United States v. Miguel Quintero , 567 F. App'x 522 ( 2014 )

FILED
NOT FOR PUBLICATION APR 09 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10060
Plaintiff - Appellee, D.C. No. 2:11-cr-00773-GMS-1
v.
MEMORANDUM*
MIGUEL QUINTERO,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Submitted April 7, 2014**
San Francisco, California
Before: KLEINFELD, NGUYEN, and WATFORD, Circuit Judges.
Miguel Quintero appeals his convictions for importing heroin in violation of
21 U.S.C. §§ 952(a), 960(a)(1), and 960(b)(1)(A), and for possession with intent to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(i). We have
jurisdiction under 28 U.S.C. § 1291. Because Quintero failed to raise any relevant
objections below,1 we review for plain error. See United States v. Sherwood, 98
F.3d 402, 408 (9th Cir. 1996). We affirm.
First, the district court did not commit plain error by allowing Agent Evans
to testify about the structure and modus operandi of drug trafficking organizations.
Quintero did not object to any of this testimony and the testimony was relevant to
the defendant’s knowledge of the drugs found within his car, see United States v.
Sepulveda-Barraza, 645 F.3d 1066, 1072–73 (9th Cir. 2011). We need not decide
whether admitting the testimony over objection would have been erroneous. Error,
if any, was not “plain.” Nor could the district court have discerned whether
Quintero had some tactical reason for not objecting.
1
Quintero does assign error to the district court’s admission of Agent
Sandor’s testimony that he would not expect drug couriers to leave fingerprints.
While Quintero did object to this testimony for lack of foundation, he makes no
argument for why the district court’s decision to overrule that objection was
incorrect or why it was an abuse of discretion. Nor does he cite any authority in the
section of his brief addressing this issue. See Fed. R. App. P. 28(a)(8)(A) (The
opening brief must contain “appellant’s contentions and the reasons for them, with
citations to the authorities and parts of the record on which the appellant relies.”)
(emphasis added). Thus, this argument is waived. See Ind. Towers of Washington
v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“[W]e will not consider any
claims that were not actually argued in appellant’s opening brief.”).
2
Quintero’s argument that the district court failed to conduct Rule 403
balancing also fails because Quintero did not make a Rule 403 objection to Agent
Evans’s testimony. Our decisions in Vallejo and McGowan do not control because
Agent Evans’s testimony was “probative of a matter properly before the court,”
namely, whether Quintero had knowledge of the heroin concealed within the drive
shaft of his car. See United States v. McGowan, 274 F.3d 1251, 1254 (9th Cir.
2001) (quoting United States v. Vallejo, 237 F.3d 1008, 1012 (9th Cir. 2001)).
Quintero also argues that Agent Evans’s testimony that drug trafficking
organizations do not use blind mules violated Rule 704(b), which prohibits an
expert witness from offering an “opinion about whether the defendant did or did
not have a mental state or condition that constitutes an element of the crime
charged or of a defense.” Assuming that Agent Evans qualifies as an expert witness
within the scope of Rule 704(b), the district court did not commit plain error by
admitting this testimony. See United States v. Gomez, 725 F.3d 1121, 1128 (9th
Cir. 2013).
3
Next, the district court did not commit plain error in allowing the
government’s expert to relay the content of out-of-court statements of drug
informants made during the course of unrelated investigations. An expert witness
may form his or her opinion on the basis of inadmissible evidence and may
sometimes disclose that evidence to the jury. Fed. R. Evid. 703. Here, the
statements were not made in connection with Quintero’s prosecution, so it is far
from clear that they implicate the Confrontation Clause at all. See Crawford v.
Washington, 541 U.S. 36, 51 (2004) (The Confrontation Clause “applies to
‘witnesses’ against the accused[.]”) (emphasis added). Even if the Confrontation
Clause is implicated here, we cannot say that this testimony was “so clearly in
violation of the Confrontation Clause that the district court should have recognized
the violation sua sponte.” Gomez, 725 F.3d at 1130. Allowing this testimony was
not plain error. See id. at 1129–31.
We have considered Quintero’s remaining contentions, including his
constitutional arguments related to the admission of the fingerprint testimony, and
conclude that they are without merit. Because the district court did not err,
Quintero’s cumulative error argument necessarily fails as well. United States v.
Jeremiah, 493 F.3d 1042, 1047 (9th Cir. 2007).
4
AFFIRMED.
5