Okitsu
United States v. Okitsu
Opinion
Lead Opinion
MEMORANDUM **
Ronald Brian Okitsu appeals his conviction and sentence for bringing an alien into this country without presentation and for financial gain. See 8 U.S.C. § 1324 (a)(2)(B)(ii)-(iii); 18 U.S.C. § 2 . We affirm.
1. Okitsu claims that the whole indictment should fall because the Grand Jury was misinstrueted. But we have previously declared that the selfsame instructions were not unconstitutional. See United States v. Marcucci, 299 F.3d 1156, 1159, 1164 (9th Cir.2002); see also United States v. Cedano-Arellano, 332 F.3d 568, 573 (9th Cir.2003). This panel is in no position to reconsider that decision. See Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir.2001); Bell v. Hill, 190 F.3d 1089, 1092-93 (9th Cir.1999).
2. Okitsu also claims that the prosecutor’s argument regarding a lack of evidence to contradict that of the prosecution witnesses constituted misconduct. It did not. The argument did not call attention to OMtsu’s failure to testify or imply that the prosecution did not have the burden of persuasion. See United States v. Mares, 940 F.2d 455, 461 (9th Cir.1991); see also United States v. Cabrera, 201 F.3d 1243, 1246, 1249-50 (9th Cir.2000). It simply pointed up…