FILED
NOT FOR PUBLICATION DEC 30 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10096
Plaintiff - Appellee, D.C. No. 2:08-CR-00026-JCM-
RJJ
v.
EDWARD J. PEREZ, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted December 10, 2009
San Francisco, California
Before: B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges.
Edward J. Perez appeals his conviction for felony possession of a firearm in
violation of 18 U.S.C. § 922(g)(1), claiming the trial court deprived him of his
right to a fair trial and due process when it admitted testimony describing his flight
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
from the police and resistance to arrest. We affirm. Because the parties are
familiar with the facts and procedural history, we will not recount them here.
Perez’s claims, as his sole issue raised on appeal, that the testimony detailing
his flight from the police and resistance to arrest was so prejudicial that it should
have been excluded under Federal Rule of Evidence 403, and that the admission of
such evidence constitutes reversible error. Rule 403 allows for the exclusion of
relevant evidence “if its probative value is substantially outweighed by the danger
of unfair prejudice.” Fed. R. Evid. 403. This panel reviews the district court’s
decision to admit evidence under Rule 403 for abuse of discretion. United States v.
Curtin, 489 F.3d 935, 943 (9th Cir. 2007) (en banc). The district court need not
recite the Rule 403 test when deciding whether to admit evidence. United States v.
Daly, 974 F.2d 1215, 1217 (9th Cir. 1992).
However, when the appealing party fails to object to the admission of such
evidence at trial, this panel reviews for plain error. United States v. Thompson, 82
F.3d 849, 854–55 (9th Cir. 1996). Under the plain error standard of review, this
panel will not grant relief unless there has been (1) error, (2) that was plain, (3) that
affected substantial rights, and (4) that seriously affects the fairness, integrity or
public reputation of the judicial proceeding. See United States v. Recio, 371 F.3d
1093, 1100 (9th Cir. 2004). A judgment affects substantial rights when it
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“‘affect[s] the outcome of the District Court proceedings.’” United States v.
Pino-Noriega, 189 F.3d 1089, 1097 (9th Cir. 1999) (quoting United States v.
Lussier, 128 F.3d 1312, 1317 (9th Cir. 1997)). Both parties agree that Perez did
not object to the admission of this evidence at trial.
Perez’s argument on appeal fails because (1) the district court did not
err—and, if it did, certainly any error was far from plain—in its admission of the
testimony; and (2) even if there were plain error, it did not affect Perez’s
substantial rights.
1. If Perez wanted to object to the use of his flight as evidence of guilt, he
should have objected to any instructions that may have allowed the jury to infer
guilt from flight. He has raised no such argument on appeal. Perez instead objects
to admission of the evidence of flight qua admission. But it would have been
difficult if not impossible for the jury to understand how the police officers
discovered that Perez was carrying a firearm without narrating the events that led
to that discovery. For that reason, we do not think the district court abused its
discretion in concluding that the probative value of the officers’ testimony
outweighed any prejudice that flowed solely from the testimony itself.
2. Nevertheless, even had such an error occurred, it would not have affected
Perez’s substantial rights, because the admission of the evidence did not affect the
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outcome of the trial. The evidence of Perez’s guilt was overwhelming. Perez
stipulated that he was a convicted felon and that the gun traveled in interstate
commerce. The recovered gun magazine had his print on it. Even absent the
contested testimony, the government offered detailed and credible testimony from
two officers, whose testimony was consistent in describing the events. Both of
these officers testified that they witnessed Perez reach in to his waistband and pull
out a gun. In light of such testimony, evidence, and stipulations, we cannot find
plain error.
Therefore, the conviction is
AFFIRMED.
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