United States v. Gilbert Flores , 510 F. App'x 594 ( 2013 )

FILED
NOT FOR PUBLICATION FEB 26 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50431
Plaintiff - Appellee, D.C. No. 3:09-cr-04426-BEN-1
v.
MEMORANDUM *
GILBERT FLORES,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted February 5, 2013
Pasadena, California
Before: O’SCANNLAIN, TROTT, and CLIFTON, Circuit Judges.
Gilbert Flores appeals his conviction of importing methamphetamine into
the United States. He challenges the district court’s decisions to exclude evidence
of his wealth and admit the government’s expert witness testimony on “blind
mules.” We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Flores has not shown that he ever made an offer of proof of wealth evidence,
and without any offer of proof, we cannot review the exclusion of that evidence.
See Fed. R. Evid. 103(a)(2); United States v. Morlan, 756 F.2d 1442, 1447 (9th
Cir. 1985). Even if he had made an offer of proof, he never objected to the district
court’s decision to exclude wealth evidence at trial, so we could at most review
that decision for plain error. United States v. Valenzuela, 495 F.3d 1127, 1130 (9th
Cir. 2007). Any error was not plain. The district court relied on United States v.
Mitchell, where we held that evidence of a defendant’s poverty was inadmissible to
prove motive to commit a robbery because it was unfairly prejudicial. 172 F.3d
1104, 1108–10 (9th Cir. 1999). Mitchell may not lend much support to excluding
evidence of wealth because wealth evidence, unlike poverty evidence, does not
entail the same risk of unfair prejudice to a criminal defendant. Error is not plain,
however, “where there is no controlling authority on point and where the most
closely analogous precedent leads to conflicting results.” United States v. De La
Fuente, 353 F.3d 766, 769 (9th Cir. 2003). Because there is no controlling
authority on point, and Mitchell does not make clear whether evidence of wealth is
inadmissible, the exclusion was not plain error.
We also affirm the district court’s decision to admit expert testimony on
“blind mules.” We review a district court’s decision to admit expert testimony for
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abuse of discretion, United States v. Calderon-Segura, 512 F.3d 1104, 1109 (9th
Cir. 2008), as well as its evidentiary decisions. United States v. Alvarez, 358 F.3d
1194, 1205 (9th Cir. 2004). The district court did not abuse its discretion in
concluding that the blind mule testimony was permissible under Federal Rules of
Evidence 702 and 704. We rejected the argument that these rules prohibited this
type of testimony in United States v. Murillo, 255 F.3d 1169, 1177-78 (9th Cir.
2001), overruled on other grounds as recognized in United States v. Mendez, 476
F.3d 1077, 1080 (9th Cir. 2007). Nor did the district court abuse its discretion in
determining that the testimony was not unduly prejudicial under Federal Rule of
Evidence 703. The evidence was probative in light of Flores’s theory that he was
an unknowing courier, and it was not significantly more prejudicial than the
testimony in similar cases where we upheld such testimony against attacks under
Rule 703. See, e.g., United States v. Sepulveda-Barraza, 645 F.3d 1066, 1072–73
(9th Cir. 2011). Finally, it was not an abuse of discretion to limit questions on
cross-examination of the witness that called for inadmissible hearsay. See In re
Hanford Nuclear Reservation Litig., 534 F.3d 986, 1012 (9th Cir. 2008).
At oral argument, counsel for the government acknowledged that evidence
that blind mules exist came to the attention of his office after this trial came to a
close. He also represented that, to his knowledge, the office was no longer putting
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on testimony to the effect that blind mules do not exist. We trust that the
government will not submit expert testimony that it knows is inaccurate.
AFFIRMED.
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