                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 30 2009

                                                                         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. 09-10096

             Plaintiff - Appellee,                D.C. No. 2:08-CR-00026-JCM-
                                                  RJJ
  v.

EDWARD J. PEREZ,                                  MEMORANDUM *

             Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                     Argued and Submitted December 10, 2009
                             San Francisco, California

Before: B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges.

       Edward J. Perez appeals his conviction for felony possession of a firearm in

violation of 18 U.S.C. § 922(g)(1), claiming the trial court deprived him of his

right to a fair trial and due process when it admitted testimony describing his flight




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
from the police and resistance to arrest. We affirm. Because the parties are

familiar with the facts and procedural history, we will not recount them here.

      Perez’s claims, as his sole issue raised on appeal, that the testimony detailing

his flight from the police and resistance to arrest was so prejudicial that it should

have been excluded under Federal Rule of Evidence 403, and that the admission of

such evidence constitutes reversible error. Rule 403 allows for the exclusion of

relevant evidence “if its probative value is substantially outweighed by the danger

of unfair prejudice.” Fed. R. Evid. 403. This panel reviews the district court’s

decision to admit evidence under Rule 403 for abuse of discretion. United States v.

Curtin, 489 F.3d 935, 943 (9th Cir. 2007) (en banc). The district court need not

recite the Rule 403 test when deciding whether to admit evidence. United States v.

Daly, 974 F.2d 1215, 1217 (9th Cir. 1992).

      However, when the appealing party fails to object to the admission of such

evidence at trial, this panel reviews for plain error. United States v. Thompson, 82

F.3d 849, 854–55 (9th Cir. 1996). Under the plain error standard of review, this

panel will not grant relief unless there has been (1) error, (2) that was plain, (3) that

affected substantial rights, and (4) that seriously affects the fairness, integrity or

public reputation of the judicial proceeding. See United States v. Recio, 371 F.3d

1093, 1100 (9th Cir. 2004). A judgment affects substantial rights when it


                                      Page 2 of 4
“‘affect[s] the outcome of the District Court proceedings.’” United States v.

Pino-Noriega, 189 F.3d 1089, 1097 (9th Cir. 1999) (quoting United States v.

Lussier, 128 F.3d 1312, 1317 (9th Cir. 1997)). Both parties agree that Perez did

not object to the admission of this evidence at trial.

       Perez’s argument on appeal fails because (1) the district court did not

err—and, if it did, certainly any error was far from plain—in its admission of the

testimony; and (2) even if there were plain error, it did not affect Perez’s

substantial rights.

       1. If Perez wanted to object to the use of his flight as evidence of guilt, he

should have objected to any instructions that may have allowed the jury to infer

guilt from flight. He has raised no such argument on appeal. Perez instead objects

to admission of the evidence of flight qua admission. But it would have been

difficult if not impossible for the jury to understand how the police officers

discovered that Perez was carrying a firearm without narrating the events that led

to that discovery. For that reason, we do not think the district court abused its

discretion in concluding that the probative value of the officers’ testimony

outweighed any prejudice that flowed solely from the testimony itself.

       2. Nevertheless, even had such an error occurred, it would not have affected

Perez’s substantial rights, because the admission of the evidence did not affect the


                                      Page 3 of 4
outcome of the trial. The evidence of Perez’s guilt was overwhelming. Perez

stipulated that he was a convicted felon and that the gun traveled in interstate

commerce. The recovered gun magazine had his print on it. Even absent the

contested testimony, the government offered detailed and credible testimony from

two officers, whose testimony was consistent in describing the events. Both of

these officers testified that they witnessed Perez reach in to his waistband and pull

out a gun. In light of such testimony, evidence, and stipulations, we cannot find

plain error.

       Therefore, the conviction is

       AFFIRMED.




                                      Page 4 of 4
