Flores-Perez

dissenting:

I respectfully dissent.

In her closing argument, the prosecutor told the jury that “when you retire to the jury room to deliberate, the presumption [of innocence] is gone. You are not only no longer obligated to presume innocence, but you are obligated to draw rational conclusions from the evidence.” This is egregious misconduct. 1 Ordinarily, it would be corrected because the judge would instruct the jury of the correct standard after the lawyers made their closing argument. In this case, the judge instructed the jury before closing argument, so there was no subsequent judicial correction.

In her rebuttal closing argument, the prosecutor told the jury that “there is a lengthy report which, according to the rules of evidence, you will not be seeing.” This is also egregious misconduct. “[S]uch comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant... .” 2 This case ultimately boiled down to a credibility determination — would the jury believe Flores-Perez or the Border Patrol agents. “‘[V]ouching is especially problematic in cases where the credibility of the witnesses is…

MEMORANDUM *

Flores-Perez appeals his conviction for attempting the transportation of illegal aliens in violation of 8 U.S.C. § 1324 (a)(l)(A)(ii). He asserts four grounds in support of his appeal.

Having reviewed the record in its entirety, we affirm both his judgment of conviction and sentence.

(1) Any difference between Flores-Perez’s indictment and the jury instructions did not affect his substantial rights. There is no possibility the jury convicted him for a mens rea or conduct insufficient to establish attempted alien transportation. See United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir.2003) (holding “a person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime”); 8 U.S.C. § 1324 (a)(l)(A)(ii) (providing attempted and completed transportation both require proof that defendant either knew or recklessly disregarded the fact that an alien was illegally present in the United States).

(2) The government’s evidence viewed in the light most favorable to the jury’s verdict was more than ample to support his conviction.

(3) The alleged prosecutorial misconduct, reviewed either individually or cumulatively for…