                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            SEP 16 2015
                   UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-10172

              Plaintiff - Appellee,              D.C. No. 4:13-cr-00314-CKJ-JR-1

 v.
                                                 MEMORANDUM*
FELIX SANTIAGO LEMUS-
RODRIGUEZ,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 14-10173

              Plaintiff - Appellee,              D.C. No. 4:09-cr-01358-CKJ-JR-1

 v.

FELIX SANTIAGO LEMUS-
RODRIGUEZ,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                              page 2
                      Argued and Submitted August 10, 2015
                            San Francisco, California

Before:      KOZINSKI and TALLMAN, Circuit Judges and PIERSOL,**
             Senior District Judge.

      1. The district court did not err by refusing to give Ninth Circuit Model

Criminal Jury Instruction 9.8, which applies where a previously removed

defendant is “found” in the United States. The government argued only that the

defendant “reentered” the United States without permission. The district court

properly instructed the jury using corresponding Model Criminal Jury Instruction

9.6, which applies to illegal reentry offenses. To the extent defendant complains

that the indictment also charged him with being “found” in the United States, a

district court may properly instruct the jury in a manner that narrows the

indictment. See United States v. Miller, 471 U.S. 130, 144 (1985).


      2. The district court didn’t abuse its discretion by preventing defendant

from introducing expert testimony about the unlikelihood of obtaining asylum

from Mexico. Defendant sought to introduce this testimony in response to the

prosecution’s questions as to whether he considered legal alternatives to reentering

the United States without permission. But defendant testified that he never

       **
             The Honorable Lawrence L. Piersol, Senior District Judge for the U.S.
District Court of South Dakota, sitting by designation.
                                                                                  page 3
investigated any alternatives. Evidence about his likelihood of obtaining lawful

admission through asylum was thus irrelevant.


      3. The district court didn’t balance the probative value and prejudicial

impact of admitting defendant’s multiple prior removals under Federal Rule of

Evidence 403. But admitting the multiple removals wasn’t error, even under de

novo review. See United States v. Moran, 493 F.3d 1002, 1012 (9th Cir. 2007).

Prior acts may be introduced “to show absence of duress.” United States v.

Verduzco, 373 F.3d 1022, 1027 (9th Cir. 2004). The multiple removals established

a pattern of illegal reentry, which undermines defendant’s claim that he was under

duress when he crossed the border. While the court admitted all instances of the

defendant’s prior removals, it gave a limiting instruction to the jury. That

instruction reduced or eliminated any prejudice the defendant may have suffered.

See United States v. Bradshaw, 690 F.2d 704, 709 (9th Cir. 1982).


      4. The district court abused its discretion by admitting defendant’s 2002

conviction for illegal reentry without conducting the proper balancing test under

Federal Rule of Evidence 609(b)(1). But that error was harmless because it’s

unlikely that the 2002 conviction “substantially sway[ed]” the jury to return a

guilty verdict. United States v. Alviso, 152 F.3d 1195, 1199 (9th Cir. 1998). The
                                                                              page 4
defendant admitted to reentering the United States without permission. The jury

also likely disregarded defendant’s duress defense because he admitted that he

didn’t face an imminent threat of harm before he crossed the border.


      5. The record reflects sufficient awareness of the requirements of Federal

Rule of Evidence 609(a)(1) to show that the district court didn’t abuse its

discretion in admitting the other prior convictions. See United States v. Jimenez,

214 F.3d 1095, 1098 (9th Cir. 2000). The court found the defendant’s credibility

to be central to the case and emphasized the importance of the government’s ability

to impeach him.


      6. Because there weren’t multiple trial errors, defendant can’t succeed on

his cumulative prejudice claim. See United States v. Geston, 299 F.3d 1130, 1138

(9th Cir. 2002).


      AFFIRMED.
