                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             AUG 06 2014

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

UNITED STATES OF AMERICA,                        No. 13-50194

              Plaintiff - Appellee,              D.C. No. 3:12-cr-04377-JLS-1

  v.
                                                 MEMORANDUM*
NELSON OSWALDO CAMPOS-
NUNEZ,

              Defendant - Appellant.


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

                        Argued and Submitted July 8, 2014
                              Pasadena, California

Before: BERZON and CLIFTON, Circuit Judges, and ROSENTHAL, District
Judge.**

       Nelson Oswaldo Campos-Nunez appeals from his conviction of importation

of approximately 123.6 pounds of marijuana in violation of §§ 21 U.S.C. 952, 960.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Lee H. Rosenthal, District Judge for the U.S. District
Court for the Southern District of Texas, sitting by designation.
Campos-Nunez contends that the district court erred in 1) permitting auto

mechanic Ross Butler to testify as an expert as to the probable effects of the

marijuana-filled containers in the tires on the car’s operability; 2) allowing the

prosecution to assert in closing arguments that Campos-Nunez had been

“recruited” by a “drug organization”; and 3) admitting Officer Hernandez’s

demeanor testimony.

      1. The district court abused its discretion in admitting Butler’s expert

testimony without making the requisite findings of reliability under Federal Rule of

Evidence 702. See Daubert v. Merrell Dow Pharm., 509 U.S. 579, 592 (1993).

The district court’s conclusory statement following voir dire that “[h]e will be

accepted by this court as an expert” was devoid of any explicit assessment of the

witness’s expertise. While a district court has discretion in how it determines

reliability and need not always hold a pretrial hearing, Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 147 (1999), it must “make some kind of reliability

determination to fulfill its gatekeeping function.” Mukhtar v. Cal. State Univ.,

Hayward, 299 F.3d 1053, 1066 (9th Cir. 2002), amended by 319 F.3d 1073 (9th

Cir. 2003) (order), overruled in part on other grounds by Estate of Barabin v.

AstenJohnson, Inc., 740 F.3d 457, 467 (9th. Cir. 2014).




                                           2
      The erroneous admission of Butler’s testimony requires a new trial unless

this Court finds the error harmless. Estate of Barabin, 740 F.3d at 467. In making

the harmlessness determination, we may look to the record and, if sufficient,

decide whether the testimony would have been admissible at trial. See id. We

decline to hold the testimony harmless on this basis, as we find the record

insufficient to support a finding that Butler was an expert on all matters to which

he testified. It is not clear from the record how, for example, he knew that the

marijuana-filled containers in the tires would create an “identifiable shake” to the

car at speeds “approximately 30 miles an hour and above,” or how he knew that

driving at highway speeds would “blow the tire out.” Butler does not do tire repair

work; he does not have a degree in mechanical engineering; and he has no

certification from a tire design or manufacturing company such as Goodyear or

Michelin. Although he has diagnosed and repaired tire problems in the past, his

testimony failed to establish “how that experience leads to the conclusion reached.”

FED. R. EVID. 702 advisory committee’s notes.

      We nevertheless do hold the admission of Butler’s testimony harmless. His

statements were largely corroborated by the testimony of Officer Blanchette, who

described the shaking and bumping effects he experienced while driving the car,

and that the effects increased at greater speed. Although Butler’s testimony went


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further than Blanchette’s in suggesting that the tires would fail at highway speeds,

the tires did not in fact fail. So the important point for the jury was that anyone

driving the car would have noticed something awry. As to that point, there was

direct evidence, so the expert testimony was redundant. We conclude that

admission of Butler’s testimony more likely than not did not affect the outcome of

the trial. See Estate of Barabin, 740 F.3d at 465.

      2. The government’s statements in closing arguments that Campos-Nunez

was “recruited” by a “drug organization” did not amount to prosecutorial

misconduct. Although the government had stipulated that it would not introduce

any “unknowing courier” or structure evidence, “[l]awyers are supposed to invite

the jury to infer things from the evidence.” United States v. Kojayan, 8 F.3d 1315,

1321 (9th Cir. 1993). The inference that someone had recruited Campos-Nunez to

transport the drugs, and that there was an organization rather than a single

individual behind the smuggling of a large amount of marijuana in specially

constructed tire compartments, was consistent with the evidence and not unduly

speculative. Because the contested statements presented no information the jury

did not already possess and suggested permissible inferences, there was no

misconduct that is “likely to have affected the jury’s discharge of its duty to judge




                                           4
the evidence fairly.” United States v. Simtob, 901 F.2d 799, 806 (9th Cir. 1990);

see also Hein v. Sullivan, 601. F.3d 897, 914 (9th Cir. 2010).1

      3. The district court did not abuse its discretion in admitting Officer

Hernandez’s demeanor testimony. A different court might reasonably have

determined that the officer’s perceptions that Campos-Nunez looked “defeatist”

and “like he had been caught” were not sufficiently helpful to satisfy Rule 701

(even an innocent person might look “defeatist” upon arrest), or that these

statements were excludable under Rule 403 as more prejudicial than probative.

Nevertheless, a trial court is afforded significant discretion in determining the

admissibility of lay opinion testimony. United States v. Fleishman, 684 F.2d 1329,

1335 (9th Cir. 1982), abrogated on other grounds by United States v. Ibarra-

Alcarez, 830 F.2d 968 (9th Cir. 1987). It was not unreasonable in this case for the

district court to find the statements helpful in describing Officer Hernandez’s

observations and to permit them to come before the jury.

      AFFIRMED.



      1
        Campos-Nunez argues that the statements are particularly problematic
coming from a prosecutor from the Southern District of California, whom the jury
might perceive as an expert in drug trafficking schemes. There may be some truth
to this concern, but we conclude that the prosecutor’s statements did not amount to
“personal assurances” and did not stray past the bounds of permissible conduct.
United States v. Weatherspoon, 410 F.3d 1142, 1146.

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