FILED
NOT FOR PUBLICATION APR 10 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50537
Plaintiff - Appellee, D.C. No. 3:12-cr-04321-DMS-1
v.
MEMORANDUM*
CIRILO FLORES-PEREZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued and Submitted March 5, 2015
Pasadena, California
Before: PREGERSON, PARKER**, and NGUYEN, Circuit Judges.
Cirilo Flores-Perez appeals his conviction for attempting to transport or
move an alien within the United States, in violation of 8 U.S.C. §
1324(a)(1)(A)(ii). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Barrington D. Parker, Jr., Senior Circuit Judge for the
U.S. Court of Appeals for the Second Circuit, sitting by designation.
1. Reviewing for abuse of discretion, United States v. Hardrick, 766
F.3d 1051, 1055 (9th Cir. 2014), the district court did not err in admitting evidence
of Flores-Perez’s prior smuggling acts pursuant to Federal Rule of Evidence
404(b). The evidence was probative of Flores-Perez’s knowledge, intent, and plan.
See United States v. Flores-Blanco, 623 F.3d 912, 919–20 & n.4 (9th Cir. 2010).
We recognize that Flores-Perez did not directly contest his involvement in the
charged offense, and instead argued that his conduct did not amount to a
“substantial step.” Nonetheless, knowledge, intent, and plan were still material
issues in the case because they bore on defendant’s guilt of the charged offense,
which the government had to prove beyond a reasonable doubt. See id. at n.4;
United States v. Plancarte-Alvarez, 366 F.3d 1058, 1062–63 (9th Cir. 2004);
United States v. Ramirez-Jiminez, 967 F.2d 1321, 1325–27 (9th Cir. 1992).
Additionally, the prior smuggling acts were sufficiently similar to the
charged offense, see Flores-Blanco, 623 F.3d at 919–20, and were not unfairly
prejudicial under Rule 403, see, e.g., United States v. Pedregon, 520 F. App’x 605,
607–08 (9th Cir. 2013). Finally, in the district court, the government adequately
articulated the “evidential hypothesis by which a fact of consequence may be
inferred from the [404(b)] evidence.” United States v. Mayans, 17 F.3d 1174,
1181 (9th Cir. 1994).
2
2. Next, reviewing for abuse of discretion, United States v. Mejia-Luna,
562 F.3d 1215, 1218–19 (9th Cir. 2009), the district court did not err in admitting
expert testimony regarding the methods and tactics of alien smugglers in the
Calexico area. This evidence was relevant for the purpose of “assist[ing] the jury
in understanding alien smuggling schemes,” see id. at 1219, and explaining Flores-
Perez’s modus operandi, see United States v. Johnson, 735 F.2d 1200, 1202 (9th
Cir. 1984). This evidence was not unfairly prejudicial because it did not implicitly
tie Flores-Perez to a larger alien smuggling operation, cf. United States v. Perez,
272 F. App’x 609, 611 (9th Cir. 2008), or otherwise imply that his criminal
conduct was more serious than indicated by the evidence at trial.
AFFIRMED.
3
FILED
United States v. Flores-Perez, No. 13-50537 APR 10 2015
PREGERSON, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I dissent. Flores-Perez was charged and convicted of attempted
transportation of an illegal alien in violation of 28 U.S.C. § 1324(a)(1)(A)(ii).
Evidence of Flores-Perez’s prior alien smuggling acts should have been excluded
under Federal Rule of Evidence 403. As the majority recognizes, Flores-Perez did
not contest that he was involved in the charged offense; instead, his sole defense
was that his conduct did not amount to a substantial step towards commission of
the crime. Nonetheless, the court permitted the government to admit Flores-
Perez’s prior alien smuggling acts under Rule 404(b) to prove Flores-Perez’s
knowledge, intent, and plan—all uncontested issues. As to these uncontested
issues, Flores-Perez’s prior alien smuggling acts had minimal, if any, probative
value. See United States v. Vavages, 151 F.3d 1185, 1193 (9th Cir. 1998) (noting
that evidence of the defendant’s prior conviction offered to prove knowledge was
minimally probative when the only real issue was identity); United States v.
Romero, 494 Fed. Appx. 809, 814 (9th Cir. 2012) (Watford, J., dissenting).
As to the contested issue in this case—whether Flores-Perez took a
substantial step towards commission of the crime—his prior alien smuggling acts
had no probative value, except as impermissible propensity evidence. Once the
jury learned that Flores-Perez previously was involved in alien smuggling, his
defense was doomed. Thus, the risk of unfair prejudice from his prior alien
smuggling acts was great and substantially outweighed the evidence’s minimal
probative value.