United States v. Jose Segundo-Orellana

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 24 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 12-10186
Plaintiff - Appellee, D.C. No. 2:10-cr-01428-FJM-1
v.
MEMORANDUM*
JOSE ROSENDO SEGUNDO-
ORELLANA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Argued and Submitted September 9, 2013
San Francisco, California
Before: SCHROEDER and BYBEE, Circuit Judges, and BATTAGLIA, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Anthony J. Battaglia, District Judge for the U.S.
District Court for the Southern District of California, sitting by designation.
Defendant Jose Segundo-Orellana was convicted of possession of cocaine
with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A)(ii)(II). Segundo asserts six bases for reversal of his conviction on appeal:
(1) an alleged violation of Federal Rule of Criminal Procedure 16(a)(1)(G); (2) the
decision to allow certain expert testimony at trial; (3) the decision to give a
deliberate ignorance instruction; (4) various instances of alleged prosecutorial
misconduct; (5) the denial of Segundo’s motion to suppress; and (6) the denial of
Segundo’s request for an evidentiary hearing on his motion to suppress. For the
reasons that follow, we affirm.
1. Federal Rule of Criminal Procedure 16(a)(1)(G)
We review discovery rulings under Rule 16 for abuse of discretion. See
United States v. Danielson, 325 F.3d 1054, 1074 (9th Cir. 2003). “To reverse a
conviction for a discovery violation, [the court] must find not only that the district
court abused its discretion, but that the error resulted in prejudice to substantial
rights.” United States v. Baker, 10 F.3d 1374, 1398 (9th Cir. 1993), overruled on
other grounds by United States v. Nordby, 225 F.3d 1053 (9th Cir. 2000). “The
prejudice that must be shown to justify reversal for a discovery violation is a
likelihood that the verdict would have been different had the government complied
with the discovery rules, not had the evidence been suppressed.” Id. at 1398 n.8.
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Even assuming, arguendo, that the government failed to disclose its experts
opinions and the bases and reasons for those opinions, as required by Rule 16
(a)(1)(G), Segundo has not shown the requisite degree of prejudice. Segundo was
on notice of the potential use and content of blind mule testimony, and he did not
object to the drug front testimony at trial. Therefore, Segundo cannot show a
likelihood that the verdict would have been different had the government complied
with Rule 16 (a)(1)(G).
2. Expert testimony
A district court’s decision to admit expert or lay opinion testimony is
reviewed for an abuse of discretion and will be reversed only if manifestly
erroneous. United States v. Gonzalez, 307 F.3d 906, 909 (9th Cir. 2002).
Agent Gorgue was qualified to testify as an expert on trucking based on his
experience as a Border Patrol agent. See Fed. R. Evid. 702. When Agent Gorgue
testified at trial, he had been a Border Patrol agent for over six years and had talked
with hundreds, if not thousands, of truckers as part of his job. Moreover, Agent
Gorgue sufficiently explained how his experience had led to the conclusions he
reached. Furthermore, some of the testimony to which Segundo now objects was
not expert testimony at all, including Agent Gorgue’s testimony regarding the
existence of lumber mills in Gadsen.
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DEA Agent Michael Boyne was qualified to testify as an expert on drug
trafficking organizations (“DTOs”) based on his experience, too. See id. When
Agent Boyne testified at trial, he had been a DEA agent for fifteen months; he had
completed a nineteen-week program at the DEA Training Academy that included
courses on the characteristics of the modern-day drug trafficker; and he had been a
“part of” eight investigations and had “assist[ed]” on twenty to thirty
investigations. This experience was sufficient under Rule 702, and any weaknesses
in Agent Boyne’s experience were properly addressed through cross-examination
and limiting instructions to the jury. And as with Agent Gorgue, Agent Boyne’s
remaining testimony was not expert in nature. Accordingly, the district court did
not abuse its discretion by allowing Agents Gorgue and Boyne to testify as experts.
3. Deliberate ignorance instruction
A district court’s decision to give a deliberate ignorance instruction is
reviewed for abuse of discretion. See United States v. Heredia, 483 F.3d 913, 921
(9th Cir. 2007) (en banc). If the district court decides to give a deliberate ignorance
instruction in addition to an actual knowledge instruction, it must find that “the
jury could rationally find willful blindness even though it has rejected the
government's evidence of actual knowledge.” Id. at 922.
