FILED
NOT FOR PUBLICATION FEB 09 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10451
Plaintiff - Appellee, D.C. No. 2:86-cr-00272-PGR-1
v.
MEMORANDUM*
FRANCISCO ARCHIVALDO PADILLA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, District Judge, Presiding
Argued and Submitted December 8, 2010
San Francisco, California
Before: HUG, D.W. NELSON, and McKEOWN, Circuit Judges.
Francisco A. Padilla timely appeals the district court’s judgment finding him
guilty of Conspiracy to Import Marijuana (21 U.S.C. § 963); Importation of
Marijuana (21 U.S.C. §§ 952(a) and 960); Conspiracy to Possess with Intent to
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Distribute Marijuana (21 U.S.C. §§ 846 and 841(b)(1)(B)); and Possession with
Intent to Distribute Marijuana (21 U.S.C. § 841(b)(1)(B)).
On appeal, Padilla raises four separate issues. We address three of those
issues in this memorandum. Padilla’s remaining contention related to jury
instructions under Carter v. Kentucky, 450 U.S. 288 (1981), is addressed in the
opinion filed concurrently with this memorandum. United States v. Padilla, No.
09-10451, — F.3d — (9th Cir. 2011).
Padilla argues that the testimony of three individuals was introduced in
violation of the Confrontation Clause. We ordinarily review alleged violations of
the Confrontation Clause de novo. United States v. Hernandez-Herrera, 273 F.3d
1213, 1217 (9th Cir. 2001). Absent an objection at trial, however, we review for
clear error. United States v. Reyes-Bosque, 596 F.3d 1017, 1032 (9th Cir. 2010).
Here, each of the statements contested on appeal was either admitted for proper,
non-hearsay purposes or was cumulative and therefore harmless. See United States
v. Mitchell, 502 F.3d 931, 966 (9th Cir. 2007).
Padilla also argues that testimony regarding the use of the area surrounding
Caborca, Mexico as a staging area for drug exports was impermissible drug courier
profile evidence. The district court did not abuse its discretion in admitting the
statements. One statement was proper lay opinion, see United States v. Freeman,
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498 F.3d 893, 904-905 (9th Cir. 2007), and the other was proper expert testimony,
see United States v. Klimavicius-Viloria et al., 144 F.3d 1249, 1259-60 (9th Cir.
1998) (law enforcement expert testimony regarding drug smuggling routes is
admissible evidence establishing modus operandi).
Finally, Padilla claims that an inadvertent comment by the prosecution
during closing argument constituted reversible error. We review for harmless
error. See United States v. Washington, 462 F.3d 1124, 1135 (9th Cir. 2006).
Although the prosecution’s comment was improper, the district court sustained the
defense’s objection and the prosecutor immediately corrected the statement by
apologizing and stating that she misspoke. The judge reiterated jury instructions
regarding the presumption of innocence before the jury began its deliberations.
The error was harmless. See id.
AFFIRMED.
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