                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 30 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-10106

                Plaintiff-Appellee,             D.C. No.
                                                4:16-cr-01385-DCB-BPV-1
 v.

JUAN ALBERTO NUNEZ,                             MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                            for the District of Arizona
                    David C. Bury, District Judge, Presiding

                            Submitted March 12, 2018**
                             San Francisco, California

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

      Appellant Juan Alberto Nunez stands convicted of four counts of

transporting illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). Now on



      *
             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).
      ***
             The Honorable Eric N. Vitaliano, United States District Judge for the
Eastern District of New York, sitting by designation.
supervised release following a brief custodial sentence, he appeals.

      Nunez complains chiefly that the district court, in its final instructions to the

jury, misstated an element of the crimes charged in the indictment. Our de novo

review, United States v. Kleinman, 880 F.3d 1020, 1031 (9th Cir. 2017), focuses

on whether incorporation of pattern Ninth Circuit Criminal Jury Instruction 5.6

(2014) in the final charge to the jury improperly lightened the government’s

burden of proof. It did not.

      The crimes of conviction, under 8 U.S.C. § 1324(a)(1)(A)(ii), required proof

that Nunez transported illegal aliens and did so either with knowledge or in

reckless disregard of their status as illegal aliens. See United States v. Rodriguez,

880 F.3d 1151, 1158 (9th Cir. 2018). The language of the statute did not require

the government to prove that Nunez also knew that his conduct was unlawful. See

8 U.S.C. § 1324(a)(1)(A)(ii). Since actual knowledge of unlawfulness is not an

element of the mens rea of the charged crimes, the district court’s refusal to omit

the second sentence of the pattern instruction was entirely appropriate. See id.

      The second error Nunez assigns concerns his unusual strategic decision to

offer, during his testimony, evidence of his past crimes of purchasing and using

marijuana. Relying on Federal Rule of Evidence 404(b)(2), Nunez “awkward[ly]”

offered this evidence to provide the jury with an alternate explanation for the

transportation services central to the conduct charged in the indictment. Though


                                          2
rarely used by defendants in criminal cases, Nunez’s evidentiary proffer was

entirely appropriate under Rule 404(b)(2), see, e.g., United States v. Spencer, 1

F.3d 742, 744 (9th Cir. 1992), and, in the ordinary course, the limiting instruction

he requested and the district court declined to give would also have been

appropriate. But given the overwhelming evidence in the record, and particularly

given that the district court gave the jury the general instruction that it could not

convict Nunez for any crime not charged in the indictment, any failure to give the

Rule 404(b)(2) limiting instruction Nunez requested was harmless.

      AFFIRMED.




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