United States v. Horacio Yepiz

FILED
NOT FOR PUBLICATION JUL 02 2012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. 09-50574
Plaintiff - Appellee, D.C. No. 2:05-cr-00578-JFW-3
v.
MEMORANDUM *
HORACIO YEPIZ, AKA Little Horse,
AKA Alberto Rodriguez, AKA Seal C,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted November 16, 2011
Pasadena, California
Before: W. FLETCHER and RAWLINSON, Circuit Judges, and MILLS, Senior
District Judge.**
Appellant Horacio Yepiz (Yepiz) challenges his convictions for
racketeering, violence in aid of a racketeering enterprise, and conspiracy to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Richard Mills, Senior U.S. District Judge for the
Central District of Illinois, sitting by designation.
distribute cocaine. Yepiz maintains that the district court erred in excluding the
testimony of Yepiz’s mental health expert, and in admitting, as a prior consistent
statement, the testimony of the murder victim’s mother that she was told that Yepiz
committed the murder. Yepiz also asserts that there was insufficient evidence to
support his conviction for conspiracy to distribute cocaine, as the government
failed to sufficiently prove the single conspiracy alleged in the indictment. We
have jurisdiction and affirm the convictions.1
1. The district court did not abuse its discretion in excluding Yepiz’s proffered
expert testimony because Yepiz “did not sufficiently show how [the expert’s]
testimony would have applied to the facts of his case. . . .” United States v.
Redlightning, 624 F.3d 1090, 1111 (9th Cir. 2010); see also United States v.
Scholl, 166 F.3d 964, 971 (9th Cir. 1999), as amended. In any event, even if the
district court erred in excluding the expert’s testimony, “it is more probable than
not that the error did not materially affect the verdict” in light of the strong
evidence against Yepiz. United States v. Laurienti, 611 F.3d 530, 549 (9th Cir.
2010) (citation omitted).
1
Yepiz’s challenge to the jury selection process is addressed in an opinion
filed contemporaneously with this disposition.
2
Alternatively, the district court properly held that the expert’s testimony was
excludable because its probative value was “outweighed by a danger of . . . unfair
prejudice, confusion of the issues, [or] misleading the jury . . .” Fed. R. Evid. 403;
see also United States v. Ramirez-Robles, 386 F.3d 1234, 1245 (9th Cir. 2004).
2. The district court did not plainly err in permitting a witness to testify
regarding the prior consistent statement of a cooperating witness who had been
impeached based on his plea agreement and cooperation with the government. See
United States v. Washington, 462 F.3d 1124, 1135 (9th Cir. 2006).
In any event, any error was harmless as the prior consistent statement had
already been mentioned to the jury prior to the testimony at issue, and the
statement was cumulative of another witness’ testimony. See United States v.
Beltran, 165 F.3d 1266, 1270 (9th Cir. 1999), as amended (holding that “even if
the admission of the prior consistent statements was error, considering that at least
one of the statements was already mentioned in front of the jury by Appellant’s
counsel, the error was harmless.”).
3. There was sufficient evidence to support Yepiz’s conviction for the single
narcotics conspiracy alleged in the indictment, as the government sufficiently
3
demonstrated that Yepiz “was involved in a broad project to distribute cocaine and
that his benefit depended on the success of the operation.” United States v.
Shabani, 48 F.3d 401, 403 (9th Cir. 1995), as amended (citation omitted).
4. The district court did not plainly err in failing to provide a multiple
conspiracies instruction as the government sufficiently demonstrated that Yepiz
was involved in the single conspiracy alleged in the indictment. See United States
v. Mincoff, 574 F.3d 1186, 1196 (9th Cir. 2009).
5. Yepiz waived any challenge to a statute of limitations instruction under the
invited error doctrine by informing the district court that, for strategic reasons, the
instruction was not required. See Laurienti, 611 F.3d at 544-45.
6. Yepiz waived any challenge to the sufficiency of the evidence premised on
the statute of limitations by failing to raise a statute of limitations defense during
his trial. See United States v. Hickey, 580 F.3d 922, 928 n.1 (9th Cir. 2009) (“The
statute of limitations is an affirmative defense that is waived if it is not raised at
trial, so [Yepiz] forfeited this argument.”) (citation omitted). In any event, the
4
government sufficiently demonstrated that Yepiz was involved in narcotics
trafficking within the statute of limitations period.
AFFIRMED.
5