United States v. Fernando Saldivar-Gadea

MEMORANDUM

Fernando Saldivar-Gadea appeals from his jury conviction of one count of conspiracy to transport illegal aliens and three counts of transporting aliens for profit. He contends that the district court erred in failing to grant a mistrial or a new trial because the prosecution improperly commented during its opening statement that one of his co-conspirators was a juvenile and that another co-conspirator had previously been convicted of alien smuggling. He also asserts that the trial court erred by allowing the admission of evidence that Saldivar-Gadea had been arrested on suspicion of alien smuggling four years prior to his arrest.

I. Prosecutorial Misconduct

An appellant must demonstrate misconduct and prejudice to establish prosecutorial misconduct. See United States v. Wright, 625 F.3d 583, 609-610 (9th Cir.2010). This means that the appellant must show that it is “more probable than not” that the prosecutor’s comments “affected the jury’s verdict....” United States v. Nobari, 574 F.3d 1065, 1082 (9th Cir.2009). Any potential prejudice caused by the prosecutor’s comments and ques tion was mitigated by the overwhelming evidence of Saldivar-Gadea’s guilt presented at…