                                                                              FILED
                           NOT FOR PUBLICATION                                  SEP 04 2014

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



                           FOR THE NINTH CIRCUIT


DE EDWARD LESTER,                                No. 12-57035

              Petitioner - Appellant,            D.C. No. 2:11-cv-07247-MWF-OP

  v.
                                                 MEMORANDUM*
MAURICE JUNIOUS,

              Respondent - Appellee.


                  Appeal from the United States District Court
                      for the Central District of California
                 Michael W. Fitzgerald, District Judge, Presiding

                           Submitted August 25, 2014**
                              Pasadena, California

Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and RAKOFF,
Senior District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
      De Edward Lester appeals the district court’s order denying his petition for a

writ of habeas corpus.

      Lester contends that he should be granted habeas relief because illicitly-

attained incriminating statements were admitted at trial and caused actual

prejudice. Lester relies on Maine v. Moulton, 474 U.S. 159 (1985), which held that

“the Sixth Amendment is violated when the State obtains incriminating statements

by knowingly circumventing the accused’s right to have counsel present in a

confrontation between the accused and a state agent,” Id. at 176, and that such

“incriminating statements pertaining to pending charges are inadmissible at the

trial of those charges.” Id. at 180.

      Without deciding whether Moulton was violated, we conclude that Lester

has failed to show that the introduction of the statements had a “substantial and

injurious effect or influence in determining the jury’s verdict.” Moses v. Payne,

555 F.3d 742, 755 (9th Cir. 2009) (citing Brecht v. Abrahamson, 507 U.S. 619, 637

(1993)). The tainted evidence was merely “in effect, cumulative” of other

“weighty” evidence that indubitably influenced the jury. Brecht, 507 U.S. at 639;

see also Moses, 555 F.3d at 755 (holding that, in light of strong evidence of guilt,

tainted evidence was harmless under Brecht).

      AFFIRMED.


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