                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUL 23 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-50221

              Plaintiff-Appellee,                D.C. No.
                                                 3:16-cr-01727-WQH-1
 v.

JORGE CORDOVA-VILLA, AKA Jorge                   MEMORANDUM*
Cardova Villa, AKA Jorge Cardova-Villa,
AKA Jorge Cordova Villasana,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

UNITED STATES OF AMERICA,                        No.   17-50222

              Plaintiff-Appellee,                D.C. No. 3:12-cr-02267-W-1

 v.

JORGE CORDOVA-VILLA, AKA Jorge
Cardova Villa, AKA Jorge Cardova-Villa,
AKA Jorge Cordova Villasana,

              Defendant-Appellant.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                    Appeal from the United States District Court
                      for the Southern District of California
                    Thomas J. Whelan, District Judge, Presiding

                         Argued and Submitted July 12, 2018
                                Pasadena, California

Before: BERZON, FISHER,** and WATFORD, Circuit Judges.

      Jorge Cordova-Villa appeals his conviction for illegal attempted entry and

reentry, and the subsequent revocation of supervised release based on that

conviction. We affirm.

      1.     Cordova challenges the district court’s refusal to give a missing-

witness instruction for the individuals who were arrested with Cordova and

removed before trial. We review the district court’s decision for an abuse of

discretion. United States v. Bramble, 680 F.2d 590, 592 (9th Cir. 1982).

      The district court did not require a showing of bad faith by the government

for the missing-witness instruction, which would have been the incorrect legal

standard. The failure of the district court to articulate the two-part test from United

States v. Leal-Del Carmen, 697 F.3d 964, 974–75 (9th Cir. 2012), was not itself an

abuse of discretion. See United States. v. Ramirez, 714 F.3d 1134, 1137 (9th Cir.

      **
            The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
                                           2
2013) (“While the judge didn’t articulate the two-part test . . . , his comments make

it clear that he identified and applied the correct rule.”). And the district court’s

ultimate conclusion was that it was entirely “speculative” whether the removed

individuals would give exculpatory evidence, so any inference that they would was

not appropriate. The district court did not rest its decision on a lack of bad faith by

the government.

      2.     A missing-witness instruction is warranted only if “an inference of

unfavorable testimony [against the nonmoving party] from an absent witness is a

natural and reasonable one.” Id. (alteration in original) (quoting Leal-Del Carmen,

697 F.3d at 974–75). Here, Cordova offered nothing more than conjecture to

establish that an inference of unfavorable testimony against the government would

be “natural and reasonable.” Leal-Del Carmen, 697 F.3d at 974. He brought

forward no specific basis for supposing that any of the removed witnesses could

have offered exculpatory evidence, given the limited factual disputes that divided

the parties, and Cordova’s testimony that he did not tell his fellow travelers his

purpose in crossing the border. Contrary to Cordova’s assertion, the government’s

failure to call a witness does not alone give rise to that inference. See Ramirez, 714

F.3d at 1137 (“[A] party may choose not to present an available favorable witness

for a variety of reasons.”). On the limited showing Cordova provided, the district


                                            3
court did not abuse its discretion by rejecting Cordova’s requested missing-witness

instruction.

      3.       The government did not make a statement during closing argument

negating the specific intent element of both charged offenses. The district court’s

refusal to issue a curative instruction and denial of Cordova’s motion for a mistrial

are reviewed for an abuse of discretion. United States v. Reyes, 660 F.3d 454, 461

(9th Cir. 2011). “[I]n analyzing the effect of a [prosecutor’s] comment upon the

jury we accord due respect to the common sense of jurors.” United States v. Koon,

34 F.3d 1416, 1443 (9th Cir. 1994), aff’d in part, rev’d in part on other grounds,

518 U.S. 81 (1996). Thus, “[a] court should not lightly infer that a prosecutor

intends an ambiguous remark to have its most damaging meaning or that a jury,

sitting through a lengthy exhortation, will draw that meaning from the plethora of

less damaging interpretations.” Id. (quoting Donnelly v. DeChristoforo, 416 U.S.

637, 647 (1974)). Given that the central focus of the trial was whether Cordova had

the requisite specific intent, it is implausible that the jury would have interpreted

the government’s statement to negate that specific intent element. The district court

therefore did not abuse its discretion in declining to issue a curative instruction and

denying Cordova’s motion for a mistrial.

      AFFIRMED.


                                           4
