United States of America v. RICARDO MORENO-HERNANDEZ, AKA Ricardo Moreno Hernandez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICARDO MORENO-HERNANDEZ,
AKA Ricardo Moreno Hernandez,
Defendant-Appellant.
No. 17-10119
D.C. No.
4:16-cr-00165-JGZ-LAB-1
MEMORANDUM*
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.
FILED
FEB 09 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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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.
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