USA V. ISAAC MARTINEZ, No. 11-50093 (9th Cir. 2012)
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FILED DEC 19 2012 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 11-50093 D.C. No. 8:10-CR-00033-AG-2 v. MEMORANDUM * ISAAC REYES MARTINEZ, Defendant - Appellant. Appeal from the United States District Court for the Central District of California Andrew J. Guilford, District Judge, Presiding Argued and Submitted November 8, 2012 Pasadena, California Before: REINHARDT and THOMAS, Circuit Judges, and NAVARRO,** District Judge. Appellant Isaac Reyes Martinez appeals his conviction after jury trial for conspiracy to possess with intent to distribute methamphetamine, 21 U.S.C. §§ 841(a)(1) and 846, and possession of firearms in furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)(1)(A)(i). * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Gloria M. Navarro, United States District Judge for the District of Nevada, sitting by designation. We hold that the government violated Appellant s Fifth Amendment right to be convicted solely on the evidence adduced at trial, under United States v. Schuler, 813 F.2d 978, 981 82 (9th Cir. 1987), by commenting in its closing argument on Appellant s demeanor in the courtroom during witness Acosta-Ruiz s testimony and identification of Appellant. Analyzing the record for harmless error pursuant to Chapman v. California, 386 U.S. 18, 24 (1967), we cannot conclude that this error was harmless beyond a reasonable doubt. See United States v. Weatherspoon, 410 F.3d 1142, 1151 (9th Cir. 2005). Therefore we reverse Appellant s conviction and remand the case to the district court for a new trial. REVERSED and REMANDED. 2
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