FILED
NOT FOR PUBLICATION MAR 08 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-50281
Plaintiff - Appellee, D.C. No. 3:07-cr-00491-BTM-1
v.
MEMORANDUM*
MANUEL A. MARTINEZ-
COVARRUBIAS,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Submitted February 8, 2011**
Pasadena, California
Before: REINHARDT, RAWLINSON, and N.R. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Neither of Martinez-Covarrubias’s prosecutorial misconduct claims merits
reversal of his conviction.1 The first–that the prosecutor questioned a witness
regarding Martinez-Covarrubias’s use of a false name in violation of a prior
evidentiary ruling by the district court–has no basis in fact: the district court’s in
limine evidentiary ruling admitted testimony on the subject, and was retracted by
the district court only after the testimony had been elicited by the prosecutor. The
second–that the prosecutor repeatedly elicited inadmissible testimony regarding the
IAFIS computer system, requiring the defense to object five times–fails because
even had the prosecution’s actions constituted misconduct, the evidence of
Martinez-Covarrubias’s guilt was overwhelming. See United States v. Wright, 625
F.3d 583, 613 (9th Cir. 2010).
Martinez-Covarrubias challenges the district court’s decision to recognize as
an expert an ICE agent who testified as to the 2001 street value of the seized
methamphetamine. Even assuming that the district court erred, Martinez-
Covarrubias was not prejudiced by the ICE agent’s testimony. The prosecution
1
The government’s motion to strike appellant’s opening brief is denied. The
brief does not “exhibit[] a complete disregard for the requirements of the appellate
rules respecting citations to the record,” Han v. Stanford University, 210 F.3d
1038, 1040 (9th Cir. 2000), and thus falls within this court’s practice of tolerating
“minor breaches of one rule or another.” N/S/ Corp. v. Liberty Mut. Ins. Co., 127
F.3d 1145, 1146 (9th Cir. 1997).
2
introduced evidence that the amount of methamphetamine found in Martinez-
Covarrubias’s truck was 12,000 times greater than one would carry for personal
use. Thus, “it is more probable than not that the error did not materially affect the
verdict.” See United States v. Seschillie, 310 F.3d 1208, 1214 (9th Cir. 2002).
The district court did not err in admitting the lab test results of the seized
methamphetamine over Martinez-Covarrubias’s chain of custody objections. The
government presented testimony that the substance was sealed in a barrel at the
time it was seized, that the seal was still intact at the time the barrel was delivered
to the lab, and that the numbered label on the barrel corresponded to forms filled
out by field agents at the time of the seizure. Therefore, “sufficient proof [was]
introduced so that a reasonable juror could find in favor of authenticity or
authentication.” United States v. Matta-Ballesteros, 71 F.3d 754, 768 (9th Cir.
1995) (interpreting Fed. R. Evid. 901(a)).
The district court did not err in denying Martinez-Covarrubias’s Motion for
a Judgment of Acquittal under Fed. R. Crim. P. 29. The prosecution’s evidence of
guilt, including that the seized methamphetamine was found in a vehicle that was
owned by Martinez-Covarrubias and driven by a man bearing his identification
papers, was such that “a rational trier of fact could have found the essential
3
elements of the crime beyond a reasonable doubt.” United States v. Lazarenko,
564 F.3d 1026, 1035 (9th Cir. 2009).
Finally, the record is insufficient to review Martinez-Covarrubias’s
ineffective assistance claim on direct appeal. We therefore dismiss the ineffective
assistance claims, noting that Martinez-Covarrubias may bring them in a future
habeas proceeding should he so choose. United States v. Benford, 574 F.3d 1228,
1231 (9th Cir. 2009)
AFFIRMED.
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