                                                                              FILED
                      UNITED STATES COURT OF APPEALS
                                                                              NOV 29 2018
                            FOR THE NINTH CIRCUIT                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS




UNITED STATES OF AMERICA,                        No.   17-30129

              Plaintiff-Appellee,                D.C. No.
                                                 2:16-cr-00113-JLR-1
 v.                                              Western District of Washington,
                                                 Seattle
SANTOS PETER MURILLO, AKA Peter
Santos Murillo,
                                                 ORDER
              Defendant-Appellant.


Before: FERNANDEZ, N.R. SMITH, and CHRISTEN, Circuit Judges.

      The memorandum disposition filed on October 23, 2018 is amended by the

disposition filed concurrently with this order. With this amendment, the panel

unanimously votes to deny Appellant’s petition for panel rehearing. Judge

Christen has voted to deny Appellant’s petition for rehearing en banc, and Judges

Fernandez and N.R. Smith have so recommended.

      The full court has been advised of Appellants’ petition for rehearing en banc,

and no judge of the court has requested a vote on the petition for rehearing en banc.

Fed. R. App. P. 35.

      The petition for rehearing and the petition for rehearing en banc are

DENIED. No further petitions for rehearing may be filed.
                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            NOV 29 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-30129

              Plaintiff-Appellee,                D.C. No.
                                                 2:16-cr-00113-JLR-1
 v.
                                                 AMENDED
SANTOS PETER MURILLO, AKA Peter                  MEMORANDUM*
Santos Murillo,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Western District of Washington
                     James L. Robart, District Judge, Presiding

                      Argued and Submitted October 10, 2018
                               Seattle, Washington

Before: FERNANDEZ, N.R. SMITH, and CHRISTEN, Circuit Judges.

      Santos Peter Murillo appeals his convictions for prohibited possession of a

firearm, possession of methamphetamine and heroin with intent to distribute, and

possession of a firearm in furtherance of drug trafficking. 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 Ninth Circuit Rule 36-3.
      1. Murillo contends that the district court violated his Sixth Amendment

right to a public trial when it heard his Batson challenge out of public view in a

small room adjoining the courtroom.1 Murillo did not raise this objection in the

district court, so we review for plain error. United States v. Rivera, 682 F.3d 1223,

1232 (9th Cir. 2012). Assuming without deciding that the public trial right

attaches to a Batson hearing, see Presely v. Georgia, 558 U.S. 209, 213 (2010) (per

curiam) (holding that the Sixth Amendment applies to jury selection), we conclude

that the closure that occurred here concerned a brief, non-public hearing related to

juror selection. Such closures are “trivial” for purposes of the Sixth Amendment,

and do not implicate the public trial right. See United States v. Ivestor, 316 F.3d

955, 959–60 (9th Cir. 2003). This is especially so when, as here, the hearing is

short, conducted in the presence of all parties, and a contemporaneous record is

made of the proceedings. See United States v. Sherlock, 962 F.2d 1349, 1358 (9th

Cir. 1989). We do not discern any error in the district court’s handling of

Murillo’s Batson challenge on this record.

      2. Murillo challenges the district court’s decision to allow expert opinion

testimony from a law enforcement witness specializing in narcotics trafficking



      1
             Because the parties are familiar with the facts, we recite only those
necessary to resolve Murillo’s appeal.
                                           2
investigations. We review challenges to properly preserved evidentiary rulings for

an abuse of discretion. United States v. Waters, 627 F.3d 345, 351–52 (9th Cir.

2010). “Federal courts uniformly hold . . . that government agents or similar

persons may testify as to the general practices of criminals to establish the

defendants’ modus operandi.” United States v. Johnson, 735 F.2d 1200, 1202 (9th

Cir. 1984) (collecting cases). The district court did not abuse its discretion in

admitting the challenged testimony.

      3. Murillo suggests that several relatively recent Supreme Court cases are

incompatible with existing Ninth Circuit precedent upholding mandatory minimum

sentences under the Armed Career Criminal Act against Eighth Amendment

challenges. However, each of the Supreme Court cases he presents are categorical

rulings invalidating a specific type of sentence applied to the entire class of

juvenile defendants. See, e.g., Miller v. Alabama, 567 U.S. 460 (2012) (holding

that mandatory life sentences for juvenile offenders categorically violate the Eighth

Amendment). Indeed, the Supreme Court has gone out of its way to distinguish as

applied challenges to statutory mandatory minimum sentences within the line of

cases Murillo suggests overrule our circuit law. See Graham v. Florida, 560 U.S.

