                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 19 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10367

              Plaintiff - Appellee,              D.C. No. 4:10-cr-00863-RCC-
                                                 CRP-1
  v.

FABIAN DAVID MONGE,                              MEMORANDUM*

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 13-10370

              Plaintiff - Appellee,              D.C. No. 4:10-cr-00863-RCC-
                                                 CRP-5
  v.

FRANK STEVE LOPEZ,

              Defendant - Appellant.


                  Appeal from the United States District Court
                           for the District of Arizona
                 Raner C. Collins, Chief District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                         Page 2 of 3
                            Submitted March 9, 2015**
                             San Francisco, California

Before: WALLACE, M. SMITH, and WATFORD, Circuit Judges.

      1. Defendants Fabian Monge and Frank Lopez contend federal prosecutors

violated the Jencks Act, 18 U.S.C. § 3500, by failing to produce the Sierra Vista

Police Department’s recording of Belen Romero’s interview. We need not resolve

that issue because we conclude that, even if we credit defendants’ argument, any

violation that occurred was harmless. Romero’s testimony had no impact on the

case against Lopez, whom she did not even mention. Her testimony equally

clearly had no effect on the first three counts of which Monge was convicted, as

those convictions rested primarily on the testimony of Monge’s other drivers. As

to count four (which charged Monge with possession with intent to distribute on

the day Romero was arrested with 272 pounds of marijuana), independent evidence

of Monge’s guilt—including the marijuana in the car, the route Romero drove, and

other drivers’ testimony that Romero worked for Monge—is strong enough to

sustain the conviction beyond a reasonable doubt. See United States v. Cardenas-

Mendoza, 579 F.3d 1024, 1032–33 (9th Cir. 2009).




        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                                                         Page 3 of 3
      2. Defendants also argue that the jury should have been instructed that it

could draw an adverse inference from the government’s failure to record a witness

interview. The district court properly rejected defendants’ proposed instruction as

having no legal basis, and instead allowed defendants to argue for an adverse

inference in closing arguments. Defendants cite no authority on appeal that calls

into question the district court’s ruling.

      3. Nothing in the prosecutor’s rebuttal argument warranted a mistrial. The

prosecutor’s allegations about the twin defendants and about reputation evidence

had nothing to do with Monge and Lopez. None of the prosecutor’s comments

about the defense’s case or the defense attorneys were impermissibly

inflammatory. The prosecution’s statement that witness Michael Kreyling “didn’t

lie” did not amount to a personal assurance of Kreyling’s credibility but instead

was a segue between a summary of Kreyling’s testimony and the evidence

corroborating it.

      4. Appellant Monge’s motion for resentencing is more appropriately

directed to the district court in the first instance. We therefore DENY the motion

without prejudice.

      AFFIRMED.
