United States v. Adan Moran-Elias

FILED
NOT FOR PUBLICATION NOV 16 2012
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. 11-50540
Plaintiff - Appellee, D.C. No. 3:11-cr-00606-JAH-2
v. MEMORANDUM *
ADAN MORAN-ELIAS,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted November 7, 2012
Pasadena, California
Before: GRABER, IKUTA, and HURWITZ, Circuit Judges.
Adan Moran-Elias appeals his jury conviction for several offenses related to
smuggling an undocumented alien, Martin Duarte-Saucedo, into the United States.
We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Customs and Border Patrol (CBP) agents had probable cause to arrest
Moran-Elias under the “totality of the circumstances,” United States v. Lopez, 482
F.3d 1067, 1077–78 (9th Cir. 2007). The CBP’s observations that Duarte-Saucedo
crossed the border using false documentation, proceeded to an apparently pre-
planned meeting with Jamah Briggs, accompanied Briggs to another apparently
pre-planned meeting with Moran-Elias, and then accompanied Moran-Elias to
Nelida Dimas’s waiting car, created a “fair probability” that Moran-Elias was part
of an “ongoing criminal operation” to smuggle Duarte-Saucedo into the United
States. See United States v. Rodriguez, 869 F.2d 479, 483 (9th Cir. 1989).
As the government concedes, Duarte-Saucedo’s videotaped deposition was
admitted in error. In light of the record as a whole, including Moran-Elias’s
confession, Dimas’s testimony regarding her instructions to pick up and transport
an undocumented alien, and the CBP’s observation that Duarte-Saucedo presented
false identification at the border, we are convinced that this error was harmless
beyond a reasonable doubt. See United States v. Pena-Gutierrez, 222 F.3d 1080,
1089–90 (9th Cir. 2000).
The district court did not err in admitting Dimas’s testimony regarding
smuggling activity that occurred before the Duarte-Saucedo incident. There was
ample evidence of a long-standing smuggling conspiracy involving Moran-Elias,
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Dimas, and others, and thus the testimony was “‘directly related to, or inextricably
intertwined with, the crime charged in the indictment.’” United States v. Rizk, 660
F.3d 1125, 1131 (9th Cir. 2011) (quoting United States v. Lillard, 354 F.3d 850,
854 (9th Cir. 2003)).
Because Briggs’s post-arrest statement was exculpatory and did not
implicate Moran-Elias, the district court did not err in refusing to give a limiting
instruction under Richardson v. Marsh, 481 U.S. 200, 211 (1987). Finally, there
was no cumulative error.
AFFIRMED.
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