                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 30 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-50208

              Plaintiff - Appellee,              D.C. No. 3:10-cr-01967-IEG-1

  v.
                                                 MEMORANDUM*
ISAAC CAMACHO,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                 Irma E. Gonzalez, Chief District Judge, Presiding

                           Submitted October 12, 2012**
                               Pasadena, California

Before: PREGERSON and W. FLETCHER, Circuit Judges, and PIERSOL, Senior
District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Lawrence L. Piersol, Senior District Judge for the U.S.
District Court for South Dakota, sitting by designation.
      Defendant-Appellant Isaac Camacho (“Camacho”) was convicted by a jury

on the charge of unlawful procurement of naturalization in violation of 18 U.S.C. §

1425(a). Camacho stated on his Form N-445 citizenship application submitted on

the day he took his citizenship oath that he had not been engaged in criminal drug

activity since he filed his initial Form N-400. Camacho appeals: (1) the denial of

his request for additional discovery to support his vindictive prosecution claim, (2)

the admission of evidence related to his criminal drug activity, and (3) the denial of

his two Federal Rule of Criminal Procedure 29 objections that there was

insufficient evidence to convict him of violating § 1425(a) beyond a reasonable

doubt. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm. We

address Camacho’s arguments in turn.

      1. The district court properly denied Camacho’s request for further

discovery to support his vindictive prosecution claim. Further discovery is futile.

Camacho’s request for further discovery focused on the government’s internal

prosecution memorandum, which is protected attorney work product and thus not

discoverable. Fed. R. Crim. P. 16(a)(2); Hickman v. Taylor, 329 U.S. 495, 510-12

(1947).

      Moreover, the district court properly denied Camacho’s motion to dismiss

for vindictive prosecution. Camacho warranted an initial presumption of


                                          2
vindictive prosecution because the “mere appearance” of vindictiveness is

sufficient to place the burden on the government to rebut. United States v. Jenkins,

504 F.3d 694, 700 (9th Cir. 2007). The government successfully met its burden by

showing independent reasons for the additional charges. United States v.

Gallegos-Curiel, 681 F.2d 1164, 1168 (9th Cir. 1982). The government

established that Camacho’s plea agreement on the drug conviction put him on

written notice six months before he was indicted of the impending charge of

unlawful procurement of naturalization.

      2. The district court properly allowed photographs of drugs and drug

packaging, and the testimony of three DEA agents at Camacho’s trial for unlawful

procurement of naturalization. The district court did not abuse its discretion in

admitting photographs of drugs and drug packaging at trial because the probative

value of the evidence was not outweighed by its prejudicial effect. Fed. R. Evid.

403; United States v. Plancarte-Alvarez, 366 F.3d 1058, 1062-63 (9th Cir. 2004).

Moreover, the government could not have used less prejudicial means to make the

same showing concerning Camacho’s underlying criminal drug activity. United

States v. Sine, 493 F.3d 1021, 1035 (9th Cir. 2007).

      Camacho argued for the first time on appeal that the district court’s

admission of the DEA agents’ testimony was improper. The district court did not


                                          3
err in admitting the DEA agents’ testimony at trial because that testimony was not

plainly erroneous. United States v. Reyes Bosque, 596 F.3d 1017, 1032 (9th Cir.

2010). The testimony showed that Camacho was engaged in criminal drug activity

on three different occasions during the month leading up to his submission of his

Form N-445 citizenship application on the day he took his citizenship oath.

      3. The district court properly denied Camacho’s two Federal Rule of

Criminal Procedure 29 objections in which Camacho contended that there was

insufficient evidence for a jury to find beyond a reasonable doubt that he knowingly

made a false statement on his Form N-445 citizenship application. The prosecution

offered evidence showing that Camacho understands English, that he completed the

Form N-445 himself, and that he had engaged in criminal activity before submitting

the Form N-445. We must determine whether, “after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” United States v.

Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (internal quotation marks and

citations omitted) (emphasis in original). The evidence was sufficient.

      AFFIRMED.




                                          4
