United States v. Gilberto Martinez-Hernandez

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 2 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50336

Plaintiff-Appellee, D.C. No. 3:17-cr-04141-BAS-1 v.

GILBERTO MARTINEZ-HERNANDEZ, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Cynthia A. Bashant, District Judge, Presiding

Submitted May 13, 2020** Pasadena, California

Before: WARDLAW, COOK,*** and HUNSAKER, Circuit Judges.

Gilberto Martinez-Hernandez appeals his conviction for knowingly

importing cocaine, arguing the district court abused its discretion by admitting

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 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 Deborah L. Cook, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. evidence at trial of the $2,283 he had in his pocket at his arrest and the retail value

of four kilograms of cocaine. He also seeks remand for an evidentiary hearing

regarding whether the prosecutor engaged in misconduct related to the cash

evidence. We have jurisdiction under 28 U.S.C. § 1291. We affirm the conviction

and decline to remand for an evidentiary hearing.

Even if the district court abused its discretion in admitting the challenged

evidence, the error was harmless because “it is more probable than not that [it] did

not materially affect the verdict.” United States v. Liera, 585 F.3d 1237, 1244 (9th

Cir. 2009) (citing United States v. Seschillie, 310 F.3d 1208, 1214 (9th Cir. 2002)).

The Government presented substantial evidence of Martinez-Hernandez’s guilt

separate from the evidence of the cash or the cocaine’s retail value. Cf. id. at 1244–

45. Moreover, neither party argued the import of the cash evidence to the jury, and

Martinez-Hernandez does not challenge the admission of the cocaine’s wholesale

value on appeal. Thus, considering both the individual and cumulative effects of

the challenged evidence, we conclude there is no reversible error.

We also conclude that remand for an evidentiary hearing is unwarranted.

Martinez-Hernandez argues the prosecutor had a Brady obligation to correct the

district court’s proffered theory of relevance of the cash evidence, but he has not

established that any such duty existed. See Brady v. Maryland, 373 U.S. 83, 87

(1963). And even if he had, again, we conclude any error was harmless.

2 The district court’s theory that the cash was relevant to show possible

prepayment for drug trafficking could not have materially affected the fairness of

the trial where the theory was proffered outside the presence of the jury, and the

Government did not present or argue it to the jury. See United States v. Alcantara-

Castillo, 788 F.3d 1186, 1190–91 (9th Cir. 2015). And, as just discussed, it is not

probable that admission of the cash evidence materially affected the verdict given

the force of the evidence against Martinez-Hernandez. Cf. id. at 1198.

AFFIRMED.