United States v. Lizbeth Gutierrez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 17 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-50383
Plaintiff - Appellee, D.C. No. 3:13-cr-03517-JLS-1
v.
MEMORANDUM*
LIZBETH GUTIERREZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted September 3, 2015
Pasadena, California
Before: O’SCANNLAIN, FISHER and BYBEE, Circuit Judges.
Lizbeth Gutierrez appeals her conviction for importing methamphetamine
and the district court’s denial of her post trial motions for an acquittal or new trial.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The government’s disclosure of impeachment evidence regarding its
expert witness Goldberg did not violate Brady v. Maryland, 373 U.S. 83 (1963).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Although the evidence was not disclosed until trial, Gutierrez was able to impeach
Goldberg during cross-examination, highlight the evidence in her closing argument
and recall Goldberg for further cross-examination. See United States v. Vgeri, 51
F.3d 876, 880 (9th Cir. 1995) (holding the disclosure of evidence during trial did
not violate Brady because the defendant could – and did – use the evidence on
cross-examination); United States v. Gordon, 844 F.2d 1397, 1403 (9th Cir. 1988)
(holding the disclosure of documents during trial did not violate Brady, in part,
because the defendant could “recall [the relevant witness] and reexamine him about
the documents”). Gutierrez has not persuasively shown any prejudice from the late
disclosure.
2. The district court did not err in permitting Goldberg’s testimony to stand.
Striking the testimony would have been inappropriate because the government’s
untimely disclosure was merely an inadvertent mistake, resulting from an oversight
of Gutierrez’s withdrawal of her stipulation. See United States v. Finley, 301 F.3d
1000, 1018 (9th Cir. 2002) (holding a court should strike testimony only when the
violation is “willful and motivated by a desire to obtain a tactical advantage”
(quoting Taylor v. Illinois, 484 U.S. 400, 415 (1988))).
3. The government was not required to prove Gutierrez knew the imported
substance was methamphetamine. Each of the arguments Gutierrez raises is
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foreclosed by United States v. Jefferson, 791 F.3d 1013, 1017-19 (9th Cir. 2015),
which held “a defendant’s knowledge of the type and quantity of the controlled
substance he imports is not . . . an element of the offense.” Id. at 1016; see also id.
at 1017-19.
4. Gutierrez failed to raise in the district court her argument that the jury
instructions were impermissibly vague because they used the words “some other
prohibited drug” instead of “controlled substance.” The argument is therefore
waived. See Munns v. Kerry, 782 F.3d 402, 412 (9th Cir. 2015).
5. Because the district court did not err in admitting Goldberg’s testimony,
rejecting Gutierrez’s proposed jury instruction and finding there was no Brady
violation, Gutierrez’s remaining challenges necessarily fail.
AFFIRMED.
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