                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            DEC 14 2016
                   UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   15-10339

              Plaintiff-Appellee,                D.C. No.
                                                 2:13-cr-00269-LDG-GWF-1
 v.

ENRIQUE IVAN ROCHA,                              MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Lloyd D. George, District Judge, Presiding

                          Submitted December 12, 2016**
                             San Francisco, California

Before:      KOZINSKI and N.R. SMITH, Circuit Judges, and GLEASON,***
             District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
              The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
                                                                                  page 2
      1.     Rocha requested Detective Nichols’s “recorded communications and

messages . . . with other subjects in his undercover operations regarding coercion

and enticement of minors for sexual activity, or other similar state, local and/or

federal crimes, that have occurred in the last three years.” The magistrate judge

properly denied this discovery because the information requested wasn’t material

to Rocha’s defense. See Fed. R. Crim. P. 16(a)(1)(E)(i). The government agent’s

state of mind is irrelevant to an entrapment defense; it is the effect of the agent’s

actions, United States v. Williams, 547 F.3d 1187, 1197 (9th Cir. 2008), and “the

predisposition of the defendant to commit the offense . . . that counts,” United

States v. Makhlouta, 790 F.2d 1400, 1402 (9th Cir. 1986) (internal quotation marks

and citations omitted). The magistrate judge correctly concluded that even if

“Detective Nichols engaged in conduct in other investigations that induced

individuals to commit crimes that they were not predisposed to commit, such

evidence would not prove or tend to prove that Defendant Rocha was induced to

commit a crime that he was not otherwise predisposed to commit.”

      Because the evidence requested is irrelevant, Rocha’s arguments under Rule

17 of the Federal Rules of Criminal Procedure and Rule 404(b) of the Federal

Rules of Evidence also fail. See Fed. R. Crim. P. 17; Fed. R. Evid. 404(b).
                                                                                 page 3
      2.     Rocha also argues that the district court should have allowed Dr.

Gould, an endocrinologist, to testify as a lay witness. Rocha proffered that Dr.

Gould would “present factual testimony about Mr. Rocha’s medical condition at

the time of the offense, which includes statements Mr. Rocha made to Dr. Gould

for the purpose of medical diagnosis or treatment that he was depressed.” He relies

on our decision in United States v. Sandoval-Mendoza, 472 F.3d 645 (9th Cir.

2006). We held that “medical expert opinion testimony showing that a medical

condition renders a person unusually vulnerable to inducement is highly relevant to

an entrapment defense.” Id. at 656 (emphasis added). Rocha didn’t qualify Dr.

Gould as an expert witness and a lay witness can’t testify to what is essentially an

expert opinion. See United States v. Figueroa-Lopez, 125 F.3d 1241, 1244–46 (9th

Cir. 1997); Fed. R. Evid. 701.

      Even if the testimony were admissible as a lay opinion, any error in

excluding it was harmless. Rocha wasn’t prevented from presenting the same

information through other witnesses. In fact, Rocha eventually testified about his

medical history and depression. Because the jury heard the very facts that Rocha

claims were wrongly excluded, any error did not “more likely than not affect[] the

verdict.” United States v. Pang, 362 F.3d 1187, 1192 (9th Cir. 2004) (citation

omitted).
                                                                                    page 4
      3.     Nor did the district court err in denying Rocha’s motion for a mistrial

after the government inadvertently failed to redact all references to Rocha’s

girlfriend from a taped interview that it played at trial. “Declaring a mistrial is

appropriate only where a cautionary instruction is unlikely to cure the prejudicial

effect of an error.” United States v. Charmley, 764 F.2d 675, 677 (9th Cir. 1985).

The government agreed to stipulate that Rocha didn’t have a girlfriend and the

district court offered to instruct the jury to disregard the reference to Rocha’s

girlfriend. That Rocha declined both the offered stipulation and the proposed

instruction doesn’t require a mistrial.


      4.     The district court’s rulings didn’t force Rocha to testify. The Fifth

Amendment right against self-incrimination doesn’t apply to “a defendant’s own

subjective perception of what constitutes a proper trial strategy.” United States v.

Perkins, 937 F.2d 1397, 1405 (9th Cir. 1991). Rocha “made a tactical decision to

testify in light of all the circumstances of the case.” Id.


      5.     The district court acted within its discretion when it instructed defense

counsel to avoid broadly stating, during closing argument, that sexting with a

minor isn’t criminal. “[T]he trial judge has broad discretion in controlling closing

argument.” United States v. Guess, 745 F.2d 1286, 1288 (9th Cir. 1984). And
                                                                                page 5
we’ve held that mere communications can constitute a substantial step for purposes

of section 2422(b). See United States v. Goetzke, 494 F.3d 1231, 1236 (9th Cir.

2007). The district court’s narrow limitation on closing argument was consistent

with our precedent and “merely prevented [Rocha] from arguing incorrect

statements of law, something that is well within the court’s discretion.” United

States v. Doe, 705 F.3d 1134, 1149 (9th Cir. 2013).

      Nor did the district court’s ruling affect “the defendant’s right to put on a

defense.” Rocha was free to argue that sexting alone didn’t violate section

2422(b).


      AFFIRMED.
