                                                                           FILED
                      UNITED STATES COURT OF APPEALS                        FEB 15 2013

                                                                        MOLLY C. DWYER, CLERK
                             FOR THE NINTH CIRCUIT                       U .S. C O U R T OF APPE ALS




UNITED STATES OF AMERICA,                        No. 12-50088

               Plaintiff - Appellee,             D.C. No. 3:09-cr-04598-MMA-1
                                                 Southern District of California,
   v.                                            San Diego

FREDERICO ARMENGOR MORENO-
LOPEZ,                                           ORDER

               Defendant - Appellant.



Before: REINHARDT, WARDLAW, and PAEZ, Circuit Judges.

        The memorandum disposition filed on January 22, 2013 is hereby

AMENDED. The clerk shall file the attached amended memorandum disposition.

        With these amendments, Judges Wardlaw and Paez have voted to deny the

petition for panel rehearing, and Judge Reinhardt has voted to grant the petition.

        The petition for panel rehearing is DENIED. The time to file any further

petition for panel rehearing or rehearing en banc is extended to 14 days from the

date of this order.
                                                                                 FILED
                               NOT FOR PUBLICATION                                FEB 15 2013

                                                                           MOLLY C. DWYER, CLERK
                        UNITED STATES COURT OF APPEALS                         U .S. C O U R T OF APPE ALS




                               FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                            No. 12-50088

                 Plaintiff - Appellee,               D.C. No. 3:09-cr-04598-MMA-1

  v.
                                                     AMENDED MEMORANDUM *
FREDERICO ARMENGOR MORENO-
LOPEZ,

                 Defendant - Appellant.



                       Appeal from the United States District Court
                          for the Southern District of California
                       Michael M. Anello, District Judge, Presiding

                          Argued and Submitted January 10, 2013
                                   Pasadena, California

Before: REINHARDT, WARDLAW, and PAEZ, Circuit Judges.

       Federico Armengor Moreno-Lopez1 appeals his jury conviction for being a

previously deported alien found in the United States, in violation of 8 U.S.C. §

1326(a). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.


           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       1
           It appears that Moreno’s first name is misspelled in the caption.
       Even assuming that the prosecutor misstated the evidence in his closing

argument, we cannot say it is more probable than not that those misstatements

materially affected the fairness of the trial. See United States v. Hermanek, 289

F.3d 1076, 1102 (2002). Agent Garcia testified that border patrol agents located

footprints near the border, a border patrol camera surveillance team observed

Moreno in an area one mile north of the border, and Agent Garcia had to search for

Moreno within that area in order to find him. Thus, there was ample evidence that

Moreno was not under constant surveillance from the moment he crossed the

border. In light of the evidence and the minor nature of the prosecutor’s

misstatements, any error was not “so gross as probably to prejudice the defendant.”

United States v. Parker, 549 F.2d 1217, 1222 (9th Cir. 1977).

       Moreover, the jury was twice instructed that the attorneys’ statements and

arguments were not evidence. Since any misstatement of the evidence was minor,

this repeated, generalized instruction was sufficient to neutralize the error. See

United States v. Necoechea, 986 F.2d 1273, 1280 (9th Cir. 1993) (“Since the

vouching during opening statement was mild, this general instruction was

sufficient to cure the error.”).

       Therefore, Moreno’s conviction is AFFIRMED.




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