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 2018-09

United States v. Vidal Morales ( 2018 )


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  •                                                                               FILED
NOT FOR PUBLICATION
SEP 07 2018
UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,                        No.   16-50283
Plaintiff-Appellee,                D.C. No.
2:12-cr-01075-DOC-1
v.
VIDAL LICEA MORALES, AKA Adrian,                 MEMORANDUM*
AKA Capri, AKA Adrian Licea, AKA
Mauricio Licea, AKA Mario Sanchez
Morales,
Defendant-Appellant.
UNITED STATES OF AMERICA,                        No.   16-50285
Plaintiff-Appellee,                D.C. No.
2:12-cr-01075-DOC-3
v.
MAURICIO LICEA, AKA Mauricio
Licea-Morales, AKA Mingo, AKA Licea
Vidal,
Defendant-Appellant.
Appeal from the United States District Court
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted August 27, 2018
Pasadena, California
Before: GOULD and BYBEE, Circuit Judges, and HERNANDEZ,** District
Judge.
Vidal Licea Morales and Mauricio Licea appeal their convictions for
conspiracy to distribute methamphetamine and related crimes. We affirm.
1.     Defendants have failed to make the requisite “substantial preliminary
showing” that DEA Agent Elvis Hugee deliberately or with reckless disregard for
the truth omitted material information from the September Affidavit necessary to
be entitled to a Franks hearing. United States v. Barragan,
    871 F.3d 689
    , 701 (9th
Cir. 2017). We reject Defendants’ request to impute the district court’s findings
regarding Agent Anna Davila’s recklessness to Hugee. Further, Defendants are
unable to show that the omissions were material to the issuing judge’s necessity
finding. United States v. Rivera,
    527 F.3d 891
    , 903–04 (9th Cir. 2008); United
States v. McGuire,
    307 F.3d 1192
    , 1198 (9th Cir. 2002). Suppression is not
warranted.
**
The Honorable Marco A. Hernandez, United States District Judge for
the District of Oregon, sitting by designation.
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2.     We find that the district court did not abuse its discretion in admitting
Hugee’s testimony. Hugee’s interpretations of drug jargon were based on his
personal knowledge gained during the course of the investigation as opposed to
any specialized knowledge. See United States v. Gadson,
    763 F.3d 1189
    , 1206–13
(9th Cir. 2014);
    Barragan, 871 F.3d at 703
    –04. Further, Hugee’s testimony was
properly admitted under Federal Rule of Evidence 701. Hugee provided adequate
foundation for his testimony based on his personal knowledge of the investigation
and any error arising from Hugee’s interpretations of clear or unambiguous
language was harmless. See United States v. Freeman,
    498 F.3d 893
    , 904 (9th Cir.
2007).
Moreover, the district court did not abuse its discretion by failing to give a
dual-role jury instruction. We “do not fault the district court for failing to intervene
sua sponte” in such situations where the distinction between lay and expert
testimony is a “fine one.”
    Id. 3. We 
    find that the district court did not abuse its discretion when it
determined that Carlos Soto’s testimony did not cause a mistrial. The district court
relied on reason and common sense to conclude that the purported connection
between the jury’s knowledge of Vidal’s custodial status at arraignment and
Maurice’s physical freedom at trial would not lead the jury to conclude that Vidal
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remained in custody. See Estelle v. Williams,
    425 U.S. 501
    , 504 (1976); United
States v. Washington,
    462 F.3d 1124
    , 1136–37 (9th Cir. 2006).
AFFIRMED.
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