Alvarado

MEMORANDUM *

Jose Noel Alvarado appeals his jury conviction and sentence for importation of marijuana in violation of 21 U.S.C. §§ 952 , 960, and possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841 (a)(1). Alvarado asserts that the government engaged in prosecutorial misconduct and that the district court committed several prejudicial errors during trial. “In some cases, although no single trial error examined in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors may still prejudice a defendant.” United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996). Here, we find that the cumulative effect of the errors was prejudicial. Accordingly, we reverse.

Alvarado contends that the district court erred in denying his motion to sup *687 press statements made to U.S. Immigration and Customs Enforcement agents when he claimed to have requested an attorney. The district court held an evidentiary hearing on whether Alvarado had waived his rights under Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), and made a factual finding that Alvarado had knowingly and voluntarily waived his…

dissenting:

I respectfully dissent from the majority’s holding reversing the district court. There was only one error that occurred in this case, and it was harmless.

I.

The district court did not err by allowing the government to solicit the agent’s opinion regarding the credibility and guilt of Alvarado. Though the questioning may have elicited improper expert testimony, the subject matter of the questioning was relevant to issues the defense had raised in opening argument: that the agents called Alvarado a liar to bully him into confessing. The defense “opened the door” to the question of whether and why government agents said they did not believe Alvarado, and so it was not improper for the court to allow rebuttal testimony. United States v. Beck, 418 F.3d 1008, 1016 (9th Cir.2005).

Although the agent in this case may have presented opinions on habit and behavior, and as such should have been properly qualified “as having the knowledge, experience, training, or education” to serve as an expert witness, United States v. Figueroa-Lopez, 125 F.3d 1241, 1245 , any error was harmless. Even though the agent was not subjected to formal qualifying procedures, he did, in fact, have…