United States v. Francisco Gomez

MEMEORANDUM

Francisco Javier Gomez appeals his conviction for knowingly and intentionally importing more than 500 grams of a substance containing methamphetamine into the United States in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

The only issue for our review is whether the prosecutor misstated the evidence during closing argument so as to warrant reversal of Gomez’s conviction. We review this claim for plain error because Gomez did not object to the prosecutor’s statements at trial. United States v. Atcheson, 94 F.3d 1237, 1244 (9th Cir.1996).

We find that the prosecutor did misstate the evidence during closing argument. In a post-arrest interview, Gomez stated that the methamphetamine-filled food cans belonged to a woman who crossed the street in front of his car “at the first bridge, when you’re coming from the-from Zona Rio.” During closing argument, the prosecutor displayed photographs of the last bridge one would encounter traveling from Zona Rio to the Port of Entry, and argued that, because of the surrounding fencing depicted in the photographs, Gomez’s exchange with the woman could not have occurred. The…