NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 24 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10212
Plaintiff-Appellee, D.C. No.
4:19-cr-01094-JGZ-JR-1
v.
ISAIAS DELGADO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Argued and Submitted April 8, 2024
Phoenix, Arizona
Before: HAWKINS, BADE, and DESAI, Circuit Judges.
Isaias Delgado challenges his jury trial conviction and sentence on one count
of dealing firearms without a license, in violation of 18 U.S.C. § 922(a)(1)(A). We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. On de novo review, we conclude Delgado has not demonstrated that the
government withheld evidence in violation of Brady v. Maryland, 373 U.S. 83
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
(1963). See United States v. Wilkes, 662 F.3d 524, 534 (9th Cir. 2011). Delgado
has not shown that either Exhibit 97 or the border crossing chart was “favorable to
the defense and material to [his] guilt or punishment.” See Smith v. Cain, 565 U.S.
73, 75 (2012). It is undisputed that Delgado already possessed the audio recording
of the conversation transcribed as Exhibit 97. See Wilkes, 662 F.3d at 535
(“[E]vidence is material if it is of a different character than evidence already known
to the defense.” (internal quotation marks and citation omitted)). Further, the record
demonstrates that the border crossing summary was not relevant to any issues at trial
and was disclosed during the presentence investigation phase at a time when it could
still be used during the sentencing hearing. See United States v. Gordon, 844 F.2d
1397, 1403 (9th Cir. 1988) (disclosure “must be made at a time when disclosure
would be of value to the accused” (quoting United States v. Davenport, 753 F.2d
1460, 1462 (9th Cir. 1985))).
2. Delgado also has failed to show any evidentiary error. If a defendant
has preserved an evidentiary objection, we review the decision to admit or exclude
evidence for abuse of discretion. See United States v. Wells, 879 F.3d 900, 914 (9th
Cir. 2018). If the defendant failed to raise the objection below, we review for plain
error. See id. at 925.
a. The district court did not plainly err by admitting into evidence
several firearms seized by agents of the Bureau of Alcohol, Tobacco, Firearms, and
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Explosives (“ATF”). See id. The record does not support Delgado’s contention that
the government tampered with the evidence. Rather, Agent Cunningham testified
that three of the firearms may have been assembled after ATF agents seized the
component parts and all firearms were rendered safe for storage; the firearms
otherwise remained in the condition in which ATF agents found them at the time of
seizure.
b. The district court did not abuse its discretion by overruling
Delgado’s hearsay objection to certain portions of Agent Bort’s testimony regarding
his conversation with Delgado. Nor has Delgado established, for purposes of de
novo review, that admission of those statements violated his rights under the
Confrontation Clause. See United States v. Brooks, 772 F.3d 1161, 1167 (9th Cir.
2014). Delgado’s statements were admissible in the government’s case-in-chief as
non-hearsay under Federal Rule of Evidence 801(d)(2)(A). Delgado has not shown
that the statements of the GunBroker.com dealer were testimonial in nature or
offered for the truth of the matter asserted. See Lucero v. Holland, 902 F.3d 979,
989 (9th Cir. 2018); United States v. Arteaga, 117 F.3d 388, 396 (9th Cir. 1997).
Even assuming Delgado could establish that the statements of Roman Noble were
inadmissible hearsay, any error in allowing Agent Bort to testify about those
statements was clearly harmless, as Roman Noble also testified at trial about his
conversation with Delgado and was cross-examined by defense counsel. See
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Brooks, 772 F.3d at 1171 (court may sua sponte consider issue of harmlessness
where, among other things, the harmlessness of an error is certain).
c. The district court similarly did not abuse its discretion by
sustaining the government’s hearsay objection when Delgado attempted to have
Agent Bort testify about Delgado’s own statements. See United States v. Liera-
Morales, 759 F.3d 1105, 1111 (9th Cir. 2014). Agent Bort’s direct testimony
regarding Delgado’s statements that a particular rifle had a jamming issue was not
misleading as to whether Delgado claimed to have fired the gun. Consequently, it
did not trigger the rule of completeness, see id., and Delgado identifies no other basis
on which the statements were admissible.
d. Finally, the district court did not abuse its discretion in
connection with certain portions of Agent Cunningham and Agent Bort’s testimony.
To the extent that Agent Cunningham’s statements at trial involved lay opinion
testimony about certain “red flags” in her investigation, income thresholds for
dealers, and her observations of Delgado’s shooting range video, those statements
were permissibly based on her involvement in the investigation. See United States
v. VonWillie, 59 F.3d 922, 929 (9th Cir. 1995). And although the district court
initially overruled Delgado’s objection to Agent Bort’s testimony regarding
Delgado’s familiarity with certain laws, the district court ultimately struck the entire
line of questioning and instructed the jury not to consider the testimony.
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3. Reviewing de novo Delgado’s claim that the government engaged in
improper burden shifting, we conclude that the government’s single question about
whether Delgado had produced certain records of sale was not so prejudicial as to
render his trial fundamentally unfair. Hein v. Sullivan, 601 F.3d 897, 912–13 (9th
Cir. 2010). The district court immediately reminded the jury of the government’s
burden of proof, sustained defense counsel’s objection, and issued a curative
instruction. See id.
4. Nor did the district court abuse its discretion in applying a firearms
trafficking sentencing enhancement under U.S.S.G. § 2K2.1(b)(5). See United
States v. Parlor, 2 F.4th 807, 811 (9th Cir. 2021). The government presented
additional evidence regarding firearms trafficking during the sentencing hearings,
and the district court permissibly made additional factual findings when applying
the enhancement. See id. at 814–15. We decline to consider Delgado’s remaining
arguments, which he raised for the first time in his reply brief. See United States v.
Romm, 455 F.3d 990, 997 (9th Cir. 2006).
5. Finally, we decline to consider on direct review Delgado’s claim that
his trial counsel rendered ineffective assistance. See United States v. Velte, 331 F.3d
673, 681 (9th Cir. 2003).
AFFIRMED.
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