48, 61–62 (2010) (distinguishing Harmelin v. Michigan, 501 U.S. 957 (1991) and

Ewing v. California, 528 U.S. 11 (2003)). We are not persuaded, therefore, that


                                           3
intervening Supreme Court authority requires us to revisit our established law in

this area. See United States v. Harris, 154 F.3d 1082, 1084 (9th Cir. 1998)

(rejecting as-applied challenge to a 95-year § 924(c) sentence); see also United

States v. Major, 676 F.3d 803, 812 (9th Cir. 2012) (declining to revisit Harris).

      4. The district court admitted nineteen identity cards seized from the vehicle

Murillo was driving prior to his arrest. Murillo argues that this evidence was

improperly admitted. We disagree. “Evidence of assumption of a false name

following the commission of a crime is relevant as an admission ‘by conduct,

constituting circumstantial evidence of consciousness of guilt and hence of the fact

of guilt itself.’” United States v. Guerrero, 756 F.2d 1342, 1347 (9th Cir. 1984)

(quoting McCormick on Evidence § 271 (2d ed. 1972)). The district court did not

abuse its discretion by admitting the identification cards.

      5. Prior to trial, Murillo moved to suppress all evidence obtained as a result

of a warrantless search of the borrowed vehicle he was driving. An officer who “is

not searching for evidence against the accused, but nonetheless inadvertently

comes across an incriminating object” may seize it, so long as the object’s

incriminating nature is “immediately apparent.” Coolidge v. New Hampshire, 403

U.S. 443, 465–66 (1971). In this case, the officer was securing the vehicle so that

it could be towed to an impound lot, when he observed the back half of a firearm


                                           4
he immediately recognized as a MAC-10. The officer, who had military training in

firearms recognition, also knew that Murillo was wanted on an arrest warrant.

There was thus “[a] practical, nontechnical probability that incriminating evidence

[was] involved[,]” United States v. Stafford, 416 F.3d 1068, 1076 (9th Cir. 2005)

(quoting Texas v. Brown, 460 U.S. 730, 742 (1983)), and because the officer was

not performing an otherwise unlawful search, the firearm was properly seized

under the plain view doctrine. The district court did not err by denying Murillo’s

motion to suppress.

      6. Murillo asserts that the government failed to produce sufficient evidence

of his intent to distribute the drugs found in his possession. “A jury may infer the

intent to distribute a controlled substance from quantity alone. . . . Moreover, ‘[i]t

may reasonably be inferred that an armed possessor of drugs has something more

in mind than mere personal use.’” United States v. Innie, 7 F.3d 840, 844 (9th Cir.

1993) (alteration in original) (quoting United States v. Tarazon, 989 F.2d 1045,

1053 (9th Cir. 1993)). The government proffered competent evidence that the

quantity of drugs seized from the vehicle Murillo was driving was consistent with

distribution, that the drugs had significant street value, and that Murillo was armed.

This evidence was sufficient to permit a rational jury to conclude he intended to

distribute. Similarly, “the proximity, accessibility, and strategic location of the


                                           5
firearms in relation to the locus of the drug activities” was sufficient for a rational

jury to conclude the firearms were used in furtherance of drug trafficking. United

States v. Thongsy, 577 F.3d 1036, 1041–42 (9th Cir. 2009) (quoting United States

v. Hector, 474 F.3d 1150, 1157 (9th Cir. 2007)).

       7. Finally, Murillo argues that his jury-trial waiver as to Count 1 of the

indictment, prohibited possession of a firearm by a convicted felon, was defective.

We review this claim de novo. United States v. Laney, 881 F.3d 1100, 1106 (9th

Cir. 2018). Our circuit precedent establishes that a stipulation of facts “fulfils the

letter of [Rule 23] by providing written evidence of [the defendant’s] intent [to

waive his right to a jury trial].” Pool v. United States, 344 F.2d 943, 944 (9th Cir.

1965). Faithful application of this rule compels the conclusion that Murillo’s

stipulation to all facts necessary for conviction on Count 1 was a sufficient waiver

of his right to a trial by jury.

       AFFIRMED.




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