UNITED STATES of America, Plaintiff-Appellee, v. Jose MERAZ-OLIVERA, Defendant-Appellant.
No. 10-50533.
United States Court of Appeals, Ninth Circuit.
March 28, 2012.
471 Fed. Appx. 610
Argued and Submitted Feb. 6, 2012.
Boskovic contends that the statement was improper because the government had introduced “irrelevant and prejudicial information about war crimes” during the trial, and this final analogy left the jury with the idea that a parallel existed between Boskovic and the Son of Sam, not just concerning the character witnesses, but also concerning mass murder. The government responds that the statement was permissible because the prosecutor stated, “I‘m not drawing any analogy between the defendant and the Son of Sam.” We disagree. The prosecutor‘s “disclaimer” was disingenuous. The choice of a mass murderer‘s case appears calculated to raise the war crimes specter in the jury‘s mind, even though Boskovic was not charged with any war crimes. At best, the analogy was gratuitous, ill-considered and inflammatory. In a case that turned on the defendant‘s character and credibility, the analogy, invoked at the end of the government‘s closing argument, appears likely “designed to appeal to the passions, fears and vulnerabilities of the jury,” which we have “consistently cautioned against.” Weatherspoon, 410 F.3d at 1149. That said, given the curative instructions that followed, and the strength of the government‘s case otherwise, we cannot say this one ill-chosen argument was sufficient to “affect[] substantial rights” or result in a “miscarriage of justice.” Accordingly, there was no plain error. Doss, 630 F.3d at 1193.
The prosecutor also evoked the reputation of the United States refugee program when asking the jury to return a guilty verdict. It is impermissible for “[a] prosecutor [to] urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future law-breaking.... Jurors may be persuaded by such appeals to believe that, by convicting a defendant, they will assist in the solution of some pressing social problem.” Weatherspoon, 410 F.3d at 1149 (quoting United States v. Koon, 34 F.3d 1416, 1443 (9th Cir.1994)) (internal quotation marks omitted). Even if the remarks were improper, however, we conclude that they did not constitute plain error warranting reversal.
AFFIRMED.
Bruce R. Castetter, Assistant U.S., Aaron B. Clark, Assistant U.S., Office of the U.S. Attorney, San Diego, CA, for Plaintiff-Appellee.
Amy Frances Kimpel, Zandra Luz Lopez, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant.
Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.
Jose Meraz-Olivera appeals his jury conviction on a one count indictment for violating
- The district court did not err in denying Meraz-Olivera‘s motion to dismiss the indictment as improperly predicated on the August 2000 expedited removal order. We have jurisdiction to resolve his collateral challenge to that order because “there must be some meaningful review” of that administrative action where, as here, it plays “a critical role in the subsequent imposition of a criminal sanction.” United States v. Mendoza-Lopez, 481 U.S. 828, 837, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). Meraz-Olivera “can succeed in this collateral challenge only if he is able to demonstrate that: (1) his due process rights were violated by defects in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects.” United States v. Garcia-Martinez, 228 F.3d 956, 960 (9th Cir.2000) (quotation omitted). Neither element is satisfied here.
Meraz-Olivera was not denied due process by the immigration officer‘s failure to inform him that he had the right to withdraw the application for admission “in the discretion of the Attorney General.”
Meraz-Olivera suffered no prejudice because he had no plausible grounds for relief. See Barajas-Alvarado, 655 F.3d at 1089 (“Where the relevant form of relief is discretionary, the alien must make a plausible showing that the facts presented would cause the Attorney General to exercise discretion in his favor.“) (quotation omitted). Meraz-Olivera falsely claimed that he was a United States citizen to the primary immigration officer. During a secondary inspection, he admitted that he had lied and that he knew that his actions were illegal. An alien who attempts to enter the United States by fraudulent means is ineligible for withdrawal under
- Nor did the district court err by giving the Ninth Circuit model jury instruction on reasonable doubt. See United States v. Velasquez, 980 F.2d 1275, 1278 (9th Cir.1992) (reviewing reasonable doubt instruction de novo). We reject Meraz-Olivera‘s arguments that the model instruction: (1) improperly forecloses speculation as a basis for having a reasonable doubt; (2) fails to direct jurors that proof beyond a reasonable doubt cannot be based on speculation; and (3) misstates the presumption of innocence because it instructs that reasonable doubt “may arise,” from the evidence. The model instruction correctly states the law, and does not “detract from the heavy burden suggested by the term ‘reasonable doubt’ standing alone.” Id.
AFFIRMED.
REINHARDT, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority that the district court did not err in instructing the jury on reasonable doubt. I disagree, however, with the majority‘s resolution of Meraz‘s due process claim. The Due Process Clause required that Meraz be notified of the opportunity to ask to withdraw his application for admission, and Meraz was prejudiced by the deprivation of that right. His conviction should be reversed.
The majority subverts the essential requirement of constitutional due process in denying Meraz‘s claim because he “received all of the process required under
Had the majority properly conducted the due process analysis that it chose to bypass, it would have concluded that Meraz was entitled to be informed that he had the right to ask to withdraw his application for admission. We have held that aliens have a due process right to be apprised of all forms of relief for which they might reasonably be eligible. See United States v. Melendez-Castro, 671 F.3d 950, 953-54 (9th Cir.2012); United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir.2000). Moreover, all three factors of the due process standard of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), weigh in Meraz‘s favor: an alien‘s interest in being allowed to withdraw his application is immense, the failure to inform an alien of the right to seek withdrawal poses an unacceptably high risk that the alien will be denied a benefit that he would receive if he were to ask for it, and the administrative burden of requiring such disclosure is minimal. See id. at 335, 96 S.Ct. 893.
I also disagree with the majority‘s conclusion that Meraz was not prejudiced by the failure to inform him of his right to seek withdrawal of his application. “An alien seeking to prove prejudice need not establish that he definitely would have received immigration relief, but only that he had ‘plausible grounds’ for receiving such relief.” Barajas-Alvarado, 655 F.3d at 1089. In light of the agency‘s criteria for allowing the withdrawal of an application for admission, and in light of the fact that withdrawal is offered to an overwhelming proportion of aliens who would otherwise be removed on an expedited basis, Meraz might well have been permitted to withdraw his application had he asked to do so. See Insp. Field Manual 17.2(a), available at FIM-INSFMAN 17.2 on Westlaw; U.S. Dep‘t of Homeland Security, Office of Immigration Statistics, Immigration Enforcement Actions: 2004 Annual Report 6 (2005) (“Approximately 184,000 foreign national[s] were determined to be inadmissible in 2004 for reasons that made them subject to expedited removal. However, 129,000 of those aliens were allowed to withdraw their application for admission.“). Meraz presented no false documents to immigration officers, he had never previously been removed, and he has three U.S. citizen children. Although an alien who has committed “obvious, deliberate fraud” (such as the use of “counterfeit or fraudulent documents“) may not “ordinarily” be allowed to withdraw his application for admission, id. (emphasis added), this guidance hardly implies that withdrawal is to be denied in all such cases. Meraz, moreover, did not use “counterfeit or fraudulent documents” at all; he merely stated that he was a citizen of the United States before admitting at secondary inspection that he was not. The majority‘s rationale comes close to saying that no alien who is
I therefore respectfully dissent.