Leon-Gonzalez
United States v. Leon-Gonzalez
Opinion
Lead Opinion
MEMORANDUM *
Defendant Julio Cesar Leon-Gonzalez appeals from his convictions for aiding and abetting the bringing in of illegal aliens for financial gain in violation of 8 U.S.C. § 1324 (a)(2)(B)(ii) and 18 U.S.C. § 2 , and transporting illegal aliens within the United States in violation of 8 U.S.C. § 1324 (a)(l)(A)(ii). We reverse. Because the parties are familiar with the factual and procedural history of this case, we will not recount it here.
I
Prosecutorial misconduct violates a defendant’s due process rights when it so infects the trial as to render the proceedings fundamentally unfair. Darden v. Wainwright, 477 U.S. 168, 181 , 106 S.Ct. 2464 , 91 L.Ed.2d 144 (1986); Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir.1995). After a careful review of the record, we *691 conclude that the improper argument made by the prosecutor requires reversal.
The most egregious comment by counsel was a suggestion to the jury that the jurors should draw an inference from the failure of the defense to call witness Gareia-Sanchez to testify because the defense knew he would not testify favorably. In relevant part, the argument and colloquy occurred as follows: