USA V. LANDON RUDOLFO, No. 16-10327 (9th Cir. 2017)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS NOV 22 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LANDON K. RUDOLFO, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) No. 16-10327 D.C. No. 1:15-cr-00813-DKW-1 MEMORANDUM* Appeal from the United States District Court for the District of Hawaii Derrick Kahala Watson, District Judge, Presiding Argued and Submitted November 7, 2017 Portland, Oregon Before: FERNANDEZ, W. FLETCHER, and MELLOY,** Circuit Judges. Landon K. Rudolfo appeals his conviction for trafficking in certain motor vehicles (those with vehicle identification numbers (VINs) which had been * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Michael J. Melloy, United States Circuit Judge for the U.S. Court of Appeals for the Eighth Circuit, sitting by designation. unlawfully “removed, obliterated, tampered with, or altered”).1 18 U.S.C. § 2321(a). We affirm. (1) Rudolfo argues that there was reversible Doyle2 error when the government elicited testimony that Rudolfo had obtained an attorney and had not cooperated with the government. Plainly, that evidence should not have been elicited,3 but because the district court promptly gave a curative instruction4 and the government did not repeat or allude to those facts at any time thereafter,5 there was no Doyle violation.6 1 Hereafter when we use “altered” we mean “removed, obliterated, tampered with, or altered.” 2 Doyle v. Ohio, 426 U.S. 610, 617–18, 96 S. Ct. 2240, 2244–45, 49 L. Ed. 2d 91 (1976); see also Anderson v. Charles, 447 U.S. 404, 407–08, 100 S. Ct. 2180, 2181–82, 65 L. Ed. 2d 222 (1980) (per curiam); United States v. Kallin, 50 F.3d 689, 693–94 (9th Cir. 1995). 3 We reject the government’s suggestion that the questions were invited by the defense. Here, the defense asked nothing to suggest that Rudolfo had cooperated with the government. See Lincoln v. Sunn, 807 F.2d 805, 810 (9th Cir. 1987); cf. Leavitt v. Arave, 383 F.3d 809, 827 (9th Cir. 2004) (per curiam); McMillan v. Gomez, 19 F.3d 465, 469–70 (9th Cir. 1994). 4 See Greer v. Miller, 483 U.S. 756, 763–65, 107 S. Ct. 3102, 3108, 97 L. Ed. 2d 618 (1987). 5 See id. 6 See id.; see also United States v. Lopez, 500 F.3d 840, 846–47 (9th Cir. 2007); United States v. Kennedy, 714 F.2d 968, 976 (9th Cir. 1983). 2 (2) Rudolfo then contends that reversal is required because a government witness (FBI agent Sakanoi) vouched for the reliability of another government witness (co-conspirator Javillo). The government concedes that there was improper vouching, as indeed there was. See United States v. Hermanek, 289 F.3d 1076, 1098 (9th Cir. 2002). However, on this record that vouching was harmless error. See United States v. Stinson, 647 F.3d 1196, 1212–13 (9th Cir. 2011); Hermanek, 289 F.3d at 1098, 1102. The error was an isolated incident,7 and the other evidence in the record8 made this a strong case against Rudolfo. The record included evidence of: Rudolfo’s knowledge that Roddy Tsunezumi, whom Rudolfo contacted, could supply a vehicle with VINs that were altered; Rudolfo’s knowledge of changes in Toyota styles from year-to-year; his purchase of a vehicle with VINs that had been altered in ways that a knowledgeable person would recognize; the fact that Rudolfo had been trained to observe alterations; and recorded conversations with Tsunezumi. (3) Rudolfo then goes on to argue that reversal is required because Javillo 7 See Stinson, 647 F.3d at 1212. 8 See id. at 1212–13. 3 was permitted to give his lay opinion9 that Rudolfo knew that the 4Runner was stolen and had VINs that were altered. However, Javillo’s testimony was based, at least in part, upon his personal knowledge of Rudolfo10 and was not entirely speculative.11 Of course, speaking to what someone “knew” inevitably has a speculative aspect to it, and the district court recognized that it was a close issue. In any event, assuming that the district court was acting outside of the boundaries of its discretion12 when it admitted Javillo’s lay testimony, the other evidence of Rudolfo’s knowledge was very strong. Thus, any error in that respect was harmless. See Gadson, 763 F.3d at 1208. (4) Even taken together, the errors in this case do not warrant reversal. See United States v. Cazares, 788 F.3d 956, 990–91 (9th Cir. 2015); United States v. Necoechea, 986 F.2d 1273, 1282–83 (9th Cir. 1993). AFFIRMED. 9 See Fed. R. Evid. 701. 10 See United States v. Lopez, 762 F.3d 852, 864 (9th Cir. 2014). 11 See United States v. Beck, 418 F.3d 1008, 1014–15 (9th Cir. 2005); United States v. Skeet, 665 F.2d 983, 985 (9th Cir. 1982). 12 See United States v. Gadson, 763 F.3d 1189, 1209 (9th Cir. 2014); United States v. Barrett, 703 F.2d 1076, 1086 (9th Cir. 1983); see also United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc). 4

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