                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 15 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-50079

                Plaintiff-Appellee,             D.C. No.
                                                5:16-cr-00111-MWF-1
 v.

ELBA SOTO,                                      MEMORANDUM*

                Defendant-Appellant.

                  Appeal from the United States District Court
                      for the Central District of California
                 Michael W. Fitzgerald, District Judge, Presiding

                          Submitted November 7, 2018**
                              Pasadena, California

Before: WARDLAW, RAWLINSON, and HURWITZ, Circuit Judges.

      Elba Soto appeals her conviction under 18 U.S.C. § 1001(a)(2) for making a

false statement to a government agency. Soto argues that the district court abused

its discretion by admitting the lay opinion testimony of a Deputy U.S. Marshal who

identified an individual in an August 18, 2016 border-crossing photo as Soto’s


      *
             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).
fugitive husband, Jose Guadalupe Vega-Zúñiga. We have jurisdiction pursuant to

28 U.S.C. § 1291, and we affirm.

      The district court properly denied Soto’s motion in limine because the lay

opinion testimony was “(a) rationally based on the witness’s perception” and “(b)

helpful to . . . determining a fact at issue,” and the third requirement of Federal

Rule of Evidence 701 was undisputedly satisfied. Fed. R. Evid. 701. First, Deputy

U.S. Marshal Eugene Hibbard’s testimony met Rule 701(a)’s personal knowledge

requirement,1 as he observed and interacted with Vega-Zúñiga on three occasions

for a total of several hours while transporting him to and from court appearances or

meetings. See United States v. Beck, 418 F.3d 1008, 1015 (9th Cir. 2005) (holding

that “a lay witness’s testimony is rationally based within the meaning of Rule 701

where it is ‘based upon personal observation and recollection of concrete facts’”

(citation omitted)). While Soto contends that these interactions were minimal, “the

extent of a witness’s opportunity to observe the defendant goes to the weight of the

testimony, not to its admissibility.” Id. (citations omitted).

      Second, Hibbard’s testimony fulfilled Rule 701(b)’s “helpfulness”

requirement. See id. Because the jury could not observe Vega-Zúñiga in court

itself, Hibbard’s testimony comparing his personal observations of Vega-Zúñiga


1
  “The advisory committee notes to Rule 701 clarify that 701(a) is ‘the familiar
requirement of first-hand knowledge or observation’ . . . .” United States v. Lopez,
762 F.3d 852, 864 (9th Cir. 2014) (citation omitted).

                                           2
with the border-crossing photograph was helpful to determining whether Soto

made a false statement regarding who was in the vehicle that day. Hibbard’s

testimony thus offered the jury “a perspective it could not acquire.” Id. (internal

quotation marks and citation omitted); cf. United States v. Henderson, 68 F.3d 323,

326 (9th Cir. 1995) (observing that “lay witness identifications are particularly

valuable when the witness has specialized knowledge of the defendant’s

appearance unavailable to the jury” (citation omitted)).

        AFFIRMED.2




2
    Appellant’s motion to take judicial notice (ECF No. 22) is DENIED.

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