                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                             FEB 01 2012

                                                                          MOLLY C. DWYER, CLERK
                                                                           U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA,                        No. 10-50501

              Plaintiff - Appellee,              D.C. No. 3:06-cr-02268-JM-2

  v.
                                                 MEMORANDUM *
ALBERTO NORIEGA-PEREZ,

              Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Southern District of California
                 Jeffrey T. Miller, Senior District Judge, Presiding

                           Submitted November 7, 2011 **
                               Pasadena, California

Before: FERNANDEZ, MOORE,*** and TALLMAN, Circuit Judges.

       Defendant-Appellant Alberto Noriega-Perez (“Noriega”) appeals his

conviction by jury verdict on one count of conspiracy to bring illegal aliens to the


         *
             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).
       ***
             The Honorable Karen Nelson Moore, United States Circuit Judge for
the Sixth Circuit, sitting by designation.
United States for financial gain (8 U.S.C. § 1324(a)(2)(B)(ii); 18 U.S.C. § 371),

one count of conspiracy to harbor illegal aliens (8 U.S.C. § 1324(a)(1)(A)(iii),

(v)(I)), eighteen counts of aiding and abetting bringing illegal aliens to the United

States for financial gain (8 U.S.C. § 1324(a)(2)(B)(ii); 18 U.S.C. § 2), and eighteen

counts of aiding and abetting harboring illegal aliens (8 U.S.C. §

1324(a)(1)(A)(iii), (v)(II)). We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.1

      1.     The Government adduced sufficient evidence of financial motive to

support Noriega’s conviction of bringing an alien into the United States for the

purpose of “private financial gain,” 8 U.S.C. § 1324(a)(2)(B)(ii), on both

conspiracy and aiding and abetting theories of liability. Noriega rented two

properties knowing they would be used as load houses by an alien smuggling

organization. The jury could reasonably infer that his willingness to rent his

properties for illegal use was motivated by financial gain given “‘the lack of any




      1
             A separate published opinion filed simultaneously with this
disposition addresses Noriega’s challenges to the sufficiency of the evidence of (1)
alienage to support his conviction on the substantive counts naming non-testifying
alleged aliens, and (2) an extraterritorial connection to support his conviction of
aiding and abetting bringing aliens to the United States for financial gain.

                                           2
other possible explanation,’” United States v. Tsai, 282 F.3d 690, 697 (9th Cir.

2002) (citation omitted).2

      2.     Noriega’s recorded statements estimating the number of aliens that

would fit in his garage and revealing his intimate knowledge of the activities and

members of the smuggling organization, as well as surveillance video of Noriega

erecting aluminum siding on the chain-link fence around one of his properties,

sufficed to demonstrate that Noriega intended to join—and took overt acts to

further—the alien smuggling conspiracy. See United States v. Hernandez-

Orellana, 539 F.3d 994, 1007 (9th Cir. 2010) (The elements of a “classic” 18

U.S.C. § 371 conspiracy are: “(1) an agreement to engage in criminal activity, (2)

one or more overt acts taken to implement the agreement, and (3) the requisite

intent to commit the substantive crime.” (internal quotation marks and citation

omitted)).

      3.     The district court did not err by instructing the jury that the term

“private financial gain” means “any economic benefit.” Regardless of whether the

Government needed to prove that Noriega intended to gain financially himself, the



      2
              Though the parties dispute whether the substantive “brings to” counts
required proof of Noriega’s intent to gain financially himself, we need not reach
that issue and decline to do so. There is no question that he collected money for
the use of his two properties as load houses in aid of the smuggling venture.

                                           3
instructions on personal gain were not plainly erroneous. Given the evidence of

Noriega’s personal financial motive, any supposed error did not affect his

substantial rights.

       4.     The district court properly denied Noriega’s motion to dismiss the

indictment based on alleged violations of the Speedy Trial Act, 18 U.S.C. §§ 3161

et seq. (“STA”). Almost all of the two-and-a-half years between Noriega’s

arraignment on October 26, 2006, and the filing of his motion to dismiss the

indictment on May 13, 2009, was properly excluded based on pending motions, a

mental examination, an interlocutory appeal, and “ends of justice” continuances.

18 U.S.C. § 3161(h)(1)(A), (1)(C), (1)(D), (7)(A). The district court properly

excluded the entire period of time during which Noriega’s discovery motions were

pending because at each hearing the court explicitly continued the pending motions

to a date certain. United States v. Medina, 524 F.3d 974, 979 (9th Cir. 2008) (“If

such a discovery motion is not ‘continued until a date certain or the happening of

an event certain,’ then the motion is deemed to be ‘under advisement . . . as of the

date of the last hearing or filing of supporting papers, whichever is later.’”

(emphasis added) (citation omitted)). The continuances granted by the district

court were also properly excluded. The record in this case supports the court’s

determination that “the ends of justice” served by the continuances were not


                                           4
outweighed by “the best interest of the public and the defendant in a speedy trial.”

18 U.S.C. § 3161(h)(8)(A).

      5.     The district court also correctly rejected Noriega’s Sixth Amendment

speedy trial claim. Although the three-year delay to trial in this case was

presumptively prejudicial, Noriega was responsible for nearly all of the delay.

United States v. Sutcliffe, 505 F.3d 944, 957 (9th Cir. 2007). He requested and was

granted new counsel four times, and filed numerous other pro se motions while

represented by counsel, including motions to disqualify the court, to disqualify the

Government, and to represent himself.

      6.     Noriega’s right to due process of law under the Fifth Amendment and

compulsory process under the Sixth Amendment was not violated by the release of

seven material witnesses before Noriega (or his counsel) had an opportunity to

interview them. United States v. Valenzuela-Bernal, 458 U.S. 858, 873 (1982);

United States v. Dring, 930 F.2d 687, 693 (9th Cir. 1991).3 Noriega has failed to

show that he was prejudiced by the material witnesses’ release. There is nothing



      3
             Although Noriega makes several references to his rights under Brady
v. Maryland, 373 U.S. 83 (1963), “Dring—but not Brady . . .—applies to
access-to-evidence claims based on illegal witness deportation.” United States v.
Carreno, 363 F.3d 883, 890 (9th Cir. 2004) (citing United States v.
Velarde-Gavarrete, 975 F.2d 672 (9th Cir. 1992)), vacated and remanded on other
grounds, 543 U.S. 1099 (2005).

                                          5
suggesting that those witnesses’ testimony would have been material, non-

cumulative, and favorable to him. Dring, 930 F.2d at 693-94. Additionally,

Noriega has failed to show bad faith by the Government as there is no evidence in

the record that the Government departed from normal deportation procedures or

sought to gain an unfair tactical advantage over him. Id. at 695.

      7.     Noriega’s Sixth Amendment right to be confronted with the witnesses

against him was not violated by an Immigration and Customs Enforcement (“ICE”)

agent’s testimony explaining how ICE identifies material witnesses and then listing

the names of the non-testifying material witnesses in this case. The Confrontation

Clause was not implicated because the ICE agent did not convey the content of any

out-of-court statements made by the non-testifying witnesses. See Ocampo v. Vail,

649 F.3d 1098, 1111 (9th Cir. 2011). Noriega had the opportunity to cross-

examine the ICE agent regarding the determination that the alleged aliens were

material witnesses.

      8.     This Court has received two submissions from Noriega, dated August

30, 2011, and December 8, 2011. Because Noriega is represented by counsel, only

counsel may file motions, and we therefore decline to entertain these submissions.

28 U.S.C. § 1654.

      AFFIRMED.


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