                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 22 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50343

                Plaintiff-Appellee,             D.C. No.
                                                3:17-cr-03077-LAB-1
 v.

ADALBERTO MAGANA-GONZALEZ,                      MEMORANDUM*

                Defendant-Appellant.

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

                           Submitted October 16, 2019**
                              Pasadena, California

Before: NGUYEN and MILLER, Circuit Judges, and VITALIANO,*** District
Judge.

      Adalberto Magana-Gonzalez appeals his conviction for being a removed

alien found in the United States, in violation of 8 U.S.C. § 1326, following a jury


      *
             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 Eric N. Vitaliano, United States District Judge for the
Eastern District of New York, sitting by designation.
trial. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      1.     The district court did not abuse its discretion when it permitted DEA

Special Agent Chad Plennes to testify as an expert witness for the government.

Agent Plennes, a 14-year DEA special agent, had conducted numerous drug

trafficking investigations, including work with confidential informants, undercover

agents, and wiretaps. He had spoken with other DEA agents and reviewed DEA

databases regarding means of drug trafficking, including backpack smuggling.

Given his background and experience, Agent Plennes qualified as an expert. And

Agent Plennes did not purport to opine beyond the scope of his expertise. The

geographic limitations of his opinions, and other similar constraints, went to the

weight rather than the admissibility of his testimony. Alaska Rent-A-Car, Inc. v.

Avis Budget Grp., Inc., 738 F.3d 960, 969 (9th Cir. 2013) (noting that “the judge is

supposed to screen the jury from unreliable nonsense opinions, but not exclude

opinions merely because they are impeachable”).

      2.     The district court also did not commit reversible error when it

permitted Agent Plennes to testify regarding the out-of-court statements made by a

Border Patrol agent. Because Magana-Gonzalez did not object at trial, we review

for plain error. United States v. Gomez, 725 F.3d 1121, 1125 (9th Cir. 2013).

“Under a plain error standard, relief is not warranted unless there is: (1) an error;

(2) that was plain; and (3) that affected the defendant’s substantial rights.” United


                                           2
States v. Tran, 568 F.3d 1156, 1163 (9th Cir. 2009). To satisfy the third prong, the

defendant bears the burden of showing that the error was prejudicial, i.e., it

“affected the outcome of the district court proceedings.” United States v. Olano,

507 U.S. 725, 734 (1993). We need not reach the first two prongs because any

error did not affect Magana-Gonzalez’s substantial rights. The challenged

statements had a minimal role in Magana-Gonzalez’s trial, and they were largely

repetitive of Agent Plennes’s permissible testimony. Moreover, the evidence

against Magana-Gonzalez was strong. He conceded the elements of the crime and

relied solely on his affirmative defense of necessity. There were material

inconsistencies in his story over time, and he did not make a strong showing that

his only viable option was to cross into the United States unlawfully.

      3.     Magana-Gonzalez did not suffer a due process violation under Napue

v. Illinois, 360 U.S. 264 (1959). “To establish a Napue violation, a defendant must

show: (1) that the testimony was actually false, (2) that the government knew or

should have known that it was false, and (3) that the testimony was material,

meaning there is a ‘reasonable likelihood that the false testimony could have

affected the judgment of the jury.’” United States v. Renzi, 769 F.3d 731, 751 (9th

Cir. 2014) (citation omitted). First, the district court did not err in concluding that

the challenged testimony failed to satisfy the “actually false” element. The

testimony of Border Patrol Agent Robert Jones corresponded to a reasonable


                                           3
reading of an ambiguous exchange and did not plainly conflict with the transcript

of the conversation. Second, the district court also did not err in finding that

Magana-Gonzalez suffered no prejudice from any potential omissions or

misrepresentations in Agent Jones’s direct testimony. Defense counsel conducted

a thorough cross-examination of Agent Jones, in which he elicited all the omitted

and purportedly mischaracterized statements from the post-arrest colloquy. Thus,

the jury heard those aspects of the post-arrest statement that favored Magana-

Gonzalez’s defense, irrespective of any asserted gaps in Agent Jones’s direct

testimony.

      4.        On this record, we find that cumulative error also provides no basis

for reversal.

      AFFIRMED.




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