Opinion
No. 06-10324.
Argued and Submitted March 13, 2007.
Filed March 28, 2007.
Thomas C. Muehleck, USH-Office of the U.S. Attorney, Honolulu, HI, for Plaintiff-Appellee.
Rustam Barbee, Esq., Honolulu, HI, for Defendant-Appellant.
Appeal from the United States District Court for the District of Hawaii, Alan C. Kay, District Judge, Presiding. D.C. No. 04-00054-ACK.
Before: BRUNETTI, W. FLETCHER, and BEA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Cir. R. 36-3.
Defendant Larry Pagan was convicted of conspiracy to distribute and possess with intent to distribute 100 grams or more of heroin; attempted possession with intent to distribute 100 grams or more of heroin; and attempted possession with intent to distribute cocaine. Pagan's first trial resulted in a mistrial due to a hung jury. Pagan appeals the district court's denial of his motion for mistrial at the second trial following the prosecution's allegedly improper impeachment of a defense witness in violation of the "law of the case" doctrine. We affirm.
Pagan did not preserve this issue for appeal. He failed either to move to suppress in a timely manner following receipt of the government's notice to impeach or to object when the prosecutor asked questions touching on the witness's prior conviction. Additionally, Pagan was not prejudiced because his oral motion to strike evidence following the impeachment was granted, curative instructions were given, the impeachment was a single instance, and there existed substantial evidence of guilt against Pagan.
AFFIRMED.