                                                                            FILED
                           NOT FOR PUBLICATION                              MAR 31 2016

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50302

              Plaintiff - Appellee,              D.C. No. 3:13-cr-03166-JLS-1

 v.
                                                 MEMORANDUM*
REBECCA IRENE BRENES,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                   Janis L. Sammartino, District Judge, Presiding

                            Submitted March 11, 2016**
                               Pasadena, California

Before: CLIFTON, CALLAHAN, and IKUTA, Circuit Judges.

      Rebecca Brenes appeals the district court’s judgment of conviction and

sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.




        *
             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).
      Brenes argues that the district court erred in admitting photographs of the

aliens inside the compartment, the driveshaft from the Suburban, and the video of

the driveshaft spinning, because the probative value of this evidence was

substantially outweighed by the risk of unfair prejudice under Federal Rules of

Evidence, Rule 403. We disagree. The primary contested issue at trial was

Brenes’s knowledge of the aliens in her vehicle. The photograph of the aliens in

the compartment provided the best and clearest evidence of their close proximity to

the driveshaft. The admission of the driveshaft itself and of the video showing the

driveshaft spinning a low rate of speed was likewise probative of the central issue

at trial. Most people have not examined a driveshaft or seen it in operation. A

functional demonstration helped to clarify the danger that it posed, and that tended

to demonstrate Brenes’s knowledge, because, as the government argued, she would

have to drive carefully in order to prevent injury to the aliens in the compartment.

       In contrast, the potential for unfair prejudice was not very high. To be sure,

there was some potential that the jurors would have an emotional response to the

photograph depicting the aliens. See, e.g., United States v. Gonzalez-Flores, 418

F.3d 1093, 1098 (9th Cir. 2005). But the evidence here was not so graphic or

shocking that it would be likely to engender a strong and improper emotional




                                          2
response against the Defendant. At most, the aliens seem frightened and

bewildered. The driveshaft itself and the video of it spinning at a low rate of speed

were, likewise, not particularly graphic. Therefore, any unfair prejudice did not

substantially outweigh the high probative value of this evidence under Rule 403.

      Brenes argues that the government committed misconduct by making

improper statements during its opening and closing arguments. Assuming

arguendo that the prosecutor’s description of the driveshaft as a “meat grinder”

and his speculation that an alien who was injured by the driveshaft would have

screamed out in pain were inappropriate, such characterizations were harmless.

The prosecution was entitled to argue that the driveshaft was dangerous because

that fact provided circumstantial evidence of Brenes’s knowledge. The

prosecution could also have properly described the type of danger that the

driveshaft posed, severe cuts and burns. Even using the most sterile of descriptors,

the profile that could have permissibly been presented to the jury differs little from

the profile that was actually presented to the jury. Therefore, Brenes fails to

establish that “it is more probable than not that the misconduct materially affected

the verdict.” United States v. Christophe, 833 F.2d 1296, 1301 (9th Cir. 1987).

      Brenes argues that the district court improperly sustained five hearsay

objections because the out-of-court statements were not offered to prove the truth


                                           3
of the matters asserted, and that as a result, her constitutional right to present a

complete defense was violated. But even assuming that these statements were not

offered for the truth of the matters asserted, all of the evidence was successfully

introduced through other sources. Specifically, Brenes elicited that Magana knew

that she was looking for a car prior to her trip to Mexico, that Magana is the person

who recommended the Suburban to her, and that Magana arranged for her car to be

repaired at the shop where the aliens were put into the car. Therefore, Brenes was

not denied her constitutional right to put forward a complete defense, and the

harmless error standard enunciated in Federal Rules of Criminal Procedure, Rule

52(a) applies. Under that standard, Brenes cannot show that the district court’s

error had “a substantial impact on the jury’s deliberation.” United States v. Lopez-

Alvarez, 970 F.2d 583, 588–89 (9th Cir. 1992) (holding that the erroneous

exclusion of hearsay evidence was harmless because the “excluded testimony . . .

would have had limited probative value beyond that of other evidence before the

jury”).

      Brenes argues that the cumulative effect of the asserted trial errors warrants

reversal. But the driveshaft evidence was properly admitted, any improper

argument was harmless, and all of the excluded hearsay evidence was introduced




                                            4
in another form. Therefore, the cumulative effect of the asserted trial errors did not

rise to the level of prejudice.

       AFFIRMED.




                                          5
