United States v. Richard Felix, Jr. , 532 F. App'x 714 ( 2013 )


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  •                                                                               FILED
    NOT FOR PUBLICATION                                 JUL 01 2013
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No. 12-10092
    Plaintiff - Appellee,              D. C. No. 2:11-cr-00365-PHX-
    SRB-1
    v.
    RICHARD FELIX, Jr.,                              MEMORANDUM*
    Defendant - Appellant.
    Appeal from the United States District Court
    for the District of Arizona
    Susan R. Bolton, District Judge, Presiding
    Argued and Submitted May 14, 2013
    San Francisco, California
    Before: McKEOWN and WATFORD, Circuit Judges, and MARBLEY, District
    Judge.**
    Defendant Richard Felix appeals his criminal conviction for Felon in
    Possession of a Firearm and Ammunition under 
    18 U.S.C. §§ 922
    (g)(1) and
    924(a)(2). Defendant contends that, in admitting at trial the prior out-of-court
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The Honorable Algenon L. Marbley, United States District Judge for
    the Southern District of Ohio, sitting by designation.
    statements of Sabrina Bernal, a government witness, the district court made two
    evidentiary errors warranting reversal.
    First, Defendant argues that the district court erred by admitting Bernal’s
    prior statements for “impeachment” purposes. Although Federal Rule of Evidence
    607 permits the government to impeach its own witness, this Court has
    admonished that “the government must not knowingly elicit testimony from a
    witness in order to impeach him with otherwise inadmissible testimony.” U.S. v.
    Gomez-Gallardo, 
    915 F.2d 553
    , 555 (9th Cir. 1990) (quoting U. S. v. Whitson, 
    587 F.2d 948
    , 952-53 (9th Cir. 1978)). Here, the record does not indicate either that
    the government knew Bernal would change her testimony, or that its primary
    purpose in calling Bernal was to get her prior statements in front of the jury under
    the guise of impeachment. See id.; U.S. v. Crouch,
    731 F.2d 621
    , 623 (9th Cir.
    1984), cert. denied, 
    469 U.S. 1105
     (1985). Thus, there is no basis for reversal on
    these grounds.
    Defendant also contends that the district court erred in overruling
    Defendant’s Fed. R. Evid. 403 objection to Bernal’s prior statements incriminating
    Felix. We review for an abuse of discretion a court's decision that the probative
    value of evidence exceeds its potential for unfair prejudice. U.S. v. Curtin, 
    489 F.3d 935
    , 943 (9th Cir. 2007). The Rule 403 ruling here was within the district
    2
    court’s discretion because Bernal’s testimony denying that she had made prior
    incriminating statements was sufficiently damaging to permit the government to
    impeach her with those prior statements. Therefore, there was no error.
    Finally, Defendant initially appealed his sentence on the grounds that his
    2004 conviction for Arizona second-degree burglary was not a crime of violence
    warranting a Base Offense Level enhancement under U.S.S.G. § 2K2.1(a)(2). At
    oral argument, however, Defense counsel conceded that Felix’s argument in this
    regard is foreclosed by this Court’s decisions in U.S. v. Park, 
    649 F.3d 1175
    , 1177
    (9th Cir. 2011) and U.S. v. Terrell, 
    593 F.3d 1084
     (9th Cir. 2010). Accordingly, the
    district court correctly interpreted and applied the sentencing guidelines in this
    case.
    AFFIRMED.
    3