NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 29 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-50227
Plaintiff - Appellee, D.C. No. 3:07-cr-00486-H-2
v.
MEMORANDUM *
RAUL BECERRA-CURIEL,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted March 4, 2010
Pasadena, California
Before: KOZINSKI, Chief Judge, W. FLETCHER, Circuit Judge and
TUNHEIM,** District Judge.
The district court did not abuse its discretion by admitting evidence of
defendant’s prior arrest for alien smuggling. See Fed. R. Evid. 404(b); United
States v. Ramirez-Jiminez, 967 F.2d 1321, 1325–27 (9th Cir. 1992).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
page 2
Nor did the district court err by denying defendant’s Rule 29 motions on
Count 1 of the indictment. (Defendant does not challenge the sufficiency of the
evidence supporting his conviction on Count 2.) The testimony of the material
witness and the 404(b) evidence are sufficient to support the conclusion that
defendant knew or recklessly disregarded the fact the material witness “ha[d] not
received prior official authorization to come to, enter, or reside in the United
States.” 8 U.S.C. § 1324(a)(2). That evidence is also sufficient to support a
finding that defendant knew the material witness had been hidden in the car as part
of an alien smuggling operation “for the purpose of commercial advantage or
private financial gain.” Id. § 1324(a)(2)(B)(ii). And that evidence, combined with
the testimony of the Customs and Border Protection officers, would also allow a
rational juror to conclude beyond a reasonable doubt that defendant took at least
one affirmative step intending to aid or encourage that operation, whether at the
“load house” or the border. There is sufficient evidence to support defendant’s
conviction for aiding and abetting a violation of 8 U.S.C. § 1324(a)(2)(B)(ii). See
United States v. Lopez-Martinez, 543 F.3d 509, 515–16 (9th Cir. 2008).
AFFIRMED.