United States v. Gilbert Flores

FILED
NOT FOR PUBLICATION FEB 26 2013

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. 11-50431

Plaintiff - Appellee, D.C. No. 3:09-cr-04426-BEN-1

v.
MEMORANDUM *
GILBERT FLORES,

Defendant - Appellant.

Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding

Argued and Submitted February 5, 2013
Pasadena, California

Before: O’SCANNLAIN, TROTT, and CLIFTON, Circuit Judges.

Gilbert Flores appeals his conviction of importing methamphetamine into

the United States. He challenges the district court’s decisions to exclude evidence

of his wealth and admit the government’s expert witness testimony on “blind

mules.” We affirm.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Flores has not shown that he ever made an offer of proof of wealth evidence,

and without any offer of proof, we cannot review the exclusion of that evidence.

See Fed. R. Evid. 103(a)(2); United States v. Morlan, 756 F.2d 1442, 1447 (9th

Cir. 1985). Even if he had made an offer of proof, he never objected to the district

court’s decision to exclude wealth evidence at trial, so we could at most review

that decision for plain error. United States v. Valenzuela, 495 F.3d 1127, 1130 (9th

Cir. 2007). Any error was not plain. The district court relied on United States v.

Mitchell, where we held that evidence of a defendant’s poverty was inadmissible to

prove motive to commit a robbery because it was unfairly prejudicial. 172 F.3d

1104, 1108–10 (9th Cir. 1999). Mitchell may not lend much support to excluding

evidence of wealth because wealth evidence, unlike poverty evidence, does not

entail the same risk of unfair prejudice to a criminal defendant. Error is not plain,

however, “where there is no controlling authority on point and where the most

closely analogous precedent leads to conflicting results.” United States v. De La

Fuente, 353 F.3d 766, 769 (9th Cir. 2003). Because there is no controlling

authority on point, and Mitchell does not make clear whether evidence of wealth is

inadmissible, the exclusion was not plain error.

We also affirm the district court’s decision to admit expert testimony on

“blind mules.” We review a district court’s decision to admit expert testimony for

2
abuse of discretion, United States v. Calderon-Segura, 512 F.3d 1104, 1109 (9th

Cir. 2008), as well as its evidentiary decisions. United States v. Alvarez, 358 F.3d

1194, 1205 (9th Cir. 2004). The district court did not abuse its discretion in

concluding that the blind mule testimony was permissible under Federal Rules of

Evidence 702 and 704. We rejected the argument that these rules prohibited this

type of testimony in United States v. Murillo, 255 F.3d 1169, 1177-78 (9th Cir.

2001), overruled on other grounds as recognized in United States v. Mendez, 476

F.3d 1077, 1080 (9th Cir. 2007). Nor did the district court abuse its discretion in

determining that the testimony was not unduly prejudicial under Federal Rule of

Evidence 703. The evidence was probative in light of Flores’s theory that he was

an unknowing courier, and it was not significantly more prejudicial than the

testimony in similar cases where we upheld such testimony against attacks under

Rule 703. See, e.g., United States v. Sepulveda-Barraza, 645 F.3d 1066, 1072–73

(9th Cir. 2011). Finally, it was not an abuse of discretion to limit questions on

cross-examination of the witness that called for inadmissible hearsay. See In re

Hanford Nuclear Reservation Litig., 534 F.3d 986, 1012 (9th Cir. 2008).

At oral argument, counsel for the government acknowledged that evidence

that blind mules exist came to the attention of his office after this trial came to a

close. He also represented that, to his knowledge, the office was no longer putting

3
on testimony to the effect that blind mules do not exist. We trust that the

government will not submit expert testimony that it knows is inaccurate.

AFFIRMED.