Opinion
Argued and Submitted December 14, 2000.
Submission Vacated December 22, 2000.
Resubmitted July 1, 2002.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendant was convicted in the United States District Court for the Southern District of California, Jeffrey T. Miller, J., of drug related charges, and he appealed. The Court of Appeals held that: (1) district court was not required to conduct pretrial hearing in order to discharge its gatekeeping function before admitting expert's testimony; (2) admission of irrelevant drug organization testimony by expert at defendant's trial was not plain error, in light of other evidence against defendant; (3) although district court should have excluded expert's irrelevant testimony regarding drug-trafficking organizations at defendant's trial for drug-related offense, as probative value of testimony was outweighed by its prejudicial effect, error was harmless; (4) statutes that established drug trafficking and drug importation offenses and set forth penalties for such crimes were not rendered facially unconstitutional by Apprendi decision requiring that any factor which increases maximum punishment for offense had to be found by jury beyond reasonable doubt; and (5) defendant's 94 month sentence for drug related offenses did not run afoul of Apprendi rule.
Affirmed. Appeal from the United States District Court for the Southern District of California, Jeffrey T. Miller, District Judge, Presiding.
Before RYMER, T.G. NELSON, and WARDLAW, Circuit Judges.
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.
The judgment of the district court is affirmed.
A. "Lookout" Testimony
Quezada did not object to the witness's "lookout" reference and the blinking light allusion did not constitute a "highly prejudicial error affecting substantial rights." Accordingly, there was no plain error warranting a new trial.
United States v. Gomez-Norena, 908 F.2d 497, 501 (9th Cir.1990) (internal quotation and citation omitted).
See United States v. Percy, 250 F.3d 720, 728 (9th Cir.), cert. denied, 534 U.S. 1009, 122 S.Ct. 493, 151 L.Ed.2d 405 (2001) (reviewing for plain error when defendant did not object at trial to prosecutor's asserted misconduct and stating that plain error is one that affects substantial rights).
B. Vienna Convention Violation
At the time the district court considered the import of the authorities' Vienna Convention violation, the law was more favorable to Quezada than it is now. In light of this court's en banc opinion in United States v. Lombera-Camorlinga, it would be inappropriate to remand the case to the district court with instructions to accord still more weight in the voluntariness analysis to the authorities' failure to advise Quezada of his right to contact his consulate.
206 F.3d 882 (9th Cir.), cert. denied, 531 U.S. 991, 121 S.Ct. 481, 148 L.Ed.2d 455 (2000).
C. Expert Testimony
We reject Quezada's various arguments regarding Agent Bench's expert testimony.
United States v. Alatorre involved testimony strikingly similar to that at issue here, and in that case, we held that trial courts are not compelled to conduct pretrial hearings in order to discharge their gatekeeping function. Thus, the district court's refusal to hold a Kumho hearing regarding Agent Bench's proffered testimony was not error.
222 F.3d 1098 (9th Cir.2000).
Id. at 1100.
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).
Quezada did not raise a relevancy objection at trial to Agent Bench's drug-trafficking organization testimony. Furthermore, in light of the other evidence against Quezada--including the large discrepancies in his story and the fact that he became agitated when confronted with them--we find it unlikely that Agent Bench's brief testimony regarding drug trafficking organizations influenced the outcome of the case, even though the testimony was not relevant. Thus, the district court did not commit plain error because admitting the testimony did not affect Quezada's substantial rights.
See United States v. Vallejo, 237 F.3d 1008, 1012, as amended by 246 F.3d 1150 (9th Cir.2001) ("expert testimony regarding the general structure and operations of drug trafficking organizations is inadmissible where the defendant is not charged with a conspiracy to import drugs or where such evidence is not otherwise probative of a matter properly before the court").
The district court should have sustained Quezada's objection to Agent Bench's drug-trafficking organization testimony on Rule 403 grounds because the testimony was not relevant and thus lacked any probative value. Given the other evidence against Quezada, however, this error was harmless.
The district court denied Quezada's motion to exclude Agent Bench's testimony because the court concluded that the Government met its disclosure obligations under Federal Rule of Criminal Procedure 16(a)(1)(E). This decision was not an abuse of discretion.
See United States v. Benavidez-Benavidez, 217 F.3d 720, 723 (9th Cir.), cert. denied, 531 U.S. 903, 121 S.Ct. 242, 148 L.Ed.2d 174 (2000).
D. Apprendi
Quezada's argument that Apprendi v. New Jersey rendered §§ 841 and 960 facially unconstitutional was foreclosed by United States v. Buckland and United States v. Mendoza-Paz. "Apprendi eschews the distinction between sentencing factors and elements of a crime." Sections 841 and 960 merely have "separate statutory provisions governing [the] substantive offense and [the] sentencing factors," a structure wholly acceptable under Apprendi.
530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
289 F.3d 558 (9th Cir.), cert. denied, 535 U.S. 1105, 122 S.Ct. 2314, 152 L.Ed.2d 1067 (2002).
286 F.3d 1104 (9th Cir.2002).
Buckland, 289 F.3d at 566.
Id. at 565.
See id. at 565-66; see also Mendoza-Paz, 286 F.3d at 1110 ("In Buckland, we made clear that Apprendi does not hold that Congress can no longer have separate statutory provisions governing a substantive offense and sentencing factors.... Finding Buckland's reasoning equally applicable to Section 960, we hold that the statute is constitutional.").
Finally, §§ 841 and 960 are constitutional as applied to Quezada. Based solely on the facts the jury found, Quezada could have been sentenced to up to 120 months in prison. His ninety-four-month sentence was thus well within the applicable statutory maximum. Accordingly, there was no as-applied Apprendi violation.
Page 162.
See 530 U.S. at 490 ("any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt").
AFFIRMED.