                                                                            FILED
                            NOT FOR PUBLICATION                              SEP 14 2010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. 09-50486

              Plaintiff - Appellee,               D.C. No. 3:08-cr-00369-JLS-2

  v.
                                                  MEMORANDUM *
XU JUN LEE,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                   Janis L. Sammartino, District Judge, Presiding

                       Argued and Submitted August 5, 2010
                               Pasadena, California

Before:       KOZINSKI, Chief Judge, REINHARDT and WARDLAW, Circuit
              Judges.

       The district court did not abuse its discretion in denying Lee funds to hire an

eyewitness identification expert because he hasn’t shown that “reasonably

competent counsel would have required” one. United States v. Labansat, 94 F.3d

527, 530 (9th Cir. 1996). Further, the other evidence of Lee’s knowing


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                               page 2

involvement in the smuggling conspiracy was substantial: The government

introduced evidence that Lee (1) was driving in tandem with the van carrying the

Asian aliens; (2) had a walkie-talkie tuned to the same channel as that of the van’s

driver; and (3) possessed travel documents, foreign currency and over $11,000 in

U.S. currency. Therefore, Lee isn’t able to show by clear and convincing evidence

that he was prejudiced. See United States v. Rodriguez-Lara, 421 F.3d 932,

946–47 (9th Cir. 2005). The district court did not err in allowing the government

to comment on Lee’s request for an expert because defense counsel renewed his

request in the prosecutor’s presence, even after the judge reminded him that the

request “was of a confidential nature.” See Mason v. Arizona, 504 F.2d 1345,

1352 n.7 (9th Cir. 1974) (“We decline to evaluate this objection because it does not

appear . . . that [the defendant] made any effort to have these motions considered

ex parte.”); see also 18 U.S.C. § 3006A(e).

      The district court’s decision to allow the government to question a witness

as to whether Lee was a “snakehead” was not an abuse of discretion because the

term was not unfairly prejudicial. See United States v. Gonzalez-Flores, 418 F.3d

1093, 1098 (9th Cir. 2005). Lee’s own attorney used the term to question

witnesses before objecting to the government’s use of the term. Cf. United States

v. Archdale, 229 F.3d 861, 865 (9th Cir. 2000) (finding no showing of “manifest
                                                                                   page 3

injustice” where challenged testimony was “very similar” to other, unchallenged

testimony). The district court also did not abuse its discretion in allowing the

government to cross-examine Lee about an illicit meeting with a corrupt border

inspector’s wife because the testimony was relevant to whether Lee’s participation

in the smuggling conspiracy was knowing. And the government’s questions were

“reasonably related” to Lee’s testimony on direct that he was an unwitting

participant. See United States v. Miranda-Uriarte, 649 F.2d 1345, 1353 (9th Cir.

1981).

         The district court did not abuse its discretion when it refused to give Lee’s

proposed accomplice jury instruction because the witnesses “could [not] have been

indicted for the same offense” as Lee, and thus were not accomplices. Guam v.

Dela Rosa, 644 F.2d 1257, 1260–61 (9th Cir. 1981). And the court’s refusal to

give Lee’s preferred eyewitness identification instruction wasn’t an abuse of

discretion because the judge read Ninth Circuit Model Criminal Jury Instruction

4.14, which properly instructed the jury about eyewitness testimony and the

government’s burden. See United States v. Shipsey, 363 F.3d 962, 968 (9th Cir.

2004) (“Where the instruction actually given was legally sufficient, a defendant

cannot successfully contend that declining to use his specific formulation was an

abuse of discretion.”); cf. United States v. Duran, 59 F.3d 938, 941 (9th Cir. 1995)
                                                                                     page 4

(“It is not reversible error . . . to reject a defendant’s proposed instruction on his

theory of the case if other instructions, in their entirety, adequately cover that

defense theory.” (internal quotation marks omitted)).

      The district court’s restriction of defense counsel’s closing argument was not

an abuse of discretion. The trial judge is “given great latitude” to control closing

argument, Herring v. New York, 422 U.S. 853, 862 (1975), and refusing to allow

defense counsel to analogize convicting the defendant to pulling the plug on a

loved one didn’t diminish the government’s burden of proof. See United States v.

Medina Casteneda, 511 F.3d 1246, 1249–50 (9th Cir. 2008) (“The jury is regularly

presumed to accept the law as stated by the court, not as stated by counsel.”

(quoting United States v. Rodrigues, 159 F.3d 439, 451 (9th Cir. 1998))).


      AFFIRMED.
