NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT FEB 18 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 13-50152

Plaintiff - Appellee, D.C. No. 3:11-cr-03639-AJB-1

v.

MEMORANDUM*

JONATHAN CRUZ,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding

Argued and Submitted November 17, 2014 Pasadena, California

Before: SCHROEDER, PREGERSON, and NGUYEN, Circuit Judges.

Jonathan Cruz (“Cruz”) was found guilty of importing 9.84 kilograms of

marijuana and 4.50 kilograms of methamphetamine, in violation of 21 U.S.C.

§§ 952 and 960, and sentenced to the mandatory minimum sentence of ten years.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 Cruz appeals his conviction and sentence. We have jurisdiction under 28 U.S.C.

§ 1291. Because we reverse Cruz’s conviction for prosecutorial misconduct, we do

not reach his other issues.

We review prosecutorial misconduct claims for plain error where defense

counsel failed to object before the district court. United States v. Reyes, 660 F.3d

454, 461 (9th Cir. 2011). Under plain error review, we will reverse Cruz’s

conviction only if the prosecutor’s statements were improper and the statements

resulted in substantial prejudice. United States v Sanchez, 659 F.3d 1252, 1256

(9th Cir. 2011).

In rebuttal, the prosecutor argued “[Cruz] is guilty of what he is charged

with. Find him guilty and do the right thing and make him finally take

responsibility for what he did.” By stating “do the right thing” the prosecutor

improperly expressed his personal opinion to the jury. See United States v. McKoy,

771 F.2d 1207, 1210-11 (9th Cir. 1985). Without reference to the evidence or the

burden of proof, the “do the right thing” statement improperly urged the jury to

convict on the basis of the prosecutor’s subjective belief of what was “right,” as

opposed to the persuasive force of the evidence. See Sanchez, 659 F.3d at 1257

(holding prosecutor’s statement to the jury to “send a memo to all drug traffickers”

was improper because it urged the jury to convict for reasons wholly irrelevant to

2 the defendant’s guilt or innocence); United States v. Sanchez, 176 F.3d 1214,

1224-25 (9th Cir. 1999) (holding prosecutor’s statement to the jury that it was its

duty to find defendant guilty was improper because “the prosecutor did not tell the

jury that it had a duty to find the defendant guilty only if every element of the

crime had been proven beyond a reasonable doubt.”).

The prosecutor’s “do the right thing” statement was prejudicial to Cruz for

several reasons. First, because the prosecutor is the sovereign’s representative, the

jury may have been misled into thinking his “do the right thing” statement was

validated by the government. See United States v. Kerr, 981 F.2d 1050, 1053 (9th

Cir. 1992) (“A prosecutor has no business telling the jury his individual

impressions of the evidence. Because he is the sovereign's representative, the jury

may be misled into thinking his conclusions have been validated by the

government's investigatory apparatus.”). Second, the court did not give a curative

instruction. See Sanchez, 659 F.3d at 1258. Third, the prosecutor’s rebuttal

argument was the last thing the jury heard before beginning deliberation; this

timing increased the risk that the prosecutor’s improper statement influenced the

jurors. Id. at 1261. We reverse Cruz’s convictions and remand for a new trial.

REVERSED and REMANDED.

3

FILED

United States v. Cruz, No. 13-50152 FEB 18 2015

MOLLY C. DWYER, CLERK

NGUYEN, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS

I agree that the prosecutor’s “do the right thing” statement clearly constitutes

prosecutorial misconduct. However, under plain error review, we may only

reverse when “prosecutorial misconduct has deprived a defendant of a fair trial,”

which we determine by “look[ing] to the substance of any curative instructions and

the strength of the case against the defendant absent the misconduct.” United

States v. Sanchez, 659 F.3d 1252, 1257 (9th Cir. 2011).

Here, the evidence against Cruz was overwhelming—he was caught red-

handed with the drugs in his car and confessed that he agreed to smuggle the drugs

for money. The single instance of argument error during the government’s rebuttal

did not affect Cruz’s substantial rights. Nevertheless, I am troubled by the

government's failure to recognize the error, particularly because the same office

that prosecuted Cruz recently assured us that its training would “reinforce the

principle that all Assistant U.S. Attorneys must be aware of the rules pertaining to

closing argument and must make every effort to stay well within those rules.”

United States v. Maloney, 755 F.3d 1044, 1046 (9th Cir. 2014) (en banc).

Although the trial in this case occurred before Maloney was decided, the

government, post-Maloney, insisted at oral argument that its statement was proper.

1 It was not. As the majority stated, a prosecutor steps outside of his or her proper

role by encouraging the jury to “do the right thing.”

However, there’s no basis for reversal, not on this or the three other claims

that Cruz also raised on appeal. I therefore would affirm.

2