UNITED STATES of America, Plaintiff-Appellee, v. Arturo RIVERA-GALLEGOS, Defendant-Appellant, 692 F. App'x 428

MEMORANDUM 1. The prosecution did hot commit misconduct by stating during closing argument that the bloody rocks were located further up the trail from where Arturo Rivera-Gallegos first encountered Agent Juan Ambriz. Rivera contends that the prosecution committed misconduct by making that statement without having an adequate evidentiary basis for doing so. We disagree. A Border Patrol agent testified at trial that the bloody rocks were located up the trail from where Agent Ambriz first encountered Rivera. That testimony provided adequate evidentiary support for the prosecution’s argument. See United States v.

Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997). 2. The prosecution did not sandbag Rivera by raising this argument for the first time during its rebuttal closing argument. During Rivera’s closing argument, his counsel argued that the jury should return a not guilty verdict if it believed Rivera’s account that he turned to run away after seeing Agent Ambriz. The prosecution permissibly responded to that argument during rebuttal by explaining why the evidence contradicted Rivera’s account. See United States v. Bagley, 772 F.2d 482, 494-95 (9th Cir. 1985). AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.