United States v. Jorge Nunez

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 15, 2019
• Docket: 17-50115
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 15 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50115

Plaintiff-Appellee, D.C. No. 5:16-cr-00120-JFW-1 v.

JORGE LUIS NUNEZ, AKA Jorge L. MEMORANDUM* Nunez,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California John F. Walter, District Judge, Presiding

Argued and Submitted February 6, 2019 Pasadena, California

Before: WARDLAW and BEA, Circuit Judges, and MURPHY,** District Judge.

Jorge Luis Nuñez appeals the district court’s denial of an evidentiary hearing

on the reliability of a canine alert that identified a bag in Nuñez’s possession

containing approximately 1648 grams of methamphetamine. We have jurisdiction

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stephen Joseph Murphy III, United States District Judge for the Eastern District of Michigan, sitting by designation. under 28 U.S.C. § 1291. We affirm.

1. Nuñez contends that the district court’s denial of an evidentiary

hearing violated the Supreme Court’s holding in Florida v. Harris, 568 U.S. 237

(2013), that “[a] defendant . . . must have an opportunity to challenge . . . evidence

of a dog’s reliability, whether by cross-examining the testifying officer or by

introducing his own fact or expert witnesses.” Id. at 247. Here, however, Nuñez

failed to identify a factual dispute as to the reliability of the canine’s alert in his

moving papers. See United States v. Howell, 231 F.3d 615, 620 (9th Cir. 2000)

(“An evidentiary hearing on a motion to suppress need be held only when the

moving papers allege facts with sufficient definiteness, clarity, and specificity to

enable the trial court to conclude that contested issues of fact exist.”); see also

Harris, 568 U.S at 247 (“The court should allow the parties to make their best

case, consistent with the usual rules of criminal procedure.”). Because Nuñez

failed to identify a factual dispute as to the canine’s reliability in his moving

papers, the district court did not abuse its discretion in denying him an evidentiary

hearing on the reliability of the canine’s alert.1

1 Although Nuñez argues that he challenged the reliability of the canine’s alert in his initial motion to suppress, Nuñez does not argue on appeal that this motion identified a factual dispute warranting an evidentiary hearing. Moreover, on appeal Nuñez abandoned the argument made in his reply to the government’s opposition that the canine’s alert at the driver’s side door created a factual dispute as to the alert’s reliability. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.

2 2. Nuñez further contends that he has demonstrated good cause for

presenting a late defense, objection, or request under Federal Rule of Criminal

Procedure 12(c)(3). But Nuñez failed to move for leave to file an untimely motion

to suppress under Federal Rule of Criminal Procedure 12(c)(3). Because Nuñez

failed to seek this relief before the district court, it cannot form the basis for relief

on appeal. See United States v. Belden, 957 F.2d 671, 674–75 (9th Cir. 1992)

(arguments not made to the district court are not preserved for appellate review).

AFFIRMED.

1999) (“[O]n appeal, arguments not raised by a party in its opening brief are deemed waived.”).