                            NOT FOR PUBLICATION                             FILED
                     UNITED STATES COURT OF APPEALS                          JAN 31 2017

                                                                         MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                          U.S. COURT OF APPEALS




UNITED STATES OF AMERICA,                         No.    15-10261

              Plaintiff-Appellee,                 D.C. No.
                                                  4:14-cr-02037-RCC-DTF-1
 v.

ABELARDO NIEBLA-TORRES,                           MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Raner C. Collins, Chief Judge, Presiding

                     Argued and Submitted September 13, 2016
                             San Francisco, California

Before: W. FLETCHER, CHRISTEN, and FRIEDLAND, Circuit Judges.

      Mexican national Abelardo Niebla-Torres (Niebla) appeals his conviction

for conspiracy to possess with intent to distribute marijuana, in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(D), and 846. The district court found Niebla guilty

after a bench trial. On appeal, Niebla argues that the district court erred by:



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
(1) permitting the prosecution to authenticate items of physical evidence with

hearsay testimony; and (2) admitting evidence of a prior smuggling arrest under

Federal Rule of Evidence 404(b). We have jurisdiction under 28 U.S.C. § 1291,

and we affirm the district court’s rulings.1

      1. Niebla contends that the district court erred in two ways when it allowed

the prosecution to authenticate Exhibits 14 (a photo of binoculars and two-way

radios) and 55 (binoculars) with hearsay testimony. First, he maintains that the

admission of these exhibits violated Federal Rules of Evidence 801 and 802

because the government laid its foundation through Agent Colella’s statement that

Agent Gallegos told him where the items were recovered. Under Federal Rule of

Evidence 104(a), “the court is not bound by evidence rules, except those on

privilege,” when deciding “any preliminary question about whether . . . evidence is

admissible.” See also Fed. R. Evid. 1101(d)(1); Bourjaily v. United States, 483

U.S. 171, 178 (1987). Thus, the district court was not bound by Rules 801 and 802

when it decided whether there was a proper foundation for Exhibits 14 and 55.

      Next, Niebla argues that Agent Colella’s testimony violated his

constitutional rights under the Confrontation Clause because he was denied the


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            Niebla also argues, under the corpus delicti doctrine, that the
government did not introduce sufficient evidence to corroborate his confession.
We address this claim in an opinion filed concurrently with this disposition.
                                           2
opportunity to cross-examine Agent Gallegos about where he found the binoculars

and two-way radios. Because Niebla did not raise a Confrontation Clause

objection at trial, we review for plain error. See United States v. Tran, 568 F.3d

1156, 1163 (9th Cir. 2009). We conclude that even if the district court erred, the

error did not affect Niebla’s substantial rights because the government properly

authenticated the evidence. See id.

      A proponent may authenticate an item of physical evidence by asserting that

it “is relevant because it was found at the scene of the crime,” and proffering

testimony from a witness with knowledge “that the [item] offered is the [item]

which was found there.” 2 MCCORMICK ON EVID. § 213 (7th ed. 2016). The

binoculars were relevant because Agents Colella and Gallegos found them with

Niebla on the mountain, and their presence made it more likely that Niebla was a

scout. Agent Colella was a witness with knowledge: he was present when Agent

Gallegos found the binoculars, he photographed them on the mountain, and he

logged them into evidence. Agent Colella recognized Exhibit 55 as the binoculars

he and Agent Gallegos retrieved. This testimony was “sufficient to support a

finding that the item is what the proponent claims it is.” See Fed. R. Evid. 901(a).

      The government likewise did not need Agent Gallegos’s statement about

where he found the radios to properly authenticate a photograph of them. See


                                          3
United States v. Brooks, 772 F.3d 1161, 1171 n.3 (9th Cir. 2014). The government

offered Exhibit 14 to illustrate Agent Colella’s testimony about the items he found

on the mountain. A photograph offered for illustrative purposes “is authenticated

if the witness testifies that the photograph is a correct and accurate representation

of relevant facts personally observed by the witness.” 2 MCCORMICK ON EVID.

