United States v. Tolentino

MEMORANDUM^**

Defendant Edgar Tolentino timely appeals his convictions for importing marijuana and for possession of marijuana with intent to distribute it, in violation of 21 U.S.C. §§ 841, 952, and 960.

1. Defendant first argues that he was improperly denied discovery regarding the qualifications of a drug-detector dog and that border agents relied improperly on the dog’s alert to find reasonable suspicion to search the gas tank of his vehicle. That argument is foreclosed by United States v. Flores-Montano, — U.S. -, 124 S.Ct. 1582, 158 L.Ed.2d 311 (2004), which held that no suspicion is required for a border search of a gas tank.

2. The district court did not err in deriving the base offense level, by finding that the weight of the marijuana was more than 40 kilograms. There was evidence that the gross weight of the marijuana was 48.64 kilograms, that the packaging was plastic shrink-wrap, that there were 44 packages, and that one of the packages weighed about one kilogram. Moreover, when the court suggested that the packaging weighed about 10 percent of the total, defense counsel suggested that the packaging might weigh up to 17 percent of the total, which still left more than 40 kilograms of marijuana.

3. The district court did not err in allowing expert testimony about the structure of drug organizations to explain why there were no fingerprints taken from the gas tank. Defendant opened the door to this evidence by inquiring into the failure to look for fingerprints, and the court warned him that he was opening the door. Assuming that the evidence went beyond the scope of the defense’s inquiry, any error was harmless because of Defendant’s Mirandized confession.

4. The district court did not abuse its discretion by allowing testimony regarding the value of the marijuana because this testimony was relevant to show both that the marijuana was not for personal use and that Defendant knew of the presence of contraband in his gas tank. Moreover, even though he was willing to stipulate that the drugs were of a distributable amount, Defendant’s reliance on Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), is misplaced. Its holding is limited to proving status as a felon. United States v. Allen, 341 F.3d 870, 888 (9th Cir.2003), cert. denied, — U.S. -, 124 S.Ct. 1876, 158 L.Ed.2d 471 (2004). Even if there was error, it was harmless.

5. The government gave adequate notice and explanation of the bases for the expert’s opinion. The court did not abuse its discretion by allowing the government to substitute experts, because their testimony was essentially identical.

6. Finally, the prosecutor’s statements in closing argument do not warrant reversal. The arguments were permissible responses to defense counsel’s theory that Defendant was an unknowing courier and to his argument that the customs agent was responsible for inconsistencies in Defendant’s statements.

AFFIRMED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.