                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             DEC 17 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 12-10099

              Plaintiff-Appellee,                D.C. No.
                                                 3:08-cr-00730-WHA-33
 v.

DANILO VELASQUEZ,                                MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Northern District of California
                     William Alsup, District Judge, Presiding

                     Argued and Submitted December 4, 2018
                              Seattle, Washington

Before: GRABER, McKEOWN, and CHRISTEN, Circuit Judges.

      Defendant Danilo Velasquez appeals his convictions for (1) racketeering

conspiracy, in violation of 18 U.S.C. § 1962(d); (2) conspiracy to commit murder

in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5); (3) conspiracy to

commit assault with a deadly weapon in aid of racketeering, in violation of 18




      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
U.S.C. § 1959(a)(6); and (4) use and possession of a firearm in furtherance of a

crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A) and § 2. We affirm.

      1. The district court did not abuse its discretion by excluding the "cultural

defense" testimony offered by the "cultural" and the "diminished capacity" experts.

See United States v. Christian, 749 F.3d 806, 810 (9th Cir. 2014) (reviewing the

exclusion of expert testimony for abuse of discretion). The court permissibly

balanced the probative value of the proposed testimony against its potential for

unfair prejudice and permissibly excluded it under Federal Rule of Evidence 403.

United States v. Anderson, 741 F.3d 938, 950 (9th Cir. 2013).

      2. Nor did the district court abuse its discretion by limiting the "diminished

capacity" expert’s testimony. First, the district court permissibly precluded the

expert from "simply transmit[ting] hearsay to the jury." The district court

permissibly balanced the probative value of the information against its potential for

unfair prejudice and permissibly excluded it under Rule 703. See Fed. R. Evid.

703 (stating that otherwise inadmissible information can be disclosed to the jury

"only if [its] probative value in helping the jury evaluate the opinion substantially

outweighs [its] prejudicial effect").

      Second, the district court also permissibly precluded the expert from

testifying that Defendant "did not have the requisite mental state to knowingly and


                                           2
intentionally join or participate in the charged conspiracies and/or criminal

enterprise" under Federal Rule of Evidence 704(b). The district court properly

drew the line between testimony regarding mental illness and conclusions about

mens rea. See United States v. Morales, 108 F.3d 1031, 1037 (9th Cir. 1997) (en

banc) (holding that Rule 704(b) prohibits an expert witness in a criminal case from

"stat[ing] an opinion or draw[ing] an inference which would necessarily compel

the conclusion" that defendant lacked the requisite mental state).

      These exclusions did not violate Defendant’s Sixth Amendment right to

present a diminished capacity defense. See United States v. Perkins, 937 F.2d

1397, 1401 (9th Cir. 1991) (holding that the defendant "cannot transform the

exclusion of this evidence into constitutional error by arguing that he was deprived

of his right to present a defense. The right to present a defense is clearly

fundamental, but ‘. . . the accused . . . must comply with established rules of

procedure and evidence designed to assure both fairness and reliability in the

ascertainment of guilt and innocence.’" (quoting Chambers v. Mississippi, 410

U.S. 284, 302 (1973))).

      3. The district court did not plainly err by admitting the co-conspirator’s

statement. See United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990)

(reviewing an unpreserved evidentiary issue for plain error). The statement was


                                           3
properly admitted as nonhearsay pursuant to Rule 801(d)(2)(E) because it directly

furthered the conspiracy by ensuring that Defendant received credit for his "work."

See United States v. Tamman, 782 F.3d 543, 553 (9th Cir. 2015) ("Statements

made to keep coconspirators abreast of an ongoing conspiracy’s activities satisfy

the ‘in furtherance of’ requirement."). Additionally, because "statements in

furtherance of a conspiracy" are "not testimonial," the co-conspirator’s statement

does not implicate the Confrontation Clause. Crawford v. Washington, 541 U.S.

36, 56, 68–69 (2004)

      4. The sentencing court did not abuse its discretion or violate Defendant’s

Fifth Amendment rights by sentencing Defendant to life in prison. See Gall v.

United States, 552 U.S. 38, 49 (2007) (reviewing all sentencing decisions for abuse

of discretion). The sentence was procedurally correct: the district court properly

considered the 18 U.S.C. § 3553(a) factors and determined that Defendant

deserved life in prison. United States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008)

(en banc). The sentence was substantively reasonable: the district court

considered all the factors and testimony and reasonably concluded that a variance

was not warranted. United States v. Ressam, 679 F.3d 1069, 1089 (9th Cir. 2012)

(en banc).




                                          4
      Additionally, Defendant was not penalized for exercising his Fifth

Amendment right to trial and appeal. Defendant was not similarly situated to a co-

defendant who pleaded guilty and received a shorter sentence, because other

factors underlay the court’s sentencing decision. United States v. Carter, 560 F.3d

1107, 1121 (9th Cir. 2009).

      AFFIRMED.




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