§ 215 (7th ed. 2016).

      Agent Colella testified that: (1) Exhibit 14 depicted the items he and Agent

Gallegos found on the mountaintop on the day of the arrest; (2) he personally saw

the radios and binoculars that day; and (3) the photograph was “a fair and accurate

representation of the items.” The government presented expert-witness testimony

to link the items in the photograph with its theory that Niebla was a scout for a

drug-trafficking organization. This testimony was sufficient to establish the

relevance and authenticity of the Exhibit 14 photograph.

      2. Niebla also argues that the district court erred by admitting evidence that

he was previously arrested for scouting under Federal Rule of Evidence 404(b).

“Evidentiary rulings admitting evidence of other acts under Federal Rule of

Evidence 404(b) are reviewed for an abuse of discretion, but whether the evidence

of other acts is relevant to the crime charged is reviewed de novo.” United States

v. Livingston, 725 F.3d 1141, 1148 (9th Cir. 2013) (quoting United States v.


                                           4
Castillo, 181 F.3d 1129, 1134 (9th Cir. 1999)). “The proponent of the Rule 404(b)

evidence must show that the evidence ‘(1) proves a material element of the offense

for which the defendant is now charged, (2) if admitted to prove intent, is similar to

the offense charged, (3) is based on sufficient evidence, and (4) is not too remote in

time.’” United States v. Hardrick, 766 F.3d 1051, 1055 (9th Cir. 2014) (quoting

United States v. Ramirez-Robles, 386 F.3d 1234, 1242 (9th Cir. 2004)).

      The district court admitted evidence of Niebla’s prior arrest to prove

knowledge, intent, and lack of mistake. Knowledge and intent are elements of

conspiracy to possess with intent to distribute marijuana. Tran, 568 F.3d at 1164.

Niebla put these elements, along with lack of mistake, at issue by arguing that he

was present on the mountain without knowing why he was there or what work he

had been hired to do. His prior arrest for a smuggling offense in the same corridor

tends to prove that Niebla understood the purpose and role of a scout in a

smuggling operation, which goes directly to his knowledge of an unlawful

conspiracy and his intent to join. See United States v. Ramos-Atondo, 732 F.3d

1113, 1123 (9th Cir. 2013). There were also substantial similarities between the

two arrests: the 2011 events took place close to the mountain where agents

apprehended Niebla in 2014, and he possessed some of the same items.




                                          5
      There was sufficient evidence that the prior arrest occurred to support

admission under Rule 404(b) because Agent Paco testified that he arrested Niebla

for scouting activities in 2011, and described the circumstances surrounding the

arrest. See United States v. Basinger, 60 F.3d 1400, 1408 (9th Cir. 1995)

(explaining that “testimony by the searching and arresting officer is sufficient

evidence that the prior act occurred”). The 2011 arrest, which happened three

years before Niebla was arrested for the charged offense, was also not “too remote

in time.” See id.

      Finally, the district court did not abuse its discretion by declining to exclude

Niebla’s 2011 arrest under Federal Rule of Evidence 403. The probative value of

the arrest was high, and the danger of unfair prejudice, confusion, or delay was

relatively low. As explained, Niebla put his knowledge and intent at issue by

claiming that he was merely an innocent bystander unaware of any criminal

activity. The district court held a bench trial, and judges are less likely than juries

to decide an issue on a purely emotional basis, or to conclude, based on a

defendant’s prior bad acts, that he or she is guilty of the charged crime. Cf.

E.E.O.C. v. Famer Bros. Co., 31 F.3d 891, 898 (9th Cir. 1994) (noting “in a bench

trial, the risk that a verdict will be affected unfairly and substantially by the

admission of irrelevant evidence is far less than in a jury trial”).


                                            6
      We find no error in the district court’s reasoning and we AFFIRM the

district court’s evidentiary rulings.

      Each party shall bear its own costs on appeal.

      AFFIRMED.




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