NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 22 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 16-50074
Plaintiff-Appellee, D.C. No.
3:15-cr-01793-LAB-1
v.
JUAN MANUEL CASTRO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted August 8, 2017
Pasadena, California
Before: REINHARDT, KOZINSKI, and CHRISTEN, Circuit Judges.
1. The district court did not abuse its discretion by allowing the government
to reopen. See United States v. McQuisten, 795 F.2d 858, 863 (9th Cir. 1986). The
district court recognized that “reopening a case for the purpose of introducing
overlooked evidence must be done with extreme reluctance,” United States v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Hernandez-Meza, 720 F.3d 760, 764 (9th Cir. 2013) (quoting Eason v. United
States, 281 F.2d 818, 822 (9th Cir. 1960)), and a “judge has to give reasons for
allowing the reopening” that are supported by the record.
The district court correctly found that this case is distinct from
Hernandez-Meza. The district court allowed the government to reopen because the
government relied on the court’s potentially erroneous ruling on Castro’s chain-of-
custody objection. The timing weighed in favor of reopening because Castro had
not yet indicated whether he intended to put on a defense. “One purpose of Rule
29 motions is to alert the court to omitted proof so that, if it so chooses, it can
allow the government to submit additional evidence.” United States v.
Suarez-Rosario, 237 F.3d 1164, 1167 (9th Cir. 2001). Castro’s Rule 29 motion
served exactly this purpose.
2. Any Confrontation Clause error in admitting the custody receipt and
DEA-7 form in this case was harmless beyond a reasonable doubt because there
was sufficient evidence of the chain of custody without these documents. See
United States v. Bustamante, 687 F.3d 1190, 1195 (9th Cir. 2012). In the
government’s initial case-in-chief, Customs and Border Protection Officer Olsen
testified that his canine alerted to Castro’s truck, and Officer Nacpil explained that
he removed twenty bricks of suspected drugs, individually wrapped in plastic
2
tupperware containers, from the truck’s seat. The government introduced
photographs of the suspected drugs that Officer Nacpil took at the time of seizure.
The photographs show the relative size and color of the tupperware containers and
reveal that at least two of the containers had black writing on them.
Although Officer Nacpil did not testify about what he did with the suspected
drugs after photographing them, Drug Enforcement Administration Forensic
Chemist Tarin-Brousseau explained the procedures used to transport suspected
drugs to the lab. Castro did not object when Tarin-Brousseau testified that she
tested the drugs in his case. The government introduced photographs that
Tarin-Brousseau took before conducting testing, which show tupperware
containers of the same approximate size and color as those Officer Nacpil seized.
The photographs also show that at least two of the bricks had black writing on
them. Castro did not introduce any evidence contradicting Tarin-Brousseau’s
testimony or suggesting that any agents listed on the chain-of-custody forms
actually mishandled the drugs.
3. Finally, the district court did not abuse its discretion by overruling
Castro’s hearsay objection to the custody receipt and DEA-7 form. Officer
Nacpil’s photographs documenting the seizure and Tarin-Brousseau’s photographs
documenting the appearance of the drugs before testing show strong physical
3
similarities. Castro did not offer any evidence contradicting the chain of custody
memorialized in the custody receipt and DEA-7 form. Therefore, Castro did not
meet his burden to show that the records are untrustworthy under Federal Rules of
Evidence 803(6) and (8). See United States v. Fryberg, 854 F.3d 1126, 1133 (9th
Cir. 2017).
AFFIRMED.
4