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The government adduced more than sufficient evidence at trial to support a
deliberate ignorance instruction. This evidence included Segundo’s admission that
the circumstances surrounding his trip seemed odd to him, his suspicious answers
and outright lies to the Border Patrol agents, and his “deer in the headlight look”
when the agents requested his assistance. Therefore, viewing the evidence in the
light most favorable to the government, see id., the district court did not abuse its
discretion by giving a deliberate ignorance instruction here.
4. Prosecutorial Misconduct
Because Segundo failed to object at trial, we review his claims of
prosecutorial misconduct for plain error. See United States v. Moreland, 622 F.3d
1147, 1158 (9th Cir. 2010). “Under the plain error standard, relief is not warranted
unless there has been: (1) ‘error,’ (2) that was ‘plain,’ (3) that affected ‘substantial
rights,’ and (4) that ‘seriously affected the fairness, integrity, or public reputation
of the judicial proceedings.’” Id. (quoting United States v. Recio, 371 F.3d 1093,
1100 (9th Cir. 2004)).
Segundo cannot satisfy his burden under the plain error standard. The
prosecutor’s cross-examination of the defense expert regarding his testimony in a
prior lawsuit was probative of the expert’s character for truthfulness and thus
appropriate under Federal Rule of Evidence 608(b). Moreover, the prosecutor’s
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statement that Segundo was not a willing cooperator and that Segundo knew there
was no dispatch to call for a delivery address were “reasonable inferences based on
the evidence,” not prosecutorial misconduct. United States v. Molina, 934 F.2d
1440, 1445 (9th Cir. 1991). Similarly, the prosecutor’s comments regarding the
burden of proof and the defense’s “hammer[ing] of the prosecution” were well
within the reasonable latitude afforded to prosecutors in fashioning closing
arguments. See id. As a result, there was no error that might warrant reversal.
5. Motion to suppress
“We review the district court’s denial of [a] motion to suppress de novo and
the district court’s underlying factual findings for clear error.” United States v.
Giberson, 527 F.3d 882, 886 (9th Cir. 2008). A stop at a permanent Border Patrol
checkpoint “is reasonable per se, so long as the scope of detention remains
confined to a few brief questions, the possible production of a document indicating
the detainee’s lawful presence in the United States, and a ‘visual inspection of the
vehicle . . . limited to what can be seen without a search.’” United States v. Taylor,
934 F.2d 218, 220 (9th Cir. 1991) (quoting United States v. Martinez-Fuerte, 428
U.S. 543, 558 (1976)).
Agent Siddens limited his detention of Segundo to a few brief questions
before referring the truck for a secondary inspection. Agent Siddens did not need
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individualized suspicion, see United States v. Wilson, 7 F.3d 828, 833 (9th Cir.
1993), and even if he had needed it, Segundo’s suspicious answers and his
passenger’s nervous conduct would have provided it. Agent Gorgue likewise
limited his detention of Segundo to a few brief questions before obtaining consent
to search the truck. Agent Gorgue did not need articulable suspicion to ask
Segundo a few brief questions, and Segundo’s responses to these initial questions
then provided the articulable suspicion required to further extend the stop. At that
point, Segundo voluntarily consented to the search of his truck. As a result, neither
agent violated Segundo’s Fourth Amendment rights, and the district court correctly
denied Segundo’s motion to suppress.
6. Evidentiary hearing
A district court’s decision not to conduct an evidentiary hearing on a motion
to suppress is reviewed for abuse of discretion. United States v. Howell, 231 F.3d
615, 620 (9th Cir. 2000). “An evidentiary hearing on a motion to suppress need be
held only when the moving papers allege facts with sufficient definiteness, clarity,
and specificity to enable the trial court to conclude that contested issues of fact
exist.” Id.7
Because the facts essential to the district court’s analysis were uncontested,
the district court did not abuse its discretion by deciding not to conduct an
evidentiary hearing on Segundo’s motion to suppress.
AFFIRMED.
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