NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

MIGUEL HURTADO, AKA Miguel 

Nicodeml Hurtado, AKA Miguel Nicomedes 

Hurtado, AKA Miguel Nicomedl Hurtado, 

AKA Miguel Nicomedle Hurtado, AKA 

Nicomedes Hurtado, AKA Nicomedes 

Miguel Hurtado, AKA Nicomedles Hurtado, 

AKA Lil Bullet, AKA Loco Park, AKA 

Nick, AKA Hortado Nicomede, AKA 

Hortado Nicomedes, AKA Sneaky, AKA 

Woody, AKA Youngster, 

Defendant-Appellant.

No. 19-50174 

D.C. No. 2:18-cr-00073-AB-1 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Andre Birotte, Jr., District Judge, Presiding

Argued and Submitted December 8, 2020

Pasadena, California

Before: KELLY,** GOULD, and R. NELSON, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the 

U.S. Court of Appeals for the Tenth Circuit, sitting by designation.

FILED

DEC 21 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Defendant-Appellant Miguel Hurtado appeals from his conviction for 

possessing a firearm or ammunition as a felon in violation of 18 U.S.C § 922(g)(1). 

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and affirm Mr. 

Hurtado’s conviction. 

STANDARD OF REVIEW

We review a district court’s handling of jury incidents for abuse of 

discretion. United States v. Simtob, 485 F.3d 1058, 1061 (9th Cir. 2007). Where a 

party fails to raise a contemporaneous objection at trial, the claim is reviewed for 

plain error. Puckett v. United States, 556 U.S. 129, 135 (2009). To establish plain 

error, a defendant must show that (1) there was an error; (2) the error was plain; (3) 

the error affected the defendant’s substantial rights; and (4) the error “seriously 

affects the fairness, integrity or public reputation of judicial proceedings.” MolinaMartinez v. United States, 136 S. Ct. 1338, 1343 (2016) (internal quotations 

omitted).

DISCUSSION

The parties are familiar with the facts, so we need not restate them in detail 

here. Mr. Hurtado argues that he is entitled to a new trial on three grounds: (1) the 

district court’s failure to hold an evidentiary hearing to determine possible jury 

prejudice; (2) the government’s mischaracterization of evidence during closing 

arguments; and (3) the failure to instruct the jury that Mr. Hurtado must be aware 
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of his status as a felon to be convicted under § 922(g).

A. Jury Prejudice

During a bus ride to court one day, a juror struck up a conversation with a 

fellow passenger, a county prosecutor, about what kind of case the juror was 

serving on and who was the presiding district judge. At the courthouse, the juror 

told the other jurors that the county prosecutor said the district judge was “very 

notable” and asked what kind of case it was. At that point, the other jurors told the 

juror in question to stop talking.

Mr. Hurtado argues that the district court was required to hold an evidentiary 

hearing once it was informed of this incident. We have established a two-step 

process for evaluating allegedly prejudicial jury contacts. First, “[t]he defendant 

must present evidence of a contact sufficiently improper as to raise a credible risk 

of affecting the outcome of the case.” Godoy v. Spearman, 861 F.3d 956, 967 (9th 

Cir. 2017). If the defendant makes that showing, “the presumption of prejudice 

attaches, and the burden shifts to the state to prove that the contact was harmless.” 

Id. at 968. The district court must also hold an evidentiary hearing to evaluate 

prejudice only “if there is any remaining uncertainty about ‘what actually 

transpired, or whether the incident[]’” was prejudicial. Id. at 969 (quoting Remmer 

v. United States, 347 U.S. 227, 229 (1954)). An evidentiary hearing is not required 

upon every allegation of jury misconduct or bias. United States v. Saya, 247 F.3d 
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929, 934–35 (9th Cir. 2001). Because Mr. Hurtado failed to object to the district 

court’s handling of the jury incident below, we review his claim for plain error. 

See Puckett, 556 U.S. at 135.

The district court appropriately handled the report of the potentially 

improper jury contact. Upon receiving the report, the district court questioned the 

juror about the conversation in front of the government and defendant’s counsel. 

The juror’s account matched that of the juror who reported the incident. The 

district court replaced the juror with an alternate “in [an] abundance of caution,” 

but found that the juror did not pass on inappropriate information about the facts or 

merits of the case. Mr. Hurtado did not object to any of this and agreed with the 

government that instructing the jury not to speculate as to the reason for the juror’s 

excusal was an adequate response. Under these circumstances, the district court 

was not required to hold an evidentiary hearing and did not err in failing to do so. 

There is no error, plain or otherwise.

B. Prosecutorial Misconduct

Mr. Hurtado argues that the district court was required to grant a mistrial 

based on the prosecutor’s mischaracterization of an officer’s testimony during 

closing arguments. Mr. Hurtado did not object to the misstatement at trial, so his 

claim is reviewed for plain error. See Puckett, 556 U.S. at 135.
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“A prosecutor’s inadvertent mistakes or misstatements are not misconduct” 

and “are not a basis for reversal.” United States v. Lloyd, 807 F.3d 1128, 1168 (9th 

Cir. 2015). Here, the mistake appears inadvertent, as the prosecutor briefly 

conflated different aspects of the officer’s testimony but characterized it correctly 

shortly thereafter. Moreover, the district court instructed the jury that what 

lawyers say in their closing arguments is not evidence. See id. at 1168 (noting 

importance of district court’s instructions “that the jury’s recollections—not the 

prosecutor’s summation—controlled”). Accordingly, the district court was not 

required to grant a mistrial.

C. Rehaif Instruction 

Finally, Mr. Hurtado argues that he is entitled to a new trial because the jury 

was not instructed that the government must prove that Mr. Hurtado knew of his 

status as a felon in order to support a conviction under 18 U.S.C. § 922(g). Mr. 

Hurtado did not raise this issue below, so it is reviewed for plain error. The 

government concedes that this omission was a clear and obvious error under Rehaif 

v. United States, 139 S. Ct. 2191 (2019), but argues that the error did not violate 

Mr. Hurtado’s substantial rights and did not seriously affect the fairness or 

integrity of the judicial proceedings.

The failure to provide a Rehaif instruction will not constitute reversible plain 

error where the record on appeal demonstrates that a “hypothetical retrial is certain 
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to end in the same way as the first one.” United States v. Johnson, 979 F.3d 632, 

637 (9th Cir. 2020). Mr. Hurtado testified on cross-examination that he was 

sentenced to four years in prison for a prior offense and his PSR indicates that he 

has been convicted of possessing a firearm as a felon three times and served more 

than four years for one of those convictions. Given this uncontroverted evidence, 

Mr. Hurtado cannot plausibly argue that a trier of fact might find that he was 

unaware of his status as a felon; thus, he cannot establish reversible plain error. 

See id. at 638–39.

AFFIRMED.