                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             APR 13 2015

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

UNITED STATES OF AMERICA,                        No. 13-50405

              Plaintiff - Appellee,              D.C. No. 3:12-cr-05132-JLS-1

  v.
                                                 MEMORANDUM*
JORGE FRANCISCO BRAVO-ROSAS,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                   Janis L. Sammartino, District Judge, Presiding

                        Argued and Submitted April 6, 2015
                               Pasadena, California

Before: SILVERMAN and BEA, Circuit Judges and DONATO,** District Judge.

       Jorge Francisco Bravo-Rosas appeals his conviction for illegal reentry after

removal in violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C.

§ 1291.


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James Donato, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
                                             I.

       To convict a defendant of “illegal reentry under 8 U.S.C. § 1326, the

Government must establish that the defendant ‘left the United States under order of

exclusion, deportation, or removal, and then illegally reentered.’” United States v.

Raya-Vaca, 771 F.3d 1195, 1201 (9th Cir. 2014) (quoting United States v.

Barajas–Alvarado, 655 F.3d 1077, 1079 (9th Cir. 2011)). Bravo filed a motion to

dismiss the indictment to challenge the validity of the expedited removal order that

served as the basis for his conviction, as was his right under the Fifth Amendment.

See United States v. Ubaldo-Figueroa, 364 F.3d 1042, 1047 (9th Cir. 2004). We

review “a denial of a motion to dismiss an 8 U.S.C. § 1326 indictment de novo

when the motion is based upon . . . alleged due process defect[s] in the underlying

deportation proceeding.” Raya-Vaca, 771 F.3d at 1201 (9th Cir. 2014) (quoting

United States v. Camacho–Lopez, 450 F.3d 928, 929 (9th Cir. 2006)). We review

for clear error the district court’s findings of fact. Id.

       The district court applied the framework we articulated in Barajas-Alvarado

to find the alleged due process violations during Bravo’s expedited removal did not

prejudice Bravo. We have since refined that framework in Raya-Vaca. Because

the district court did not have the benefit of our opinion in Raya-Vaca, we vacate

its decision to deny Bravo’s motion to dismiss and remand for the district court to


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reevaluate, in light of Raya-Vaca, whether Bravo’s due process rights were

violated and whether he suffered prejudice as a result of the alleged violations. We

leave it to the district court to decide whether the parties should supplement the

evidentiary record before the district court makes its decision.

                                           II.

      None of Bravo’s alleged trial errors warrant reversal of Bravo’s conviction.

First, the district court did permit Officer Valdes to testify in violation of the

sequestration order. But “[a] witness is not [automatically] disqualified merely

because he remains in the courtroom after a sequestration order.” United States v.

English, 92 F.3d 909, 913 (9th Cir. 1996) (citation omitted). Disqualification is

“strongly disfavored.” Id. The prosecutor was unaware of Bravo’s “official

restraint” defense until after the prosecutor excused Officer Valdes. As a result,

there was “no indication the prosecution intended to violate the court’s order.” Id.

The district court therefore did not abuse its discretion. Id.

      Second, the district court correctly instructed the jury on Bravo’s “official

restraint” defense. For a defendant to be entitled to a jury instruction, his proposed

instruction must have a “basis in fact and law.” United States v. Romm, 455 F.3d

990, 1002 (9th Cir. 2006). To that end, we have held that “those who evade

government observation while crossing the border are deemed to be free from


                                            3
official restraint, regardless of the distance they travel between entry and arrest.”

United States v. Cruz-Escoto, 476 F.3d 1081, 1085–86 (9th Cir. 2007) (some

emphasis in original). Bravo’s proposed jury instruction asked the jury to

consider, among other factors, “the distance he may have traveled into the United

States” and “the amount of time he may have been physically present in the United

States prior to apprehension.” The instruction therefore did not have a “basis in

law.”

        Third, the prosecutor did not improperly vouch for Officer Valdes during

closing argument because the prosecutor did not “place[] the prestige of the

government behind [Valdes] by providing personal assurances of” Valdes’s

testimony or suggest that Valdes’s testimony was “supported by information

outside that presented to the jury.” United States v. Wright, 625 F.3d 583, 610 (9th

Cir. 2010) (citation omitted). Further, the prosecutor could suggest Bravo’s

testimony was not credible because it was “reasonable to infer, and hence to argue,

that one of the two sides [was] lying.” United States v. Ruiz, 710 F.3d 1077, 1083

(9th Cir. 2013); see also United States v. Molina, 934 F.2d 1440, 1445 (9th Cir.

1991) (same).

        Fourth, the prosecutor’s statement during closing argument that Castro “was

hiding in that brush because he was a convicted felon” does not warrant reversal


                                          4
even if defense counsel properly objected below. See United States v. Vaandering,

50 F.3d 696, 701 (9th Cir. 1995). Though the government conceded the statement

was improper at oral argument, “[e]stablishing . . . prosecutorial misconduct is not

in and of itself sufficient to merit reversal of a conviction.” United States v. Berry,

683 F.3d 1015, 1024 (9th Cir. 2012) (citation omitted). “[I]mproprieties in

counsel’s arguments to the jury do not constitute reversible error unless they are so

gross as probably to prejudice the defendant, and the prejudice has not been

neutralized by the trial judge.” Id. (citation omitted). The jury already knew of

Bravo’s conviction because the district court authorized the prosecution to use the

conviction for impeachment purposes. And the prosecutor repeatedly referenced

the conviction for that purpose during closing argument. The prosecutor’s single

improper reference to the conviction as Bravo’s motive for evading immigration

officials was not “so gross as probably to prejudice” Bravo. Id. Further, the

district court’s instruction to the jury that it could consider the conviction “only as

it may affect the defendant’s believability as a witness” neutralized any alleged

prejudice. United States v. Lopez-Alvarez, 970 F.2d 583, 598 (9th Cir. 1992).

VACATED AND REMANDED.




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