Emerson

MEMORANDUM **

John Emerson appeals his convictions for (1) aiding and abetting bringing an illegal alien into the country for financial gain, in violation of 8 U.S.C. § 1324 (a)(2)(B)(ii) and 18 U.S.C. § 2 ; and (2) bringing an illegal alien into the country without presentation to an immigration officer, in violation of 8 U.S.C. § 1324 (a)(2)(B)(iii). The facts are known to the parties and need not be repeated here.

Emerson challenges the district court’s denial of his motion for a mistrial on a claim of prosecutorial misconduct. In its closing argument, the government stated that Emerson “obtained a vehicle specifically designed for smuggling” and that “he was using it for smuggling.” Emerson argues that this statement, in conjunction with Treasury Enforcement Communication System (“TECS”) records introduced by the government in rebuttal, was designed to elicit prior bad act or propensity evidence. A defendant bears the burden of proving prosecutorial misconduct and reversal of a defendant’s conviction is warranted only “if it appears more probable than not that the alleged misconduct affected the jury’s verdict.” United States v. Daychild, 357 F.3d 1082, 1099 (9th Cir.2004)…