U.S. v. Higuera-Cecena

Full title: UNITED STATES of America, Plaintiff--Appellee, v. Juan Bautista…

Court: United States Court of Appeals, Ninth Circuit

Date published: Apr 18, 2003

61 F. App'x 478 (9th Cir. 2003)

Opinion

61 Fed.Appx. 478 (9th Cir. 2003) UNITED STATES of America, Plaintiff--Appellee, v. Juan Bautista HIGUERA-CECENA, Defendant--Appellant. No. 02-50176. D.C. No. CR-01-03048-JSR. United States Court of Appeals, Ninth Circuit. April 18, 2003

Argued and Submitted February 12, 2003.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal from the United States District Court for the Southern District of California, John S. Rhoades, District Judge, Presiding.

Before B. FLETCHER, HAWKINS, Circuit Judges, and BURY, District Judge. ^*

* Hon. David C. Bury, United States District Judge for the District of Arizona, sitting by designation.

MEMORANDUM ^**

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

Juan Bautista Higuera-Cecena appeals his conviction for importation of marijuana, in violation of 21 U.S.C. §§ 952 and 960, and for possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841. Higuera-Cecena raises three claims on appeal: (1) his Sixth Amendment and due process rights were violated by the district court's refusal to permit evidence that the customs agent, in an unrelated case, used lies to obtain an involuntary confession; (2) the agent's lies to Higuera-Cecena rendered his confession involuntary; and (3) 21 U.S.C. §§ 841 and 960 are facially unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The district court is affirmed.

The district court did not abuse its discretion by excluding, pursuant to Fed.R.Evid. 403, evidence of the custom agent's lies to a different defendant in an unrelated case. United States v. Ross, 206 F.3d 896, 898 (9th Cir.2000). While the district court improperly limited Higuera-Cecena's cross-examination of the agent, such error was harmless in light of the testimony Higuera-Cecena elicited regarding the agent's deceptive interview techniques, and any such limitation did not contribute to the jury's verdict. See Neder v. United States, 527 U.S. 1, 7-8, 119 S.Ct. 1827, 1832-33, 144 L.Ed.2d 35 (1999). Furthermore, considering the totality of the circumstances, we conclude that Higuera-Cecena's confession was voluntary, despite the agent's lies. See Amaya-Ruiz v. Stewart, 121 F.3d 486, 494-95 (9th Cir.1997). Finally, Higuera-Cecena's challenge to the constitutionality of 21 U.S.C. §§ 841 and 960 is foreclosed by United States v. Hernandez, 314 F.3d 430, 437 (9th Cir.2002).

AFFIRMED.