidence of the defendant’s guilt of

counts 1, 2, and 3 in the indictment. The third transaction was attended not by the

informant alone, but also by an undercover agent posing as a potential

methamphetamine customer. Particularly damning was a discussion between the

agent and the defendant about conducting future methamphetamine deals.

      Moreover, the defendant’s use of transparently coded language in his

recorded discussions plus the presence of drug dealing paraphernalia in his home

(three digital scales and MSM, a cutting agent used with methamphetamine) sealed

his fate. Also, the testimony of his defense witness Stephanie Alvarado was

undercut by a surveillance video.

      Espinoza’s remaining pre-trial and trial claims involving (1) his motion to

recuse the prosecutor, and (2) the prosecutor’s alleged trial misconduct plainly

have no merit.

                                         II


                                          7
      As to Espinoza’s sentence, we find no error in the district court’s refusal to

grant to him the benefits either of acceptance of responsibility or a minor role in

the offenses. Also, the district court’s reference to gang websites -- to which no

objection was made -- does not appear to have affected Espinoza’s sentence. The

claim that the district court improperly took judicial notice of something is

unsupported by the record. In any event, Espinoza had been a gang member, a

status he did not deny. Finally, the court was correct in declining to conclude that

Espinoza’s criminal history was understated.

      The 300-month sentence chosen was, on the facts and circumstances,

substantively reasonable.

      AFFIRMED.




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