                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 19 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-30098

              Plaintiff - Appellee,              D.C. No. 3:10-cr-00298-EJL-2

  v.
                                                 MEMORANDUM*
FREDDIE MICHAEL BERNAL,

              Defendant - Appellant.


                    Appeal from the United States District Court
                              for the District of Idaho
                     Edward J. Lodge, District Judge, Presiding

                             Submitted July 12, 2013**
                                Portland, Oregon

Before: PREGERSON, MURGUIA, and CHRISTEN, Circuit Judges.

       Freddie Michael Bernal appeals his jury conviction and sentence for willful

injury or depredation of property of the United States in violation of 18 U.S.C. §




        *
             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).
1361 and false statement of material fact in violation of 18 U.S.C. § 1001(a)(2).

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm.

      The district court did not abuse its discretion in admitting evidence that

Bernal damaged Nez Perce pictographs when he spray painted rocks on federal

government land. As the district court found, the evidence of pictograph damage

was highly probative for two elements of the offense under § 1361—the nature of

the damage and the cost of the damage—and was not unduly prejudicial. See

United States v. Ganoe, 538 F.3d 1117, 1124 (9th Cir. 2008) (holding that the

probative value of the evidence is high where it is “not extrinsic to the crime

charged” but instead directly related to the offense). Further, the district court did

not commit plain error in failing to exclude, sua sponte, the testimony of Julia

Altman and other witnesses whom Appellant purports have testified “cloaked with

the mantle of an expert.” See Jinro America Inc. v. Secure Investments Inc., 266

F.3d 993, 1004 (9th Cir. 2000). The testimony was not unduly prejudicial, given

the nature the witnesses’ testimony and that the Government did not designate

these witnesses as experts. Thus, the evidence of pictograph damage and the

testimony of such witnesses were properly admitted under Federal Rule of

Evidence 403.




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      The district court also did not abuse its discretion in denying Bernal’s

request that the jury view the site of the damaged pictographs in person. The

district court properly considered that taking the jury to view the site was

logistically difficult. See Hametner v. Villena, 361 F.2d 445, 446 (9th Cir. 1966)

(per curiam). To reach the site, the jury would be required to drive from the

courthouse to the state park and hike for about an hour from the parking lot. The

district court also considered that the jury had sufficient evidence to understand

what was depicted at the site and the nature of the damage inflicted to the site by

the defendants. That evidence included over one hundred photographs and

exhibits related to the rock face at the Red Elk Rock Shelter, and testimony of

witnesses who described the site and the damage caused to the site. See Hughes v.

United States, 377 F.2d 515, 516 (9th Cir. 1967) (holding that the district court did

not abuse its discretion by denying the jury a site visit where photographs of the

site were admitted into evidence).

      Finally, the district court did not abuse its discretion in sentencing Bernal.

The district court correctly calculated the guidelines range before departing

downward to a below-Guidelines sentence of 36 months imprisonment. The

district court stated that it had considered the 18 U.S.C. § 3553(a) factors,

including the need to avoid unwarranted sentence disparities between co-


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defendants. See 18 U.S.C. § 3553(a)(6). Moreover, the district court explained

that it was sentencing Bernal to a higher sentence than his co-defendants because

the co-defendants cooperated with the government’s investigation, accepted

responsibility for their actions, and were not convicted of the second crime of false

statement of material fact.

      Furthermore, the sentence imposed on Bernal was not substantively

unreasonable. In sentencing Bernal, the district court properly considered §

3553(a) factors by noting Bernal’s individual background, criminal record,

additional conviction of false statement of material fact, and failure to cooperate

with the government or to accept responsibility for his actions. See United States

v. Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009) (holding that a sentence

is substantively unreasonable if, under the totality of the circumstances, it fails to

properly reflect § 3553(a) considerations ).

      AFFIRMED.




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