United States v. Cervantes-Cardenas

220 F. App'x 718

Opinion

MEMORANDUM

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1. That defendant was carrying an image of the patron saint of drug smuggling was not “other acts” evidence under Fed.R.Evid. 404(b) because it was “inextricably intertwined” with the drug smuggling charge. United States v. Williams, 291 F.3d 1180, 1189 (9th Cir.2002) (per curiam). The district court did not abuse its discretion under Fed.R.Evid. 403 when it admitted this evidence because it was relevant to establishing defendant’s knowledge and did not cause “the jury [to] responde ] negatively to some aspect of the evidence unrelated to its tendency to make the contested fact more or less probable.” United States v. Savinovich, 845 F.2d 834, 837 (9th Cir.1988). Unlike testimony that a defendant fits the drug courier profile, this evidence would not implicate many innocent individuals based on innocuous facts. United States v. Lui, 941 F.2d 844, 847 (9th Cir.1991) (quoting United States v. Beltran-Rios, 878 F.2d 1208, 1210 (9th Cir.1989)). There is no evidence in the record, for example, that many innocent people carry this image on their person when they cross the Mexican-American border.

2. The government was not required to provide notice of expert rebuttal witnesses. Fed.R.Crim.P. 16(a)(1)(g); United States v. Angelini, 607 F.2d 1305, 1308-09 (9th Cir.1979).

3. Agent Hall’s statement did not violate defendant’s due process rights because the district court promptly granted defendant’s objection and struck the statement from the record.

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.