United States v. Felix Lemus-Rodriguez , 616 F. App'x 325 ( 2015 )

FILED
NOT FOR PUBLICATION
SEP 16 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10172
Plaintiff - Appellee, D.C. No. 4:13-cr-00314-CKJ-JR-1
v.
MEMORANDUM*
FELIX SANTIAGO LEMUS-
RODRIGUEZ,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 14-10173
Plaintiff - Appellee, D.C. No. 4:09-cr-01358-CKJ-JR-1
v.
FELIX SANTIAGO LEMUS-
RODRIGUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
page 2
Argued and Submitted August 10, 2015
San Francisco, California
Before: KOZINSKI and TALLMAN, Circuit Judges and PIERSOL,**
Senior District Judge.
1. The district court did not err by refusing to give Ninth Circuit Model
Criminal Jury Instruction 9.8, which applies where a previously removed
defendant is “found” in the United States. The government argued only that the
defendant “reentered” the United States without permission. The district court
properly instructed the jury using corresponding Model Criminal Jury Instruction
9.6, which applies to illegal reentry offenses. To the extent defendant complains
that the indictment also charged him with being “found” in the United States, a
district court may properly instruct the jury in a manner that narrows the
indictment. See United States v. Miller, 471 U.S. 130, 144 (1985).
2. The district court didn’t abuse its discretion by preventing defendant
from introducing expert testimony about the unlikelihood of obtaining asylum
from Mexico. Defendant sought to introduce this testimony in response to the
prosecution’s questions as to whether he considered legal alternatives to reentering
the United States without permission. But defendant testified that he never
**
The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
District Court of South Dakota, sitting by designation.
page 3
investigated any alternatives. Evidence about his likelihood of obtaining lawful
admission through asylum was thus irrelevant.
3. The district court didn’t balance the probative value and prejudicial
impact of admitting defendant’s multiple prior removals under Federal Rule of
Evidence 403. But admitting the multiple removals wasn’t error, even under de
novo review. See United States v. Moran, 493 F.3d 1002, 1012 (9th Cir. 2007).
Prior acts may be introduced “to show absence of duress.” United States v.
Verduzco, 373 F.3d 1022, 1027 (9th Cir. 2004). The multiple removals established
a pattern of illegal reentry, which undermines defendant’s claim that he was under
duress when he crossed the border. While the court admitted all instances of the
defendant’s prior removals, it gave a limiting instruction to the jury. That
instruction reduced or eliminated any prejudice the defendant may have suffered.
See United States v. Bradshaw, 690 F.2d 704, 709 (9th Cir. 1982).
4. The district court abused its discretion by admitting defendant’s 2002
conviction for illegal reentry without conducting the proper balancing test under
Federal Rule of Evidence 609(b)(1). But that error was harmless because it’s
unlikely that the 2002 conviction “substantially sway[ed]” the jury to return a
guilty verdict. United States v. Alviso, 152 F.3d 1195, 1199 (9th Cir. 1998). The
page 4
defendant admitted to reentering the United States without permission. The jury
also likely disregarded defendant’s duress defense because he admitted that he
didn’t face an imminent threat of harm before he crossed the border.
5. The record reflects sufficient awareness of the requirements of Federal
Rule of Evidence 609(a)(1) to show that the district court didn’t abuse its
discretion in admitting the other prior convictions. See United States v. Jimenez,
214 F.3d 1095, 1098 (9th Cir. 2000). The court found the defendant’s credibility
to be central to the case and emphasized the importance of the government’s ability
to impeach him.
6. Because there weren’t multiple trial errors, defendant can’t succeed on
his cumulative prejudice claim. See United States v. Geston, 299 F.3d 1130, 1138
(9th Cir. 2002).
AFFIRMED.