United States of America v. Francisco Javier Gomez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANCISCO JAVIER GOMEZ,
Defendant - Appellant.
No. 13-50502
D.C. No. 3:13-cr-00436-W-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, Senior District Judge, Presiding
Argued and Submitted January 6, 2015
Pasadena, California
Before: KOZINSKI, WARDLAW, and W. FLETCHER, Circuit Judges.
Francisco Javier Gomez appeals his conviction for knowingly and
intentionally importing more than 500 grams of a substance containing
methamphetamine into the United States in violation of 21 U.S.C. §§ 952 and 960.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
FILED
MAR 04 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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The only issue for our review is whether the prosecutor misstated the
evidence during closing argument so as to warrant reversal of Gomez’s conviction.
We review this claim for plain error because Gomez did not object to the
prosecutor’s statements at trial. United States v. Atcheson, 94 F.3d 1237, 1244 (9th
Cir. 1996).
We find that the prosecutor did misstate the evidence during closing
argument. In a post-arrest interview, Gomez stated that the methamphetamine-
filled food cans belonged to a woman who crossed the street in front of his car “at
the first bridge, when you’re coming from the- from Zona Rio.” During closing
argument, the prosecutor displayed photographs of the last bridge one would
encounter traveling from Zona Rio to the Port of Entry, and argued that, because of
the surrounding fencing depicted in the photographs, Gomez’s exchange with the
woman could not have occurred. The prosecutor’s argument that the woman could
not have crossed the street at that point, which rendered Gomez’s statement not
credible, was not based on the evidence in the record and was therefore improper.
United States v. Mageno, 762 F.3d 933, 943 (9th Cir. 2014).
The prosecutor’s misstatements, however, did not affect Gomez’s substantial
rights, and therefore do not warrant reversal. We do not find “a reasonable
probability that the error[] affected the outcome of the trial.” Id. at 944 (internal
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quotation marks omitted). Gomez’s explanation for his acquisition of the
methamphetamine-filled food cans was implausible. The photographs in the
record of the first bridge coming from Zona Rio show that the woman would have
had to cross multiple lanes of highway traffic and a concrete divider to reach
Gomez’s car, while carrying approximately twenty-seven pounds of
methamphetamine. It is extremely unlikely that a drug trafficker would place
methamphetamine worth almost half a million dollars in a stranger’s car, or that
Gomez would permit a stranger to place uninspected goods in his car as he was
about to cross the border. Moreover, Gomez’s statements were inconsistent as to
his acquisition of the methamphetamine.
Gomez was the driver and sole occupant of a vehicle containing a significant
amount of methamphetamine, which alone is evidence of knowledge. United
States v. Collins, 764 F.2d 647, 652 (9th Cir. 1985). Because there was
overwhelming evidence of Gomez’s guilt, and his defense was implausible, the
prosecutor’s misstatements during closing argument did not affect Gomez’s
substantial rights.
AFFIRMED.
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