United States v. Fernando Saldivar-Gadea

FILED
NOT FOR PUBLICATION OCT 25 2011
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. 10-10414
Plaintiff - Appellee, D.C. No. 4:09-cr-02673-DCB-
JJM-2
v.
FERNANDO SALDIVAR-GADEA, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted July 21, 2011
San Francisco, California
Before: TASHIMA and RAWLINSON, Circuit Judges, and RAKOFF, Senior
District Judge.**
Fernando Saldivar-Gadea appeals from his jury conviction of one count of
conspiracy to transport illegal aliens and three counts of transporting aliens for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for Southern District of New York, sitting by designation.
profit. He contends that the district court erred in failing to grant a mistrial or a
new trial because the prosecution improperly commented during its opening
statement that one of his co-conspirators was a juvenile and that another
co-conspirator had previously been convicted of alien smuggling. He also asserts
that the trial court erred by allowing the admission of evidence that Saldivar-Gadea
had been arrested on suspicion of alien smuggling four years prior to his arrest.
I. Prosecutorial Misconduct
An appellant must demonstrate misconduct and prejudice to establish
prosecutorial misconduct. See United States v. Wright, 625 F.3d 583, 609-610 (9th
Cir. 2010). This means that the appellant must show that it is “more probable than
not” that the prosecutor’s comments “affected the jury’s verdict. . . .” United
States v. Nobari, 574 F.3d 1065, 1082 (9th Cir. 2009). Any potential prejudice
caused by the prosecutor’s comments and question was mitigated by the
overwhelming evidence of Saldivar-Gadea’s guilt presented at trial and the district
court’s curative instruction. See United States v. Weatherspoon, 410 F.3d 1142,
1151 (9th Cir. 2005). Thus, the district court did not abuse its discretion when it
denied Saldivar-Gadea’s motion for a mistrial. See United States v. Pineda-Doval,
614 F.3d 1019, 1036 (9th Cir. 2010).
II. FRE 404(b) Evidence of Saldivar-Gadea’s Prior Arrest
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Evidence of prior bad acts may be admitted “if it (1) tends to prove a
material point; (2) is not too remote in time; (3) is based upon sufficient evidence;
and, (4) in some cases, is similar to the offense charged. . . .” United States v.
Banks, 514 F.3d 959, 976 (9th Cir. 2008) (citation and internal quotation marks
omitted).
The Government was required to prove that Saldivar-Gadea knowingly or
recklessly transported the illegal aliens into the country for profit. See 8 U.S.C. §
1324(a)(1)(A)(ii). The evidence regarding the previous arrest for suspicion of
alien smuggling tended to show knowledge of how to smuggle aliens into the
country. See United States v. Lozano, 623 F.3d 1055, 1059 (9th Cir. 2010) (per
curiam).
Admission of a prior act that occurred four years prior to the charged crime
was not an abuse of discretion. See United States v. Estrada, 453 F.3d 1208, 1213
(9th Cir. 2006) (“Courts have allowed Rule 404(b) evidence to be admitted where
ten years or longer periods of time have passed” between the prior act and the
instant offense.) (citations omitted).
The district court acted within its discretion when it found that the probative
value of the evidence of the prior arrest was not substantially outweighed by its
potential prejudicial effect. See United States v. Winn, 767 F.2d 527, 530 (9th Cir.
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1985) (per curiam), as amended. Because the district court properly exercised its
discretion in making the challenged rulings, the denial of Saldivar-Gadea’s motion
for a new trial was not an abuse of discretion. See S.E.C. v. Todd, 642 F.3d 1207,
1225 (9th Cir. 2011) (reviewing denial of motion for a new trial for abuse of
discretion).
AFFIRMED.
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