                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 11 2012

                                                                        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. 12-10016

              Plaintiff - Appellee,              D.C. No. 4:10-cr-02352-DCB-
                                                 BPV-1
  v.

ADAM TORRES CARRASCO,                            MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                     Argued and Submitted December 6, 2012
                            San Francisco, California

Before: SILVERMAN, GOULD, and CHRISTEN, Circuit Judges.

       Adam Torres Carrasco appeals his jury-trial conviction and sentence for

failing to report the exportation of over $10,000 in violation of 31 U.S.C. §§ 5316

and 5322 and bulk cash smuggling in violation of 31 U.S.C. § 5332.      He also




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
appeals the denial of his motion for a new trial. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

      Carrasco challenges the district court’s admission of evidence that on prior

occasions he crossed the border in a vehicle containing a secret compartment and

in a vehicle with a substance secreted in the horn. We review for abuse of

discretion a district court’s decision to admit evidence of prior acts pursuant to

Federal Rule of Evidence 404(b). United States v. Lozano, 623 F.3d 1055, 1059

(9th Cir. 2010). The district court did not abuse its discretion because sufficient

evidence supported the existence of the prior acts, they were not too remote in

time, and they tended to prove a material and contested point — Carrasco’s

knowledge of the money hidden in his spare tire. See id. The court also

adequately considered the probative and prejudicial consequences of introducing

the acts. See United States v. Ono, 918 F.2d 1462, 1465 (9th Cir. 1990) (district

court not required to explicitly recite Federal Rule of Evidence 403 balancing “if

this court can conclude, based on a review of the record, that the district court

considered Rule 403’s requirements”). Even if admission of the prior act evidence

was error, it was harmless in light of the overwhelming evidence of Carrasco’s

guilt. See United States v. Chase, 340 F.3d 978, 993 (9th Cir. 2003) (en banc).




                                           2
      Carrasco also argues that the district court erred when it denied his motion

for a new trial based upon newly discovered expert opinion evidence, offered in a

different case, discussing the existence of “blind mules” in drug smuggling

operations. We review for abuse of discretion. United States v. Hinkson, 585 F.3d

1247, 1259 (9th Cir. 2009) (en banc). The district court’s finding that the expert

testimony was not newly discovered evidence was not an abuse of discretion

because it was not “illogical, implausible, or without support in inferences that may

be drawn from the facts in the record.” Id. at 1263. Additionally, the district court

did not abuse its discretion because this evidence could have been discovered

earlier, was at best merely impeaching, and did not suggest that “a new trial, if

granted, would probably result in acquittal.” United States v. George, 420 F.3d

991, 1000 (9th Cir. 2005).

      Finally, Carrasco appeals the district court’s application of a two-level

sentence enhancement for obstruction of justice under U.S. Sentencing Guidelines

Manual § 3C1.1 (2011). Carrasco argues that the district court erred by not making

more specific findings of perjury on the record pursuant to United States v.

Dunnigan, 507 U.S. 87, 95 (1993). We review the district court’s determination

that Carrasco obstructed justice by committing perjury for clear error. See United

States v. Jimenez, 300 F.3d 1166, 1170 (9th Cir. 2002). At sentencing, defense


                                           3
counsel’s only objection was to the adequacy of the proof that any of Carrasco’s

testimony was false. Having heard the evidence presented at trial, the court

listened to argument on this point and made an express finding that Carrasco’s

testimony was “totally fabricated beyond belief.” In context, it is clear that the

court found all of Carrasco’s testimony about an alleged acquaintance who planted

the money in his car and the circumstances of their meeting to be false. The court

met its obligation to make adequate findings by making a finding “with regard to

the only objection raised against the obstruction of justice enhancement.” United

States v. Rojas-Millan, 234 F.3d 464, 471 (9th Cir. 2000).

      AFFIRMED.




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