                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 13 2013

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50016

              Plaintiff - Appellee,              D.C. No. 3:11-cr-01653-DMS-1

  v.
                                                 MEMORANDUM*
HEIDY CASTELLANOS,

              Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Southern District of California
                    Dana M. Sabraw, District Judge, Presiding

                        Argued and Sumitted May 6, 2013
                              Pasadena, California

Before: PAEZ, IKUTA, Circuit Judges, and SEEBORG, District Judge.**

       Defendant-Appellant Heidy Castellanos challenges her conviction and

sentence following a jury trial in which she was convicted of conspiracy to import

and importation of marijuana, in violation of 21 U.S.C. §§ 952, 960, 963 and 18


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.
U.S.C. § 2. Specifically, Castellanos challenges the district court’s admission of

post-arrest statements without an evidentiary hearing, refusal to give a “mere

presence” jury instruction, admission of certain expert testimony, and the

application of a two-level sentencing enhancement for obstruction of justice. We

have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and we affirm.

      Castellanos forfeited any objection to the admission of her post-arrest

statements by not asking the court to revisit its tentative ruling denying the motion

to suppress. As a result, Castellanos must show plain error in the admission of the

statements. See United States v. Olano, 507 U.S. 725, 731-34 (1993); United

States v. McInnis, 976 F.2d 1226, 1231 n.3 (9th Cir. 1992). The totality of the

circumstances indicate that Castellanos knowingly and intelligently waived her

Miranda rights before making the statements. United States v. Garibay, 143 F.3d

534, 536 (9th Cir. 1998). Moreover, it was defense counsel, not the government in

its case-in-chief, who initially introduced those statements into evidence. The

government merely responded by cross-examining Castellanos on those

statements. The government’s questions regarding those statements, cannot

constitute plain error. See e.g., United States v. Havens, 446 U.S. 620, 627-28

(1980); United States v. Echavarria-Olarte, 904 F.2d 1391, 1397 (9th Cir. 1990).




                                          2
      The district court did not err in choosing to use the standard Ninth Circuit

pattern jury instructions on knowledge and conspiracy rather than adopting

Castellanos’s proposed “mere presence” instruction. The instructions given

required the government to prove beyond a reasonable doubt that Castellanos

knowingly participated in a plan to import marijuana, and did not “merely

associat[e] with one or more persons who are conspirators.” Ninth Cir. Crim. Jury

Instr. 8.20 (defining conspiracy elements); see also United States v. Reed, 575 F.3d

900, 925-26 (9th Cir. 2009). The government was also required to prove that

Castellanos knowingly brought a prohibited drug into the United States. Ninth Cir.

Crim. Jury Instr. 9.32 (defining unlawful importation of a controlled substance). In

addition, “knowingly” was defined according to the model instructions, addressing

Castellanos’s concern that “mere presence” was an insufficient basis for

conviction. The substance of the district court’s jury instructions was legally

accurate and the refusal to give Castellanos’s proposed instructions on “mere

presence” was not an abuse of discretion.

      The district court’s admission of expert testimony that drug trafficking

organizations “wouldn’t use an unknowing courier” was not an abuse of discretion.

The evidence was introduced to rebut the contention that Castellanos was

“induced” to travel to Mexico by her co-defendants and that she did not know of


                                          3
the marijuana in the car until they were stopped at the border crossing.

Castellanos’s counsel had a full opportunity to cross-examine the expert witness on

his opinions. The jury was not left with the impression that drug trafficking

organizations could never use an “unknowing courier,” and the question of

knowledge was thus not improperly eliminated from the elements of the crime that

must be found by the jury. See United States v. Sepulveda-Barraza, 645 F.3d

1066, 1070-72 (9th Cir. 2011).

      Finally, a defendant who commits perjury has committed an “obstruction of

justice” for sentencing enhancement purposes. U.S.S.G. § 3C1.1 cmt. n.4(b). In

finding that Castellanos committed perjury, the district court did not rely simply on

the jury’s finding of guilt, but indicated that it had concluded Castellanos gave

willfully and materially false testimony regarding whether she had knowledge of

the marijuana in the car. This factual finding is supported by the record, and shows

there is no clear error in the application of the obstruction of justice enhancement.

The resulting 41-month prison sentence is not contrary to law.


      AFFIRMED.




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