                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 16 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10232

              Plaintiff - Appellee,              D.C. No. 1:13-cr-00511-JMS-1

 v.
                                                 MEMORANDUM*
ERNESTO HERNANDEZ,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Hawaii
                  J. Michael Seabright, District Judge, Presiding

                        Argued and Submitted June 9, 2015
                                Honolulu, Hawaii

Before: WARDLAW, BERZON, and OWENS, Circuit Judges.

      Defendant-Appellant Ernesto Hernandez appeals his conviction of one count

of conspiracy to distribute and possess with intent to distribute methamphetamine,

in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A), and one count of




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
possession of methamphetamine with intent to distribute, in violation of 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(C). We affirm.

       1. “We review the district court’s decision to . . . exclude evidence for an

abuse of discretion.” United States v. Edwards, 235 F.3d 1173, 1178 (9th Cir.

2000) (per curiam); see also United States v. Osazuwa, 564 F.3d 1169, 1173 (9th

Cir. 2009). “A district court abuses its discretion when it bases its decision on an

erroneous view of the law or a clearly erroneous assessment of the facts.” United

States v. Morales, 108 F.3d 1031, 1035 (9th Cir. 1997) (en banc). Despite a

district court’s error, where “there is a ‘fair assurance’ of harmlessness . . .[, i.e.,] it

is more probable than not that the error did not materially affect the verdict,” we

will affirm. United States v. Moran, 493 F.3d 1002, 1014 (9th Cir. 2007) (quoting

Morales, 108 F.3d at 1040); see also United States v. Seschillie, 310 F.3d 1208,

1214–16 (9th Cir. 2002). We have found evidentiary rulings not harmless where

the other evidence was “insufficient to support a conviction beyond a reasonable

doubt,” Edwards, 235 F.3d at 1179, or where the excluded evidence “went to the

heart of [the defendant’s] defense.” Moran, 493 F.3d at 1014.

       2. “Rule 608(b) of the Federal Rules of Evidence authorizes courts to permit

inquiry into specific instances of conduct during cross-examination if they are

probative of the character for untruthfulness of the witness—subject . . . to the


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balancing analysis of Rule 403.” United States v. Olsen, 704 F.3d 1172, 1184 n.4

(9th Cir. 2013); see also Fed. R. Ev. 608(b). Rule 403 provides that “[t]he court

may exclude relevant evidence if its probative value is substantially outweighed by

a danger of one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” “As originally proposed[,] Fed. R. Evid. 608(b) prohibited

the admission of remote acts of misconduct”; however, “Congress deleted this

requirement” “[i]n order to encourage flexibility” in the district courts’ evidentiary

rulings. United States v. Jackson, 882 F.2d 1444, 1448 (9th Cir. 1989) (citation

omitted). Thus, though remoteness remains relevant to the probative value of Rule

608(b) evidence, even remote acts of untruthfulness may be found to have

probative value. See id.

        3. We assume, without deciding, that the district court abused its discretion

in precluding the defense from cross-examining Costa about the prior incident of

untruthfulness, which was serious, even if remote. Assuming the district court did

err, however, that error was harmless. The other evidence was more than sufficient

to support Hernandez’s conviction, see Edwards, 235 F.3d at 1179, and Costa’s

credibility did not go “to the heart of” Hernandez’s defense, Moran, 493 F.3d at

1014.


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      Even without Costa’s testimony, there was extensive evidence from which a

reasonable jury could conclude beyond a reasonable doubt that Hernandez was

guilty of both the conspiracy and possession counts. See Edwards, 235 F.3d at

1179. Several law enforcement witnesses testified about the discovery of the

parcel containing methamphetamine and investigators’ controlled delivery of that

parcel to the Waaula Street address where Hernandez was arrested. Co-conspirator

Patrick Duy implicated Hernandez in a years-long methamphetamine importation

scheme. Duy’s testimony that Hernandez had ordered the parcel’s delivery,

opened the parcel, and retrieved its contents corresponded precisely with DEA

Agent Richard Jones’s testimony that Hernandez alone of the four Waaula Street

occupants was found to have fluorescent Sirchie powder—which investigators had

placed on the interior of the parcel only—on his hands. Additionally, government

witness Dina Ali-Bang testified that she had purchased $5,000 of money orders for

Hernandez, and that he had told her they were to send to his family in Mexico; the

jury was entitled to disbelieve Hernandez’s flat denial that he had ever asked Ali-

Bang to do so, particularly given evidence suggesting co-conspirator Joseph

Robaczewski had purchased additional postal money orders around that time, and

that the money orders had all been sent to an address in San Ysidro, California.




                                          4
      The government also benefitted from Hernandez’s own entirely

unpersuasive and shifting testimony. Hernandez could not indicate which part of

the parcel had allegedly been on fire, undermining his explanation for how he

might have gotten Sirchie powder on his hands. He ultimately testified that he had

used his hands only to put out flames on the outside of the parcel, yet DEA Agent

Jones testified he had confirmed there was no Sirchie powder on the exterior of the

package. Hernandez’s claim that he had been burned from putting out the flames

was also contradicted by Jones’s testimony that Hernandez’s hands were not

injured when he inspected them closely for Sirchie powder. Finally, Hernandez

was forced to retract his claim that he had not used methamphetamine for 14 or 15

years and instead admit that he had in fact tested positive for methamphetamine

barely six months before his arrest, which cannot have helped his credibility with

the jury. The recent usage also tended to support Duy’s testimony that Hernandez

had frequently used and sold methamphetamine for years before his arrest.

      If Costa had been the only law enforcement witness, then perhaps

Hernandez’s ability to introduce reasonable doubt as to Costa’s credibility would

have gone “to the heart of [his] defense.” Moran, 493 F.3d at 1014. In this case,

however, Costa’s testimony was extensively corroborated by the testimony of other

law enforcement witnesses. Presumably for that reason, Hernandez’s defense was


                                         5
not premised on undermining the law enforcement witnesses’ testimony. Rather,

Hernandez’s defense attempted to convince the jury that Hernandez was a patsy

who had been set up by Duy and Robaczewski. Impeaching Costa with his prior

incident of untruthfulness, however serious that incident may have been, would

have done little to advance that ultimately unsuccessful defense.

      AFFIRMED.




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