                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 04 2010

                                                                        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. 08-50554

             Plaintiff - Appellee,               D.C. No. 3:08-cr-00283-IEG-1

  v.
                                                 MEMORANDUM *
FRANCISCO KELLY-PALMER, AKA
Enrique Ayon-Cortez,

             Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Southern District of California
                 Irma E. Gonzalez, Chief District Judge, Presiding

                     Argued and Submitted December 8, 2009
                              Pasadena, California

Before: PREGERSON, NOONAN and PAEZ, Circuit Judges.

       Francisco Kelly-Palmer (“Kelly-Palmer”) appeals his conviction under 8

U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291. We review de novo

whether there has been a violation of a Defendant’s Sixth Amendment right to

present a defense and Fifth Amendment right to due process. United States v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Bahamonde, 445 F.3d 1225, 1228 (9th Cir. 2006). We state the facts only as

necessary to explain our decision and we affirm.

      First, the district court did not violate Kelly-Palmer’s constitutional rights

by precluding Kelly-Palmer from testifying about what his grandfather told him

about his place of birth. We review a district court’s decision not to admit

evidence under a hearsay exception for abuse of discretion . United States v. Yida,

498 F.3d 945, 949 (9th Cir. 2007). The district court did not abuse its discretion

when it found that such testimony by Kelly-Palmer was inadmissible hearsay

which did not fall under any of the exceptions to the hearsay rule. United States v.

Rahm, 993 F.2d 1405, 1410 (9th Cir. 2003). Moreover, the exclusion of this

hearsay testimony did not violate Kelly-Palmer’s due process rights, because the

testimony did not bear “persuasive assurances of trustworthiness.” Chia v.

Cambra, 360 F.3d 997, 1003 (9th Cir. 2004); see also Chambers v. Mississippi,

410 U.S. 284 (1973).

      Second, the district court did not violate Kelly-Palmer’s constitutional rights

when it excluded Kelly-Palmer’s expert witness testimony. We review a district

court’s decision to admit expert testimony for abuse of discretion. United States v.

Bahena-Cardenas, 411 F.3d 1067, 1078 (9th Cir. 2005). Expert evidence must be

both relevant and reliable. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579,


                                          -2-
597 (1993). The district court did not abuse its discretion in finding the expert

testimony unreliable.

      Ultimately, the district court’s two evidentiary rulings did not violate Kelly-

Palmer’s constitutional rights because they did not prevent Kelly-Palmer from

presenting his affirmative defense that he is a U.S. citizen. United States v.

Scheffer, 523 U.S. 303, 317 (1998); United States v. Kincaid-Chauncey, 556 F.3d

923, 935 (9th Cir. 2009). We therefore affirm.

AFFIRMED.




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