FILED
NOT FOR PUBLICATION JAN 29 2010
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. 08-50508
Plaintiff - Appellee, D.C. No. 3:07-cr-02138-IEG-1
v.
MEMORANDUM *
OSCAR JAVIER BELTRAN-LASTRA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Argued and Submitted January 14, 2010
Pasadena, California
Before: SCHROEDER, CANBY and McKEOWN, Circuit Judges.
Oscar Beltran-Lastra appeals his jury conviction and sentence for
importation of marijuana in violation of 21 U.S.C. §§ 952 and 960, and possession
with intent to distribute in violation of 21 U.S.C. § 841(a)(1). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
With respect to Beltran-Lastra’s challenge to the admission of other acts
evidence under Federal Rules of Evidence 403 and 404(b), the government has
made strong arguments as to the materiality of Beltran-Lastra’s prior border
crossings, in conjunction with the evidence of his demeanor. Judge Gonzales
appropriately admitted this evidence. Yet even assuming that the court erred in
admitting this evidence, this error was harmless in light of the other evidence of
Beltran-Lastra’s culpability. See United States v. Romero, 282 F.3d 683, 688 (9th
Cir. 2002).
Because Beltran-Lastra failed to preserve a number of his objections in
district court, we review them for plain error. United States v. Crawford, 239 F.3d
1086, 1091 (9th Cir. 2001). The admission of Officer Aguilar’s testimony as to
Beltran-Lastra’s demeanor and prior statements did not constitute plain error
because it did not cause prejudice to Beltran-Lastra’s substantial rights. See
United States v. Perez, 116 F.3d 840, 846 (9th Cir. 1997) (en banc).
Nor did the district court abuse its discretion in admitting Officer Taylor’s
testimony regarding the condition of Beltran-Lastra’s bus as the lack of disclosure
under Federal Rule of Criminal Procedure 16(a)(1)(G) caused Beltran-Lastra no
prejudice. See United States v. Figueroa-Lopez, 125 F.3d 1241, 1247 (9th Cir.
1997). Contrary to the argument in the opening brief, Officer Taylor did not testify
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to Beltran-Lastra’s mental state in violation of Federal Rule of Evidence 704 or as
an expert with regard to the condition of the bus and the suitability of the bus for
commercial use.
Beltran-Lastra also challenges Judge Burns’ instructions to the grand jury.
Indeed, improper characterization and praise of the U.S. Attorney can result in
reversible error. We caution against the court’s placing a stamp of approval on the
prosecutor, such as the court’s statement here that “my experience is that the
prosecutors don’t play hide-the-ball.” Although the court may have been
somewhat overzealous in its praise of the government, the district court’s
instructions regarding the U.S. Attorney’s duty to present exculpatory evidence did
not rise to the level of structural error. See United States v. Isgro, 974 F.2d 1091,
1094 (9th Cir. 1992). Nor do all of the alleged errors, taken together, amount to
reversible cumulative error.
Finally, the district court did not commit clear error in denying Beltran-
Lastra’s request for a minor role adjustment under U.S.S.G. § 3B1.2 where
Beltran-Lastra was the sole driver and occupant of a vehicle containing a large
quantity of drugs. See United States v. Rosales-Rodriguez, 289 F.3d 1106, 1112
(9th Cir. 2002).
AFFIRMED.
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