                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 30 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-50391

              Plaintiff - Appellee,              D.C. No. 2:10-cr-00241-RGK-3

  v.
                                                 MEMORANDUM *
USBALDO PADILLA, AKA Peanut,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                    R. Gary Klausner, District Judge, Presiding

                       Argued and Submitted January 7, 2013
                               Pasadena, California

Before: CANBY, REINHARDT, and WARDLAW, Circuit Judges.

       Usbaldo Padilla appeals his convictions for conspiring to distribute heroin,

in violation of 21 U.S.C. § 846, and for possessing heroin with the intent to

distribute it, in violation of 21 U.S.C. §841 (a)(1). We have jurisdiction under 28

U.S.C. § 1291, and we affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court did not err by admitting recorded telephone calls at trial

without requiring the speakers to be available for cross-examination because the

recordings consisted of co-conspirators’ statements made in furtherance of a

conspiracy. Such statements are not “testimonial” and are therefore not subject to

the requirements of the Confrontation Clause. United States v. Allen, 425 F.3d

1231, 1235 (9th Cir. 2005); see also Crawford v. Washington, 541 U.S. 36, 51-52

(2004). Although Padilla failed to properly raise the remainder of his claims, we

may address them because the government provided briefing on their merits and

thus was not prejudiced by Padilla’s failure. United States v. Ullah, 976 F.2d 509,

515 (9th Cir. 1992).

      Although the district court erred by failing to correct for the “blurred

distinction” between Detective Lopez’s expert testimony and his testimony as a

percipient witness, Padilla failed to object. We therefore review for plain error.

Puckett v. United States, 556 U.S. 129, 143 (2009). We may reverse if there is

error that is “plain,” “affects substantial rights,” and “seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. (internal quotation

marks omitted). Here, Lopez testified as an expert when he interpreted jargon,

cracked codes, and discussed narcotics trafficking techniques. While discussing

the same recorded conversations, he testified as a percipient witness by interpreting


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ambiguous conversations using his direct knowledge of the investigation. The

district court erred by neither alerting the jury to Lopez’s dual role nor taking any

other measure to correct for the confusion potentially caused by his intermingled

testimony. See United States v. Anchrum, 590 F.3d 795, 803 (9th Cir. 2009);

United States v. Freeman, 498 F.3d 893, 897 (2007). Nonetheless, “the distinction

between lay and expert testimony in this context is a fine one.” Freeman, 598 F.3d

at 904. We thus conclude that this error was not “plain” because it was not “clear

or obvious.” Puckett, 556 U.S. at 143.

      The remainder of Padilla’s claims of error lack merit. The district court did

not abuse its discretion by admitting Lopez’s voice identification of Padilla,

because Lopez was “minimally familiar” with Padilla’s voice. United States v.

Plunk, 153 F.3d 1011 (9th Cir. 1998). Nor did the district court abuse its discretion

by ruling that a question during cross-examination was “argumentative” or that the

existence of a “sound spectrograph” was a fact not in evidence. Finally, none of

the district court’s rulings deprived Padilla of his constitutionally protected right to

present a defense, because they did not “significantly undermine[ ] fundamental

elements of [his] defense.” United States v. Scheffer, 523 U.S. 303, 315 (1998).

      AFFIRMED.




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