                                                                          FILED
                            NOT FOR PUBLICATION
                                                                           SEP 09 2015
                    UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50078

              Plaintiff - Appellee,              D.C. No. 3:13-cr-01004-WQH-1

       v.
                                                 MEMORANDUM*
FRANCISCO BEAS,

              Defendant - Appellant.

                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                          Submitted September 3, 2015**
                              Pasadena, California

Before: O’SCANNLAIN, FISHER and BYBEE, Circuit Judges.

      Francisco Beas appeals his conviction for importing methamphetamine in

violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.



        *
        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).
      1. The district court did not abuse its discretion in admitting portions of

Officer Banks’ testimony over Beas’ objections. Banks’ impression that Beas was

nervous and posed a potential safety risk was permissible lay opinion under

Federal Rule of Evidence 701 and tended to prove an essential element of the

offense: that Beas knew he was importing a controlled substance. Any prejudice

caused by the testimony was outweighed by its relevance. See Fed. R . Evid. 403.

Furthermore, Banks’ testimony explaining why he referred Beas to the secondary

inspection area was relevant as circumstantial evidence of Beas’ state of mind and

to provide context for the jury. See United States v. Munoz, 412 F.3d 1043, 1050

(9th Cir. 2005); United States v. Gutierrez-Espinosa, 516 F.2d 249, 250 (9th Cir.

1975).

      The remaining statements to which Beas objects constituted permissible

opinion testimony. Banks’ observation that Beas appeared to be looking for exits

was premised on Banks’ own observations and perceptions and, as discussed

above, was relevant and not unduly prejudicial in suggesting Beas knew he was

carrying contraband. Banks’ interpretation of Beas’ statement he was going to San

Diego to “help” his grandmother was permissible, as “help” is subject to many

meanings. Even if Beas’ statement was clear, however, Banks’ understanding was

incidental to the issue at hand and its admission is therefore harmless when viewed


                                          2
in the context of his other testimony and the evidence in the record. See United

States v. Freeman, 498 F.3d 893, 905 (9th Cir. 2007).

      2. As Beas concedes in his supplemental briefing, his argument that the

government was required to prove he knew the type of drug he was transporting is

foreclosed by United States v. Jefferson, 791 F.3d 1013 (9th Cir. 2015). “[O]nly

. . . the essential elements of [a] crime must be demonstrated at trial,” and any

language in a charging document that goes beyond those elements “is mere

surplusage that need not be proved” unless omitting it prejudices the defendant.

United States v. Jenkins, 785 F.2d 1387, 1392 (9th Cir. 1986); see also United

States v. Pang, 362 F.3d 1187, 1194 (9th Cir. 2004) (applying Jenkins to

surplusage in an information). Here, Beas’ argument that the language in the

superseding information deprived him of due process fails because he has not

shown prejudice.

      Even assuming Beas was operating under the mistaken belief 21 U.S.C.

§ 960 required the government to prove knowledge of drug type, Beas’ entire

defense responded to what the essential element of the charge actually was:

whether Beas knew he was transporting any controlled substance,

methamphetamine or otherwise. At trial, Beas consistently argued he was unaware

the truck he was driving contained any controlled substance whatsoever. Rather


                                           3
than being “ambushed or misled in any way by the extraneous language in the

information,” see Pang, 362 F.3d at 1194, Beas put on a well-supported defense

that held the government to the burden of proving the essential elements of a

charge under § 960. He has not shown he was prejudiced by the surplus language

in the information.

      AFFIRMED.




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