UNITED STATES COURT OF APPEALS March 18, 2025

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court __________________________________________ UNITED STATES OF AMERICA,

Plaintiff - Appellee, v. No. 23-2121 MARTIN LOPEZ,

Defendant - Appellant.

___________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. 1:21-CR-00284-DHU-1) ____________________________________________ Amy W. Senia, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with her on the briefs), of the Office of the Federal Public Defender, Denver, Colorado, for Defendant-Appellant. Tiffany L. Walters, Assistant United States Attorney (Alexander M.M. Uballez, United States Attorney, with her on the briefs), of the Office of the United States Attorney, District of New Mexico, Albuquerque, New Mexico, for Plaintiff-Appellee. ____________________________________________ Before MATHESON, BACHARACH, and CARSON, Circuit Judges. _____________________________________________ BACHARACH, Circuit Judge. _____________________________________________ Appellate Case: 23-2121 Document: 108-1 Date Filed: 03/18/2025 Page: 2

Mr. Martin Lopez was convicted of carjacking and brandishing a firearm in furtherance of a crime of violence. The convictions stemmed from a clash involving Mr. Lopez, his girlfriend, and a friend of the girlfriend. The government attributed the clash to Mr. Lopez’s effort to take his girlfriend’s car against her will.

Mr. Lopez presents two main issues: (1) introduction of testimonial hearsay in violation of the evidentiary rules and the Confrontation Clause and (2) improper closing argument.

The first issue grew out of testimony by investigating officers that they had questioned Mr. Lopez’s girlfriend. The officers didn’t directly testify about what the girlfriend had said. But Mr. Lopez argues that the testimony obviously implied that the girlfriend had corroborated the government’s account.

We disagree, concluding that any such implication wouldn’t have been obvious. We’ve said that the hearsay rules require an identifiable statement, and it’s not clear from the officers’ testimony what the girlfriend had said. So any possible hearsay or violation of the Confrontation Clause wouldn’t have been obvious.

The second issue involved the government’s closing argument. The government referred to threats against witnesses and their fears. For this issue, we consider whether any improprieties would have been plain. In our view, they wouldn’t have been. Granted, a juror might have interpreted

2 Appellate Case: 23-2121 Document: 108-1 Date Filed: 03/18/2025 Page: 3

some of the references as stretches from the evidence. For example, Mr. Lopez conveyed threats to some of the witnesses, but not all of them. And it’s not clear what the government meant when referring to the victims’ reports as truthful. But at most, the closing argument contained ambiguities, which wouldn’t render any improprieties plain.

Background I. The incident and the investigation

The case arose when Mr. Lopez’s girlfriend, Ms. Cristina Molina, was driving her friend (Ms. Catalina Rios). When the two women stopped, Mr. Lopez entered the car, began fighting with Ms. Molina, and drove away. As he did so, Ms. Rios secretly called 911 and recorded the events as they unfolded.

After a few minutes, Ms. Rios spoke to the 911 operator, reporting that she had just been kicked out of the car. She identified the culprit as Mar