                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JAN 24 2014

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

UNITED STATES OF AMERICA,                        No. 13-50035

              Plaintiff - Appellee,              D.C. No. 3:12-cr-00547-AJB-1

  v.
                                                 MEMORANDUM*
MARK LOUIS GONZALES,

              Defendant - Appellant.


                  Appeal from the United States District Court
                     for the Southern District of California
                  Anthony J. Battaglia, District Judge, Presiding

                      Argued and Submitted January 9, 2014
                              Pasadena, California

Before: W. FLETCHER, M. SMITH, and WATFORD, Circuit Judges.

       1. Gonzales contends the district court erred by excluding his proposed

expert testimony. Although he offered conflicting rationales for admission of the

testimony below, Gonzales now argues that his expert would have testified that the




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                            Page 2 of 3
effects of drug addiction or withdrawal tend to make addicts susceptible to

manipulation, supporting his claim that he was “duped” into transporting drugs.

      Based on Gonzales’s explanation supporting admission of his expert’s

testimony to the district court, the court did not abuse its discretion in concluding

that the evidence was insufficiently probative. See United States v. Amaral, 488

F.2d 1148, 1153 (9th Cir. 1973). As Gonzales points out, we have previously held

that a district court erred in excluding expert testimony about a defendant’s

diminished perceptive abilities where knowledge was an element of the crime. See

United States v. Rahm, 993 F.2d 1405 (9th Cir. 1993). But Gonzales failed to

adequately explain to the district court that he sought to put on expert testimony for

a Rahm-type purpose, and the district court was understandably confused by

Gonzales’s statements that the expert would address, among other things, whether

a heroin and methamphetamine addict would “be capable of telling the truth.” The

district court acted within its discretion in excluding the latter testimony.

      2. Gonzales argues that he should have been allowed to examine the case

agent about a government memorandum regarding unrelated drug trafficking

incidents in which Mexican drug traffickers hired unwitting couriers through

newspaper ads. The district court did not abuse its discretion in concluding that

this evidence would be likely to confuse the issues, mislead the jury, and unduly
                                                                         Page 3 of 3
delay the trial because the government would then seek to introduce contrary

evidence about drug trafficking operations. See Fed. R. Evid. 403.

      3. The district court did not abuse its discretion in admitting recordings and

transcripts of telephone conversations between Gonzales and an unidentified

woman. The woman’s statements were offered only to provide context for

Gonzales’s responses, not for the truth of what she said. See Fed. R. Evid. 801(c).

The court made that point clear to the jury by issuing an appropriate limiting

instruction. See United States v. Whitman, 771 F.2d 1348, 1352 (9th Cir. 1985).

      AFFIRMED.
