*

This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with the terms and conditions of Fed.

R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

June 16, 2011

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ARTURO MARTINEZ-SIMENTAL,

Defendant-Appellant.

No. 10-2054

(D.C. No. 1:09-CR-01748-JAP-1)

(D. New Mexico)

ORDER AND JUDGMENT*

Before O’BRIEN, SEYMOUR, and EBEL, Circuit Judges.

Mr. Arturo Martinez-Simental was convicted after a jury trial for illegal

reentry. He appeals from the district court’s denial of his motion for a mistrial. 

We affirm.

The underlying indictment accused Mr. Martinez-Simental of being a

previously-deported alien who, on June 2, 2009, was found in Otero County, New

Mexico, without having obtained permission of the Secretary for Homeland
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Security to apply for re-admission into the United States, in violation of 8 U.S.C.

§ 1326.

Before trial, the district court ruled that Mr. Martinez-Simental’s criminal

history was not to be mentioned during trial unless he testified. He did not

testify. The prosecutor warned his witnesses not to mention the defendant’s

criminal history, but Boarder Patrol Agent Juan Torres referred to the existence of

a “criminal record” when he was testifying about checking Mr. MartinezSimental’s immigration status in a database. Defense counsel immediately

objected and requested a mistrial. The district court denied the motion but gave a

curative instruction. Defense counsel objected to the instruction as reemphasizing

the fact that Mr. Martinez-Simental had a criminal record, but she did not object

to the specific language in the instruction. The oral instruction told the jury that

Agent Torres had “testified that [the database] indicated the defendant had a

criminal record. He did not testify what type of crime [was] identified, a simple

traffic violation or something else.” Rec., vol. III, at 47. The court instructed the

jury “to disregard the testimony” and “not to consider that testimony in any way

in reaching a verdict in this case.” Id. With defense counsel’s consent, the

district court gave a similar instruction at the end of trial.

On appeal, Mr. Martinez-Simental contends the district court erred in

denying his request for a mistrial. He argues he is entitled to a new trial because

the statements during trial concerning his criminal record were so prejudicial that
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the verdict cannot be regarded as the result of a fair trial.

“We review a district court’s refusal to grant a mistrial for abuse of

discretion.” United States v. Meridyth, 364 F.3d 1181, 1183 (10th Cir. 2004). 

“The district court has discretion to grant a mistrial only when a defendant’s right

to a fair and impartial trial has been impaired.” Id. Where, as here, a prosecutor

asked a question and his witness answered in an improper way, we evaluate “(1)

whether the prosecutor acted in bad faith, (2) whether the district court limited the

effect of the improper statement through its instructions to the jury, and (3)

whether the improper remark was inconsequential in light of the other evidence of

the defendant’s guilt.” Id. In conducting our evaluation, we are mindful that the

district court “is in the best position to evaluate the effect of the offending

evidence on the jury.” Id. (internal quotation marks omitted). 

Evaluating these factors, we conclude the district court was well within its

discretion in denying Mr. Martinez-Semintal’s motion for a mistrial. First, there

is no allegation the prosecutor acted in bad faith; on the contrary, the record

indicates the prosecutor acted in good faith by cautioning his witnesses not to

mention the defendant’s criminal history. Second, the district court immediately

instructed the jury to disregard Agent Torres’s statement, using language

approved by defense counsel. Finally, and most significantly, the evidence of

guilt in this case was overwhelming. On June 2, 2009, the date charged in the

indictment, Boarder Patrol agents found Mr. Martinez-Simental on a freight train
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in New Mexico, hiding in the back of a coal car. Mr. Martinez-Simental admitted

he was a Mexican citizen and had no papers authorizing him to be in the United

States. Immigration and law enforcement records indicated he had no legal status

in the United States and that he previously had been deported from the United

States to Mexico. Thus, there was ample evidence to support his conviction for

illegal reentry. Given the strength of the evidence, Agent Torres’s statement

regarding Mr. Martinez-Simental’s criminal record was inconsequential to the

verdict. The district court did not abuse its discretion when it refused to order a

mistrial. 

Moreover, even assuming the district court erred in deciding to give

limiting instructions rather than grant a mistrial, the error was harmless. A nonconstitutional error, defect, or irregularity is “harmless unless it had a ‘substantial

influence’ on the outcome or leaves one in ‘grave doubt’ as to whether it had such

effect.” United States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990) (en banc)

(quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)). Given the

overwhelming evidence of guilt in this case, the statements concerning Mr.

Martinez-Semintal’s criminal history – whether by Agent Torres or by the court in

its instructions – could not have substantially affected the jury’s verdict. 
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For the foregoing reasons, we AFFIRM.

ENTERED FOR THE COURT

Stephanie K. Seymour

Circuit Judge