NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 17 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50431
Plaintiff-Appellee, D.C. No.
2:17-cr-00203-DSF-18
v.
DIANA MARGARITA ORTEGA- MEMORANDUM*
GARCIA,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted November 14, 2018**
Pasadena, California
Before: PAEZ, PARKER,*** and CLIFTON, Circuit Judges.
*
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).
***
The Honorable Barrington D. Parker, United States Circuit
Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation.
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Defendant-Appellant Diana Margarita Ortega-Garcia was convicted of
conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846.
Ortega-Garcia now appeals her conviction, claiming that the District Court erred
by: (1) denying her motions under Rule 29 for a Judgment of Acquittal; (2)
allowing the Government’s expert to testify about the structure of drug trafficking
organizations; (3) allowing the jury to return a verdict without first answering the
jury’s question to the court; and (4) finding that Ortega-Garcia perjured herself
and therefore applying a sentencing enhancement. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.1
1. The Government adduced sufficient evidence to prove conspiracy, and
consequently, the Rule 29 motions were properly denied. The Government proved
that Ortega-Garcia crossed the U.S.-Mexico border while her co-conspirators
discussed her progress in real time and after her co-conspirators had described her
as the person who would transport drugs across the border. The Government also
introduced the drugs found in the possession of Ortega-Garcia’s co-conspirators,
which her co-conspirators identified as the drugs that she transported. Further, the
Government proved that Ortega-Garcia was in contact with her co-conspirators
during and after her trip across the border. Finally, the Government introduced
1
Because we affirm the judgement of the District Court, the Government’s
pending Motion to Strike is denied as moot.
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testimony that explained how drug trafficking organizations generally use drug
transporters who are aware that they are carrying drugs.
2. Ortega-Garcia contends that the District Court erred in admitting the
testimony of the Government’s expert because the expert asserted that she was a
“knowing” drug courier and because the expert offered “profile evidence” and
claimed that Ortega-Garcia fit such a profile. The Government’s expert, however,
did not offer an opinion regarding whether Ortega-Garcia had “knowledge” of the
conspiracy or of the fact that she was transporting drugs. Instead, the expert
testified only that, based on his expertise, drug traffickers often have such
knowledge. It was not an abuse of discretion to allow the Government to use expert
testimony for this purpose. E.g., United States v. Gomez, 725 F.3d 1121, 1128–29
(9th Cir. 2013). Nor did the Government’s expert claim that Ortega-Garcia
matched the profile of a knowing drug courier. Rather, the expert testified only to
the general practices of drug trafficking organizations, which included the frequent
use of knowing couriers, and that the use of unknowing couriers was uncommon.
See United States v. Cordoba, 104 F.3d 225, 229–30 (9th Cir. 1997).
3. After a note from the jury was received, but before the District Court
could respond, the jury announced that it had reached a verdict. No juror expressed
disagreement when polled and Ortega-Garcia has presented no evidence that the
jury was in any way coerced into finding her guilty. It was not an abuse of
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discretion for the District Court not to answer the jury’s note under these
circumstances. See United States v. Romero-Avila, 210 F.3d 1017, 1024 (9th Cir.
2000).
4. Ortega-Garcia testified at trial. At sentencing, the District Court found
that she had committed perjury and enhanced her offense level by two levels
pursuant to USSG § 3C1.1. Ortega-Garcia contends that the District Court could
not have found that she perjured herself for the purposes of the USSG § 3C1.1
enhancement because the court relied on her trial testimony when deciding her
post-trial Rule 29 motion. But in deciding the motion, the District Court was not
required to find that her testimony was credible. Instead, the court found that her
“testimony was false . . . and the false testimony was provided with the willful
intent to avoid the natural consequences of her criminal conduct by avoiding
conviction at trial.” Accordingly, the District Court’s two-level obstruction-of-
justice enhancement involved no error of law or abuse of discretion.
AFFIRMED.
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