United States v. Nelson Orellana

FILED
NOT FOR PUBLICATION JUN 26 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-10675

Plaintiff - Appellee, D.C. No. 5:09-cr-00096-LHK-1

v.
MEMORANDUM*
NELSON ORELLANA,

Defendant - Appellant.

Appeal from the United States District Court
for the Northern District of California
Lucy Koh, District Judge, Presiding

Submitted June 9, 2014**
San Francisco, California

Before: SCHROEDER, GRABER, and BYBEE, Circuit Judges.

Nelson Orellana was convicted after a bench trial of one count of possession

with intent to distribute cocaine and one count of conspiracy. At trial he argued

*
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).
that he had been entrapped by a paid, confidential informant. He appeals, claiming

errors at both his trial and his sentencing.

Orellana argues that the district court erroneously admitted hearsay

testimony from an investigating officer concerning statements made by a

confidential informant. Even assuming that the district court erred in admitting

this testimony, any error was harmless. The confidential informant testified and

was subject to extensive cross examination. See United States v. Makhlouta, 790

F.2d 1400, 1402 (9th Cir. 1986) (holding that a hearsay error was harmless where

“[t]he essential elements of the testimony were elsewhere properly admitted in

evidence”). Orellana also argues that the district court erred in allowing the officer

to give the court an overview of the investigation. There was no objection and no

plain error.

Orellana also argues that the district court committed plain error by allowing

a government witness to vouch for the credibility of the confidential informant.

Improper vouching occurs when a witness attests to an informant’s credibility in

the case before the court. See United States v. Stinson, 647 F.3d 1196, 1212 (9th

Cir. 2011). It is not improper, however, for the government to introduce testimony

regarding an informant’s past credibility when the informant’s credibility has been

attacked. See United States v. Nobari, 574 F.3d 1065, 1078 (9th Cir. 2009). It is

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also harmless error to introduce evidence of a witness’s truthfulness when an attack

on the witnesses credibility is “almost certain to be forthcoming.” See United

States v. Shaw, 829 F.2d 714, 717 (9th Cir. 1987). Here, Orellana disputed the

informant’s credibility, and the witness testified only that the informant had

provided reliable information in the past. There was no plain error.

Orellana contends that, at sentencing, he should not have received a two

level sentencing enhancement for obstruction of justice, U.S.S.G. § 3C1.1, because

any false statements he made during his trial were unintentional. There was

sufficient evidence on the record, however, for the district court to conclude that

Orellana acted with “the willful intent to provide false testimony, rather than as a

result of confusion, mistake, or faulty memory.” United States v. Dunnigan, 507

U.S. 87, 94 (1993). The district court did not abuse its discretion in imposing this

enhancement. United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005).

Orellana also argues that the district court committed plain error by adding

two months to his sentence for his failure to accept responsibility. Although

U.S.S.G. § 3E1.1(a) does not provide for such an enhancement, in this case the

district court considered Orellana’s failure to accept responsibility when deciding

how much of a downward departure to grant under 18 U.S.C. § 3553(a). There

was no plain error.

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Orellana’s conviction and sentence are AFFIRMED.