NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v.
JOSE SOTO,

Defendant

- Appellant. No. 17

- 50287

D.C. No. 3:16

- cr

- 00766

- CAB

- 1

MEMORANDUM *

Appeal from the United States District Court for the Southern District of California Cathy Ann Bencivengo, District Judge, Presiding

Submitted April 10, 2019 ** Pasadena, California

Before: GRABER and BYBEE, Circuit Judges, and HARPOOL, *** District Judg e.

Defendant Jose Soto appeals from his conviction for importing

methamphetamine. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable M. Douglas Harpool, United States District Judge for the Western District of Mi ssouri, sitting by designation. 

# FILED

MAY 1 2019

MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2 17

- 50287

1. Soto first argues that the district court erred by allowing a H omeland

S ecurity I nvestigations agent to testify outside the scope of his noticed expert

testim ony , in violation of Fed eral R ule of Crim inal P rocedure 16(a)(1)(G) ; the

agent testified to his opinion that drug smugglers often use coded language to

communicate

. We review a district court’s decision to allow expert testimony for

abuse of discretion. Un ited States v. Basinger , 60 F.3d 1400, 1407 (9th Cir. 1995).

T he district court did not abuse its discretion because
, even if the testimony offered

could be considered outside the scope of the notice
, the witness was manifestly

qualified to offer that opinion as an expert. Even a ssuming an abuse of discretion,

the verdict would not have been different had the government more precisely

followed Rule 16(a)(1)(G)

. See United States v. Figueroa

- Lopez , 125 F.3d 1241,

12 4 7 (9th Cir. 1997) (requiring prejudice for reversal )

.
2. Soto next argues that the government improperly vouched for the

evidence and violated the golden rule in its initial closing argument by (1) asking
the jury to rely on the prosecutor’s own knowledge of how an innocent person
would behave during the search of Soto’s vehicle and (2) asking the jury to step

into the shoes of Soto during the search. See United States v. Sanchez , 176 F.3d

1214, 1224 (9th Cir. 1999) (improper vouching ) ; Fields v. Woodford , 309 F.3d

1095, 1109 (9th Cir.)
, amended
, 315 F.3d 1062 (9th Cir. 2002) (golden rule). Soto

did not object at the time, so the se statements are reviewed only for plain error.3 17

- 50287

United States v. Combs , 379 F.3d 564, 568 (9th Cir. 2004). The prosecuto r’s two

brief statements did not, when “viewed in the context of the entire trial, . . .

seriously affect[] the fairness, integrity, or public reputation of judicial
proceedings, or . . . result in a miscarriage of justice.” Id. (internal quotation marks

o mitted).

3. Soto argues that the district court erred during rebuttal closing argument

by overruling an objection after the government twice characteriz ed the evidence
as “overwhelming

. ” Soto objected on the ground that the government’s statements
were improper vouching

. Although that argument is improper, reversal is not

called for if Soto suffered no prejudice. United States v. Tam , 240 F.3d 797, 802

(9th Cir. 2001). In light of the ample evidence of guilt, the go vernments ’ two

statements did not materially affect the verdict and thus was harmless error.

4. Finally, Soto argues that the cumulative errors in his trial require reversal.

See Parle v. Runnels , 505 F.3d 922, 927 (9th Cir. 2007). After consideration of

each alleged instance of error proffered by Soto, we find no cumulative error

meriting reversal.

AFFIRMED

.