                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 07 2013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. 11-50289

              Plaintiff - Appellee,              D.C. No. 3:08-cr-02559-L-5

  v.
                                                 MEMORANDUM *
ROBERT EDWARD TORRES,

              Defendant - Appellant.



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

                      Argued and Submitted January 11, 2013
                               Pasadena, California

Before: O’SCANNLAIN and W. FLETCHER, Circuit Judges, and
KORMAN, Senior District Judge.**

       Robert Edward Torres appeals from a judgment convicting him of one count

of importation of marijuana and one count of possession of marijuana with intent to




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
distribute. Torres challenges his conviction on a number of grounds. Each is without

merit.

         First, Torres argues the evidence was insufficient to support the jury’s verdict.

This argument fails because the evidence was more than sufficient under the

applicable standard of review. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

         Second, Torres argues he was deprived of his right to a fair trial by the

admission of hearsay statements into evidence and that his trial counsel was

ineffective for failing to object thereto. The admission of these statements, even if

admitted in error, was not sufficiently prejudicial to satisfy the standard for plain

error, see United States v. Anekwu, 695 F.3d 967, 973 (9th Cir. 2012), or ineffective

assistance of counsel.

         Third, Torres argues his trial counsel were ineffective because they (1)

erroneously described Torres as closely acquainted with a co-defendant in the

defense’s opening statement, (2) failed to object to improper expert opinion testimony,

(3) failed to investigate and present exculpatory evidence, and (4) failed to object to

inadmissible hearsay statements, as addressed above. Torres does not argue that any

individual error constituted ineffective assistance. Instead, he argues the “cumulative

effect” of these alleged errors was “so great that it denied [him] the right to a fair

trial.” We disagree. The errors together do not satisfy the first prong of Strickland


                                             2
v. Washington, 466 U.S. 668, 688 (1984). More significantly, our review of the

record persuades us that there is not “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at

694.

       Fourth, Torres argues that the prosecutor misled the jury as to the sentence Scott

Wilske, an accomplice, faced in federal and state court.           He argues that the

prosecutor’s leading question, which suggested that Wilske pled guilty “in exchange

for an eight-year [federal] sentence,” was misleading. Further, Torres argues that

Wilske did not testify truthfully with respect to a sentence he faced in state court for

a violation of probation and that the prosecutor withheld information in her possession

that would have permitted defense counsel to impeach Wilske’s credibility. See

Giglio v. United States, 405 U.S. 150 (1972). The record is not sufficiently developed

to permit us to resolve these issues on direct appeal. Thus, while we affirm the

judgment of conviction, we do so without prejudice to the filing of a motion pursuant

to 28 U.S.C. § 2255.

       AFFIRMED.1




       1
              The unopposed motion of the United States Attorney for judicial
notice of certified transcripts of state court hearings relating to a probation
violation by Scott Wilske is granted.

                                            3
