NOT FOR PUBLICATION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 Judge.

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 Missouri, sitting by designation.

FILED

MAY 1 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 17-50287 

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

Security Investigations agent to testify outside the scope of his noticed expert 

testimony, in violation of Federal Rule of Criminal Procedure 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. United States v. Basinger, 60 F.3d 1400, 1407 (9th Cir. 1995).

The 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 assuming 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, 

1247 (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 these statements are reviewed only for plain error. 
3 17-50287 

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

omitted).

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

by overruling an objection after the government twice characterized 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 governments’ 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.