United States v. Ramiro Ponce-Galvan

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 29, 2024
• Docket: 22-50114
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 29 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-50114

Plaintiff-Appellee, D.C. No. 3:21-cr-02227-H-1

v. MEMORANDUM* RAMIRO PONCE-GALVAN,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding

Submitted March 27, 2024** Pasadena, California

Before: RAWLINSON, LEE, and BRESS, Circuit Judges.

Ramiro Ponce-Galvan appeals his conviction for one count of attempted

reentry of a removed alien, in violation of 8 U.S.C. § 1326. We have jurisdiction

under 28 U.S.C. § 1291. We affirm.

1. Ponce-Galvan argues that his statute of conviction violates the Equal

* 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). Protection Clause because it was enacted with the intent to discriminate against

Mexicans. We recently rejected an identical argument in United States v. Carrillo-

Lopez, 68 F.4th 1133 (9th Cir. 2023). Accordingly, Ponce-Galvan’s constitutional

challenge fails.

2. Ponce-Galvan next argues that the district court improperly excluded a

photograph of Ponce-Galvan’s deceased brother under Federal Rule of Evidence

403. We “review the district court’s exclusion of evidence for abuse of discretion.”

United States v. Espinoza, 880 F.3d 506, 511 (9th Cir. 2018). A district court abuses

its discretion if its ruling is “illogical, implausible, or without support in inferences

that may be drawn from the facts in the record.” United States v. Hinkson, 585 F.3d

1247, 1263 (9th Cir. 2009) (en banc).

Under Rule 403, “relevant evidence may be excluded, among other reasons,

if ‘its probative value is substantially outweighed by the danger of unfair prejudice.’”

United States v. LeMay, 260 F.3d 1018, 1027 (9th Cir. 2001) (quoting Fed. R. Evid.

403). We have held that “[a] district court’s decision to exclude or admit evidence

under Rule 403 is reviewed with considerable deference.” United States v. Fleming,

215 F.3d 930, 938 (9th Cir. 2000) (internal quotation marks and brackets omitted)

(quoting United States v. Hankey, 203 F.2d 1160, 1167 (9th Cir. 2000)).

The district court’s exclusion of the photograph was not an abuse of

discretion. Ponce-Galvan argued that the photograph undermined his specific intent

2 to reenter the United States without governmental consent because he was trying to

turn himself in to seek asylum. See United States v. Castillo-Mendez, 868 F.3d 830,

836 (9th Cir. 2017). But the photo bears a tenuous connection to Ponce-Galvan’s

specific intent on the night of his unlawful reentry into the United States, which

occurred over a year after his brother’s death. Regardless, Ponce-Galvan was able

to introduce evidence about his brother’s death through his sister’s testimony, as

well as the fact that he was in possession of his brother’s death certificate when he

was arrested and had a fear of returning to Mexico. These “evidentiary alternatives”

supported Ponce-Galvan’s theory that he had a fear of returning to Mexico. See Old

Chief v. United States, 519 U.S. 172, 184 (1997). Ponce-Galvan was also permitted

to call witnesses to testify about the photograph and how they had shown it to Ponce-

Galvan.

In addition to its limited probative value, the district court could conclude that

the photo posed a risk of unfair prejudice. Fed. R. Evid. 403. “‘Unfair prejudice’ is

an ‘undue tendency to suggest decision on an improper basis, commonly, though not

necessarily, an emotional one.’” United States v. Anderson, 741 F.3d 938, 950 (9th

Cir. 2013) (quoting Hankey, 203 F.3d at 1172). The photograph is graphic, and the

district court could conclude it risked eliciting an improper emotional response from

the jury. See United States v. Hitt, 981 F.2d 422, 424 (9th Cir. 1992) (“Where the

evidence is of very slight (if any) probative value, it’s an abuse of discretion to admit

3 it if there’s even a modest likelihood of unfair prejudice or a small risk of misleading

the jury.”).

The district court’s Rule 403 ruling on the photograph does not reflect legal

error. The district court did not solely rely on the photograph’s graphic nature in

deciding to exclude it and sufficiently balanced the Rule 403 factors in its ruling.

Although the district court’s analysis was brief, “[a] trial judge need not provide a

‘detailed’ or ‘mechanical’ recitation of the Rule 403 factors.” United States v.

Martinez, 182 F.3d 1107, 1112 (9th Cir. 1999) (quoting United States v. Mayans, 17

F.3d 1174, 1183 (9th Cir. 1994)).

Finally, even if the district court erred in not admitting the photograph, any

error was harmless. See United States v. Torres, 794 F.3d 1053, 1063 (9th Cir. 2015)

(“A non-constitutional error requires reversal unless there is a ‘fair assurance’ of

harmlessness, or stated another way, unless ‘it is more probable than not that the

error did not materially affect the verdict.’” (quoting United States v. Seschillie, 310

F.3d 1208, 1214 (9th Cir. 2002))). The exclusion of the photograph did not infringe

on Ponce-Galvan’s ability to present a defense. And in this case, the evidence that

Ponce-Galvan intended to enter the United States unlawfully was overwhelming

based on, among other things, his scaling the border fence with a ladder, his flight

from Border Patrol officers, and his incriminating text message.

AFFIRMED.