United States v. Adam Carrasco

FILED
NOT FOR PUBLICATION DEC 11 2012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. 12-10016
Plaintiff - Appellee, D.C. No. 4:10-cr-02352-DCB-
BPV-1
v.
ADAM TORRES CARRASCO, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted December 6, 2012
San Francisco, California
Before: SILVERMAN, GOULD, and CHRISTEN, Circuit Judges.
Adam Torres Carrasco appeals his jury-trial conviction and sentence for
failing to report the exportation of over $10,000 in violation of 31 U.S.C. §§ 5316and 5322 and bulk cash smuggling in violation of 31 U.S.C. § 5332. He also
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
appeals the denial of his motion for a new trial. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
Carrasco challenges the district court’s admission of evidence that on prior
occasions he crossed the border in a vehicle containing a secret compartment and
in a vehicle with a substance secreted in the horn. We review for abuse of
discretion a district court’s decision to admit evidence of prior acts pursuant to
Federal Rule of Evidence 404(b). United States v. Lozano, 623 F.3d 1055, 1059
(9th Cir. 2010). The district court did not abuse its discretion because sufficient
evidence supported the existence of the prior acts, they were not too remote in
time, and they tended to prove a material and contested point — Carrasco’s
knowledge of the money hidden in his spare tire. See id. The court also
adequately considered the probative and prejudicial consequences of introducing
the acts. See United States v. Ono, 918 F.2d 1462, 1465 (9th Cir. 1990) (district
court not required to explicitly recite Federal Rule of Evidence 403 balancing “if
this court can conclude, based on a review of the record, that the district court
considered Rule 403’s requirements”). Even if admission of the prior act evidence
was error, it was harmless in light of the overwhelming evidence of Carrasco’s
guilt. See United States v. Chase, 340 F.3d 978, 993 (9th Cir. 2003) (en banc).
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Carrasco also argues that the district court erred when it denied his motion
for a new trial based upon newly discovered expert opinion evidence, offered in a
different case, discussing the existence of “blind mules” in drug smuggling
operations. We review for abuse of discretion. United States v. Hinkson, 585 F.3d
1247, 1259 (9th Cir. 2009) (en banc). The district court’s finding that the expert
testimony was not newly discovered evidence was not an abuse of discretion
because it was not “illogical, implausible, or without support in inferences that may
be drawn from the facts in the record.” Id. at 1263. Additionally, the district court
did not abuse its discretion because this evidence could have been discovered
earlier, was at best merely impeaching, and did not suggest that “a new trial, if
granted, would probably result in acquittal.” United States v. George, 420 F.3d
991, 1000 (9th Cir. 2005).
Finally, Carrasco appeals the district court’s application of a two-level
sentence enhancement for obstruction of justice under U.S. Sentencing Guidelines
Manual § 3C1.1 (2011). Carrasco argues that the district court erred by not making
more specific findings of perjury on the record pursuant to United States v.
Dunnigan, 507 U.S. 87, 95 (1993). We review the district court’s determination
that Carrasco obstructed justice by committing perjury for clear error. See United
States v. Jimenez, 300 F.3d 1166, 1170 (9th Cir. 2002). At sentencing, defense
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counsel’s only objection was to the adequacy of the proof that any of Carrasco’s
testimony was false. Having heard the evidence presented at trial, the court
listened to argument on this point and made an express finding that Carrasco’s
testimony was “totally fabricated beyond belief.” In context, it is clear that the
court found all of Carrasco’s testimony about an alleged acquaintance who planted
the money in his car and the circumstances of their meeting to be false. The court
met its obligation to make adequate findings by making a finding “with regard to
the only objection raised against the obstruction of justice enhancement.” United
States v. Rojas-Millan, 234 F.3d 464, 471 (9th Cir. 2000).
AFFIRMED.
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