                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 12 2014

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 13-10031

              Plaintiff - Appellee,               D.C. No. 2:11-cr-01622-DGC-2

  v.
                                                  MEMORANDUM*
LEONARDO RABANALES-CASIA,

              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                    David G. Campbell, District Judge, Presiding

                             Submitted June 10, 2014**
                              San Francisco, California

Before: O’SCANNLAIN, FERNANDEZ, and BEA, Circuit Judges.

       “[V]iewing the evidence in the light most favorable to the prosecution,” we

conclude that a “rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
With respect to Counts I and II, Rabanales-Casia argues that there was insufficient

evidence to prove a conspiracy or to prove any element of hostage taking. The

elements of hostage taking are that the defendant: (1) seized or detained another

person, (2) threatened to kill, injure, or continue detaining that person, and (3) did

so “in order to compel a third person or a governmental organization to do or

abstain from doing any act as an explicit or implicit condition for the release of the

person detained.” 18 U.S.C. § 1203(a).

      The first element is supported by testimony that the aliens were not allowed

to leave the house in which they were staying. The second and third elements are

supported by testimony that Rabanales-Casia threatened to leave aliens “hungry

and thirsty in a dark room if” their families did not pay money to the smugglers.

That Rabanales-Casia was part of a conspiracy is supported by testimony that he

was employed to help collect payments from the aliens’ families.

      With respect to Counts III and IV, Rabanales-Casia argues that there was

insufficient evidence to prove that he acted for commercial advantage or financial

gain. But the government presented testimony that Rabanales-Casia was paid for

his services.

      We also conclude that the district court did not abuse its discretion in

admitting evidence that a co-defendant raped an alien. That a female alien was


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raped is highly probative of whether aliens were held against their will rather than

in conditions to which they had consented. Any prejudice was reduced by both a

limiting instruction and the condition that the government “not elicit the lurid

details of the rape.” The district court’s decision was within its discretion under

Federal Rule of Evidence 403.1

      AFFIRMED.




      1
         On appeal, Rabanales-Casia mentions additional reasons that the evidence
should not have been admitted: (1) it violated Federal Rule of Evidence 404(b), (2)
it violated his due process rights, and (3) it was disclosed “immediately before
trial.” Because he did not raise these issues below, we review for plain error. See
United States v. Sioux, 362 F.3d 1241, 1244 n.5 (9th Cir. 2004). There was no
such error in this case. See Johnson v. United States, 520 U.S. 461, 466–67
(1997).

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