United States v. Ricardo Moreno-Hernandez

FILED NOT FOR PUBLICATION FEB 09 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-10119 Plaintiff-Appellee, D.C. No. 4:16-cr-00165-JGZ-LAB-1 v. RICARDO MORENO-HERNANDEZ, MEMORANDUM* AKA Ricardo Moreno Hernandez, Defendant-Appellant. Appeal from the United States District Court for the District of Arizona Jennifer G. Zipps, District Judge, Presiding Submitted February 7, 2018** San Francisco, California Before: THOMAS, Chief Judge, and TASHIMA and CHRISTEN, Circuit Judges. Ricardo Moreno-Hernandez appeals his jury conviction for violating 8 U.S.C. § 1326. We have jurisdiction over this appeal, 28 U.S.C. § 1291, and 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 district court did not abuse its discretion in denying Moreno- Hernandez’s motion for a new trial on the grounds of his excluded prior consistent hearsay statement to Immigration & Customs Enforcement officials in September 2015 that he was born in Santa Monica, California. The district court correctly identified Federal Rule of Evidence 801(d)(1)(B) and the four-element test from United States v. Collicott, 92 F.3d 973, 979 (9th Cir.), as amended (Oct. 21, 1996), that guide the admission of prior consistent hearsay statements. The district court’s application of this Rule to Moreno-Hernandez’s prior consistent hearsay statement is not implausible or illogical. United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). The prosecution’s inadvertent misstatement does not rise to the level of prosecutorial misconduct, and does not constitute plain error. See, e.g., United States v. Lloyd, 807 F.3d 1128, 1168 (9th Cir. 2015) (“A prosecutor’s inadvertent mistakes or misstatements are not misconduct.”). For these reasons, Moreno-Hernandez is not entitled to a new trial. AFFIRMED. 2 17-10119 Court of Appeals for the Ninth Circuit ca9 9th Cir. United States v. Ricardo Moreno-Hernandez 9 February 2018 Criminal Unpublished 690c0665bc06dbc9f159e7aa7881561d479aa9c6

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