United States v. Jonathan Cruz

concurring in part and dissenting in part:

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, *625 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)…

MEMORANDUM *

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. Cruz appeals his *624 conviction and sentence. We have jurisdiction under 28 U.S.C. § 1291 . Because we reverse Cruz’s conviction for prosecuto-rial 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…

NOT FOR PUBLICATION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-

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…