                                                                           FILED
                           NOT FOR PUBLICATION                              APR 11 2013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. 11-50262

              Plaintiff - Appellee,              D.C. No. 3:09-cr-00577-MMA-1

  v.
                                                 MEMORANDUM *
JESUS ALBINO NAVARRO-MONTES,

              Defendant - Appellant.



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

                      Argued and Submitted October 12, 2012
                               Pasadena, California

Before: WARDLAW and NGUYEN, Circuit Judges, and SIMON, District Judge.**

       Jesus Navarro-Montes appeals his conviction of second degree murder and

his sentence of life in prison. We have jurisdiction under 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.
       **
            The Honorable Michael H. Simon, District Judge for the U.S. District
Court for Oregon, sitting by designation.
       1. The district court did not abuse its discretion by excluding evidence that

Navarro-Montes pleaded guilty to a drug charge which arose from a different

incident than the charges for which he was tried. This is true even though the

district court admitted a cooperating witness’s guilty plea to drug smuggling

charges. That a cooperating witness entered into a plea agreement is generally

relevant to the witness’s credibility. See United States v. Universal Rehab.

Systems, 205 F.3d 657, 666 (1999). However, the rationale behind this general

rule does not extend to Navarro-Montes’s defense strategy of introducing his guilty

plea to a drug charge to bolster his innocence of the murder, for which he was

tried. Therefore, the court did not err in concluding that the guilty plea was

irrelevant.

       2. The district court did not plainly err by disallowing cross-examination

about the government’s failure to use “double-blind” protocols during the photo ID

lineups used to identify Navarro-Montes. Because defense counsel failed to make

an offer of proof, the “substance of the evidence was not made known to the court .

. . .” United States v. Bishop, 291 F.3d 1100, 1108 (9th Cir. 2002). Nor was the

substance of the evidence readily apparent to the district court. Id. Therefore our

review is for plain error, rather than under the less stringent abuse of discretion

standard. Id. While broad cross-examination of experts regarding eyewitness


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identification procedures is generally favored, given counsel’s failure to make an

offer of proof, the district court did not commit any error, much less error that was

plain, affected the outcome of the judicial proceedings, or “seriously affect[ed] the

fairness, integrity, or public reputation of judicial proceedings.” United States v.

Olano, 507 U.S. 725, 732 (2009) (internal quotation marks omitted).

      3. The record does not support Navarro-Montes’s contention that the district

court ruled against him by limiting the scope of his cross-examination of

Macedonio Guererro. Defense counsel himself represented to the court that he

would not go line by line through the sentencing memorandum, and the

prosecution and the court agreed to counsel’s approach. There is thus no “adverse

ruling” to review.1 See Rohauer v. Friedman, 306 F.2d 933 (9th Cir. 1963).

      4. The district court did not abuse its discretion by giving a curative

instruction, rather than declaring a mistrial, the day after Agent Rothrock



      1
        Navarro-Montes also asserted at oral argument that the district court abused
its discretion by concluding that the presentence report was cumulative. This
argument, however, was not raised in Navarro-Montes's opening brief, and the
government accordingly did not address it in its responding brief. But even
assuming the issue was properly raised before the Court, the district court did not
abuse its discretion in concluding that information contained in the presentence
report was cumulative to the prosecution's sentencing memorandum. Moreover,
because the court allowed Navarro-Montes to elicit the admission of Guererro's lies
during the safety valve debriefing, any error was harmless. See United States v.
Alvarez, 358 F.3d 1194, 1207–08 (9th Cir. 2004).

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improperly opined that there was no evidence of which he was aware that anybody

other than Navarro-Montes was the driver of the Hummer. See United States v.

Randall, 162 F.3d 557, 559-60 (9th Cir. 1998) (“Ordinarily, cautionary instructions

or other prompt and effective actions by the trial court are sufficient to cure the

effects of improper comments, because juries are presumed to follow such

cautionary instructions.”). Defense counsel objected on the grounds that Agent

Rothrock’s testimony went to the issue of guilt and was based on hearsay. The

trial court’s decision to issue a curative instruction rather than granting a mistrial in

response to these objections was not an abuse of discretion.

      Counsel failed to object on the ground that Rothrock’s testimony constituted

improper vouching, as he argues on appeal; nor did he object to the obvious defect

in the curative instruction itself: that the instruction did not admonish the jury to

disregard the improper testimony. Although Agent Rothrock’s testimony was

impermissible vouching because he indicated that “information not presented to the

jury supports a witness’s testimony,” United States v. Hermanek, 289 F.3d 1076,

1098 (9th Cir. 2002), and that the curative instruction was defective, on this record,

the district court did not commit plain error.

      5. Although the prosecution also improperly vouched in closing argument

we again review for plain error, because defense counsel failed to object. The


                                            4
prosecutor’s use of “we” in closing argument improperly associated him with the

investigatory team. See United States v. Hermanek, 289 F.3d at 1098–99.

However, in Hermanek, we found that similar vouching was not reversible error

under the less stringent “harmless error” standard. Id. at 1102. Considering the

overwhelming evidence that Navarro-Montes drove the Hummer that killed Agent

Aguilar, we conclude that the vouching in closing argument did not rise to the level

of plain error.

       6. Because Navarro-Montes did not object at trial to the failure of the jury

instructions to explain the difference between “reckless disregard for life,”

involuntary manslaughter, and “recklessly with extreme disregard for human life,”

second degree murder, we review for plain error. United States v. Lesina, 833 F.2d

156 (9th Cir. 1987), cited by Navarro-Montes, is distinguishable because there, the

instructions for involuntary manslaughter and second degree murder both listed

“reckless disregard for human life” as sufficient, so the jury was forced to “impose

guilt randomly rather than on the basis of a meaningful distinction between the

crimes.” Id. at 158–59. In addition, there, we reviewed the error under an abuse of

discretion standard, and here, we review for plain error. Moreover, the jury

instructions here, read together, correctly state the mens rea requirements for

second degree murder (malice aforethought) and involuntary manslaughter


                                          5
(reckless indifference to human life). The use of these jury instructions was

therefore not plain error.

      7. The use of the special verdict form was not plain error. We agree that the

form itself could have more clearly distinguished involuntary manslaughter and

second degree murder. However, read in combination with the jury instructions,

its use was not plainly erroneous.

      8. The district court did not clearly err in determining that Navarro-Montes

knew Agent Aguilar was a law enforcement officer and chose to run him down to

evade capture. See United States v. Rivera-Alonzo, 584 F.3d 829, 836 (9th Cir.

2009). The evidence demonstrated that Navarro-Montes could see Agent Aguilar

putting down a spike strip, made no effort to brake, and had previously run over a

spike strip, only to be captured by border patrol. Thus the district court did not

abuse its discretion in imposing the official victim enhancement.

      9. We find neither procedural error or substantive unreasonableness in the

district court’s calculation of the guideline range or imposition of a life sentence

after adequately considering the factors under 18 U.S.C. § 3553(a).

      AFFIRMED.




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